SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10KSB
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 1997; or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 For the transition period from ________ to
________
Commission File No. 33-55254-25
VisionGlobal Corporation
(Exact name of Registrant as specified in its charter)
NEVADA 87-0438636
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
599 Lexington Ave, Suite 2300
New York, New York 10022
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (212) 745-1181
Securities registered pursuant to Section 12(b) of the Act: NONE
Securities registered pursuant to Section 12(g) of the Act: NONE
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. [ ] Yes [X] No
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K (229.405 of this chapter) is not contained herein, and will
not be contained, to the best of registrant's knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this Form 10-K
or any amendment to this Form 10-K. [X]
As of June 17, 1998, the aggregate market value of the voting stock held by
non-affiliates of the registrant is approximately $1,125,000.
Indicate the number of shares outstanding of each of the registrant's classes of
common stock, as of the latest practicable date.
Class Outstanding as of March 31, 1998
- ------------------------------------ --------------------------------
$.001 PAR VALUE CLASS A COMMON STOCK 11,000,000 Shares
DOCUMENTS INCORPORATED BY REFERENCE
Form 8-K for January 26, 1998 Form 8-K for March 3, 1998
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FORM 10-KSB
VISONGLOBAL CORPORATION
December 31, 1977
TABLE OF CONTENTS
Item
Number Description Page
PART I
1. Description of Business....................................... 3
2. Description of Properties..................................... 8
3. Legal Proceedings............................................. 8
4. Submission of Matters to a Vote of Security Holders........... 10
PART II
5. Market for Registrant's Common Stock and Related
Stockholder Matters.......................................... 10
6. Management's Discuss11n and Analysis or Plan of Operation.... 11
7. Financial Statements........................................ 11
8. Changes in and Disagreements with Accountants on
Accounting and Financial Disclosure......................... 11
PART III
9. Directors, Executive Officers, Promoters and Control
Persons; Compliance with Section 16(a) of the Exchange Act.. 12
10. Executive Compensation...................................... 12
11. Security Ownership o12Certain Beneficial Owners and Management. 12
12. Certain relationships and Related Transactions.............. 13
PART IV
13. Exhibits and Reports on Form 8-K............................ 14
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PART I
ITEM 1. Business.
Background
The Company was incorporated under the laws of Utah on April 16, 1986
and subsequently reorganized under the laws of Nevada on December 30, 1993. The
Company's reorganization plan was formulated for the purpose of changing the
state of domicile and provided that the Company form a new corporation in Nevada
which acquired all of the contractual obligations, shareholder rights and
identity of the Utah corporation, and then the Utah corporation was dissolved.
The Company is in the developmental stage, and its operations to date have been
limited to the sale of shares to Capital General Corporation and the gifts of
shares to certain persons. Until the acquisition of VisionCorp, Inc. by the
Company on January 16, 1998, its operations have been dormant.
As stated in the Company's report on Form 8-K for January 26,1998 which
is hereby incorporated by reference, on January 16, 1998 the Company entered
into an agreement with the shareholders of VisionCorp, Inc., a Delaware
corporation, ("VisionCorp") to acquire a 100% interest in said corporation
through an exchange of shares in which the Company issued 10,000,000 shares of
its Class A Common Stock solely in exchange for all of the outstanding Common
Stock of VisionCorp. As a result of this agreement, Shiretalk Investments, Inc.
and Globe Chain Limited, the only shareholders of VisionCorp, were each issued
5,000,000 shares of the Company's Common Stock and became principal shareholders
of the Company. The Company then proceeded to operating the business of
VisionCorp and became an operating entity to the extent of VisionCorp's
business, which is presently limited.
The Financial Statements included with this report relate to the
activities of the Company prior to the date of its acquisition of VisionCorp and
continue to reflect the inactive status of the Company as it was prior to
December 31, 1997. The Company intends to file new and updated Financial
Statements to reflect the combined operations of the Company and VisionCorp.
VisionCorp is at present a holding company whose principal business
will be to foster, develop and manage companies in highly technical operations.
VisionCorp intends to become an operating company itself in the near future.
The acquisition of Geophysical Technology Limited ("Geophysical"), an
Australian corporation, by VisionCorp is subject to the payment by VisionCorp of
$35,000 per month to Geophysical until June, 1998 when it must pay $1,156,000,
the balance due for the purchase of its interest in Geophysical. VisionCorp has
paid the first installment of $35,000 and is now in default of further payments;
however, based on negotiations with the management of Geophysical, the Company
believes that the default will be waived until 30th June of 1998 when the
balance payment is due. At this time the Company does not have any commitment
for obtaining the necessary funds to proceed with the finalization of the
agreement with Geophysical. It should be noted in that respect that there are
always uncertainties in raising funds for new businesses and therefore, no
assurances are given that when needed, the funds necessary to complete the
purchase will be available.
VisionCorp also owns Greatlands WaterWorks Limited, an Australian
corporation, ("Greatlands"), which in turn has an option to acquire a 60%
interest in a worldwide technology for manufacturing and distributing of a
proprietary water treatment material which absorbs heavy metal contaminants from
industrial waste water, municipal water, boiler water and cooling water.
Greatlands considers this product, known as the "Kaolin Amorphous Derivative"
(or "KAD"), to
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be an extremely efficient and high capacity adsorbent to remove heavy metal
contaminants from water. KAD is expected to be inexpensive to make and safe to
use. This material can be regenerated after use and made available to be used
again, which makes KAD an attractive alternative because of the reduction in
operating costs KAD can provide. In order to obtain the licensing rights,
Greatlands must spend over $900,000 during the first year in development costs
and once Greatlands has invested a total of $1,700,000 in development costs, the
option for a 60% interest in the license will automatically be exercised with a
commitment to invest a further $1,200,000. Once a total of $3,200,000 has been
invested, any further funds spent will translate into an increased equity
position.
During the previous fiscal year the Company continued to be inactive
and devoted its time to finding a merger or acquisition partner, all of which
resulted in the acquisition of VisionCorp.
Since the information in this report is preliminary only and does not
contain the financial statements required to be filed, it is recommended that
all potential investments in the Company or its securities be postponed until a
final amendment to this report is made and filed.
Business of Geophysical
Having completed the acquisition of VisionCorp, the Company is no
longer inactive and has succeeded to the business of VisionCorp as presently
existing.
Subject to certain conditions (see below), VisionCorp has acquired a
60% voting interest via partly paid shares in Geophysical Technology Limited
("Geophysical"), an Australian company, which developed and owns imaging
technology for detection of metallic and non- metallic objects under the ground.
Although organized in 1996 for the purpose of combining the commercial
operations, assets, staff and intellectual property of the Geophysical Research
Institute of the University of New England (in Australia) and specialist
instrument manufacturer Geophysical Technology Pty Ltd. (an Australian
corporation), predecessors of Geophysical have been operating for 18 years. The
combination of these entities gives Geophysical the ability to supply
technologically advanced sub-surface detection and mapping services to the
environmental, engineering and mineral exploration markets. Geophysical operates
on a world-wide basis by providing its services either directly or through
sub-contracting agreements with local companies. Geophysical maintains offices
in Sydney, Australia and Armidale, NSW Australia and its current or recent
operations have been conducted in Europe, the Middle East, South East Asia,
Australia and North America.
While proficient in most high-definition geophysical techniques,
Geophysical believes that its competitive advantage is derived from a range of
in-house technologies that provide performance and efficiency benefits to its
clients which may be customized to provide solutions to site-specific problems.
The instruments used by Geophysical are operated from a range of hand-held
equipment, all-terrain vehicles and very low flying airborne platforms.
Geophysical's core technology includes the TM-4 multi-sensor
magnetometer system, the TM-4e transient electromagnetic detector, specialized
ground-probing radar systems and the patented "Sub-Audio Magnetics" method for
simultaneously mapping magnetic, electromagnetic, resistivity and induced
polarization parameters. The TM-4e digital metal detector technology is also
immune to conductive and magnetic interference from geophysical sources
(mineralized soils). Current versions of Geophysical's proprietary technologies
are not made available to competitors; although, Geophysical has been called
upon to serve the range of management requirements of the Australian Department
of Defense.
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Geophysical has a staff of 12 professional geophysicists, electronic
engineers and scientific programmers. Field technicians are provided by
sub-contract arrangements with local contractors or are otherwise engaged on a
project by project basis. Geophysical also maintains a research and development
staff which is closely involved in field operations to ensure that all
technology development is driven by the requirement for practical solutions.
The principal markets in which Geophysical operates are: (1)
development of detection equipment and clearance techniques for anti-personnel
land mines and ; (2) detection and removal of unexploded ordnance; (3) aerial
and land based exploration and mapping for all minerals, precious and
non-precious metal deposits; (4) the detection and mapping of sub-surface
chemical and metallic, military and industrial, hazardous contaminants; and (5)
geotechnical engineering site investigation. Geophysical has also been involved
in archaeological site investigation, which in addition to assisting in
archaeological study is particularly useful where building must progress and
land needs to be cleared for this purpose.
Geophysical's services include the following:
Large Area Site Assessment. Geophysical has developed an efficient
sampling strategy that is able to determine the distribution of unexploded
ordinance contamination in number of items per acre (or hectare). This
information is helpful in permitting assessment of property for sale and for
letting contracts for clearing such property.
Ferrous and Non-Ferrous Unexploded Bomb Detection and Mapping.
Geophysical can provide digital unexploded ordnance detection systems capable of
providing quantifiable detection performance, even in mineralized soil
environments. Geophysical's capability is sensitive enough to identify
non-ferrous (i.e. plastic) unexploded ordnance in favourable circumstances.
Active Military Range Management. Geophysical is capable of providing a
sub-surface mapping service to assist in active military firing and bombing
range management. Geophysical is capable of collecting and storing magnetic and
electromagnetic data for retaining such information in a geographic information
system data base.
Detection and Mapping of Underground Tanks, Drums and Services.
Environmental contamination is often associated with buried drums and
underground storage tanks. This is routine application of Geophysical's
technological ability. In addition, many other non-ferrous services such as
pipes, cables and tunnels can be mapped by one of a range of proprietary
techniques selected by Geophysical for each requirement on a case by case basis.
Rock Competency. Geophysical is able to determine the competency of
rock and its ability to be ripped by a bulldozer or other equipment through
measurement of seismic velocity. This is of course valuable information to
construction and mining sites.
Hard Rock Intrusion. Geophysical is experienced in the application of
high definition magnetics to the detection and mapping of thin (or thick)
volcanic intrusion that may be present at proposed excavation and cutting sites
or coal mine development involving the continuous cutting of "soft rock."
Sand and Soil Thickness. Where knowledge of sand or soil thickness is
important to engineering design it is most effectively determined with
Geophysical's ground probing radar system.
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Cavity Detection. In limestone environments, cavities can present an
engineering problem. Geophysical is able to locate and map near-surface cavities
using radio frequency electromagnetic instrumentation designed for this purpose.
Water Exploration. Exploration for shallow ground water in alluvial
environments is a routine application for ground probing radar and seismic
refraction technologies. Electromagnetic and electrical resistivity methods may
also be used effectively in this application where traces of salinity can be
expected or where water may be hosted in fault fracture zones.
Archaeological Site Investigation. Geophysical pioneered an efficient
application of high definition geophysical mapping of archaeological site
investigation. Archaeological projects have been performed by Geophysical staff
members throughout Asia where the targets have ranged from buried stone
foundations, grave sites, pottery kilns, bronze and gold furnaces through to
shipwrecks.
In addition, Geophysical has done pioneering work in many areas of
detection, some of which are (1) the development of an optically pumped magnetic
sensor and building the first man- portable, automatically positioned, digital,
recording magnetometer used in magnetic exploration technology; and (2)
Sub-Audio Magnetics is a man-portable instrument which simultaneously measures
magnetic, electromagnetic, electrical and induced polarization, a development
that won for Geophysical the Grahame Sands Award of the Australian Society of
Exploration Geophysicists in 1995 for "innovation in applied geoscience." This
instrument is the only electrode-less receiver system capable of measuring
induced polarization.
As previously described, Geophysical also makes use of low-level,
multi-sensor airborne systems which are designed to optimize the ratio of a
geological signal from sources below the depth of weathering to magnetic noise
arising from near-surface sources. Optimal radiometric data acquisition from a
low elevation flight path adds another high definition parameter to
Geophysical's service. Gravity surveying instruments are also used to be
combined with digital terrain information acquired from helimag surveys to
provide quality information for terrain correction. Geophysical also uses ground
probing radar in determinations of alluvial reserves and precise definition of
mineralization boundaries in advance of extraction.
Geophysical has resources which are fully proficient in manipulating
and interpreting satellite remote sensing (MSS, TM, Spot and Radarsat) data.
This is an efficient large area geological mapping tool used in places where
little geological information is available. While satellite sensing imagery does
not map far into the sub-surface, it does reveal near surface structural detail
such as major faults, folds, geological unit boundaries and surface drainage
patterns.
Geophysical believes that the land mine detection and removal business
is a $33 billion market and that the average cost of detecting and removal of a
land mine is approximately $1,000 per mine. In the opinion of Geophysical, it
has one of the most sensitive technologies for this purpose.
The Company believes that the business of Geophysical is at a most
opportune moment because the United Nations and the Red Cross each have new
initiatives to rid the world of land mines.
Geophysical's technology has been developed over the last 15 years and
in all detection categories has performed at the forefront if not outright best,
in each of the three years that the United States Department of Defense has
hosted its "Advanced Technology Demonstration Program" at the Jefferson Proving
Ground.
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Additionally, Geophysical has been operating within the Australian
mineral exploration market over the past eighteen years and the unexploded
ordnance industry worldwide (U.S.A. and Europe) since 1986. The technology has
recently been developed and enhanced further for the detection of anti-personnel
land mines.
Geophysical's mapping technology can also be used from a plane or
helicopter and hence can rapidly and inexpensively map out mineral deposits over
a large area with substantial accuracy.
Geophysical also has a formal alliance with Lockheed Martin whereby
Geophysical will be subcontracted for UXO (unexploded ordnance) detection on all
Lockheed Martin clearance contracts.
Business of Greatlands
The KAD technology previously referred to above in the caption entitled
"Background" is used in the purification of water. This technology is presently
owned by the University of Queensland, Queensland, Australia and will be
licensed to Greatlands by UniQuest, the commercialization company of the
University of Queensland. The Greatlands option to acquire a license (this
option can be terminated under the terms of the agreement by either party prior
to the initial payment being received by UniQuest) in the technology from
UniQuest will apply to the following industries: (1) industrial waste water
treatment; (2) municipal water treatment; (3) boiler water treatment; and (4)
cooling water treatment. These elements make up the majority of the $300 billion
a year water treatment industry.
KAD is presently licensed to a company in Australia which is not
related to VisionCorp or the Company and which is engaged in the business of
mine site remediation in Australia, North America, parts of Asia and Africa.
Greatlands will not, therefore, be licensed in this industry.
The water treatment industry is predicted to grow substantially over
the next few years as developed countries continue to reduce discharge limits
and developing countries begin to enforce environmental standards.
As stated above, it will be necessary for Greatlands to expend
approximately $1,700,000 in development costs for KAD to acquire the licensing
rights for the water treatment product. Upon Greatlands attaining full licensing
rights, UniQuest will be granted a 40% interest in Greatlands, which means that
UniQuest will have a residual interest in the technology of 40% after
acquisition by Greatlands. Initial investigations are being undertaken for
removal of manganese metal from town and city water reserves and for the removal
of ammonia effluents from fertilizer manufacturing plants.
As stated above, VisionCorp's interest in the businesses described
requires substantial payment of funds, the receipt of which cannot be assured.
There are more specific details to these requirements in the form of written
agreements between the parties which are filed with this Report.
At the present time, there are no operations in Greatlands which is
awaiting funding from the Company.
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Competition.
There is world-wide competition for each of the industries engaged in
by the Company through its subsidiary VisionCorp, Inc. A number of very large
companies are engaged in underground mine and unexploded bomb detection and
elimination. Many of these companies have greater political influence with
governments where these items exist, far greater capital and personnel than the
Company. The Company also will experience competition from local companies and
individuals engaged in this activity, all of whom will have the advantage of
proximity.
The Company will compete with these companies and individuals by
offering, in the Company's opinion, a better technology and service with a high
degree of accuracy and ability to offer more assurance of clearing ordnance from
a particular area.
The Company will also be in competition with a number of companies
engaged in out- source exploration programs offered by mining companies with
mineral discovery operations. Many of these companies have greater resources in
the form of capital, personnel and equipment than the Company. The Company
intends to compete by again, in its opinion, offering greater technology.
Although the Company's technology in these fields is perceived by it as
being advanced, it is not universally recognized or proven at this time.
There is also intense world-wide competition for water treatment and
environmental projects. The Company will be involved in competition in this area
with many very large corporations engaged in water treatment operations. Many of
these companies have universally known reputations in the industry with far
greater resources than the Company. In order to gain recognition, the Company
will be required to do extensive marketing of its product.
The Company will compete in this industry by offering, in its opinion,
an inexpensive and highly capable method of clearing water of impurities through
the use of KAD.
ITEM 2. Properties.
The Company does not directly own any properties and temporarily
utilizes small office space in an office suite in New York City at a rental of
$4,000 per month which includes telephone and secretarial service. The Company
has no agreements with respect to the maintenance or future acquisition of
office facilities; however, if full time operations are achieved through its
interests in VisionCorp, it is anticipated that the office of the Company will
be moved to more suitable space. The Company does not have a long-term lease for
its present facilities.
ITEM 3. Legal Proceedings.
Prior to the change in control of the Company which took place when it
was acquired by Shiretalk Investments, Inc. and Globe Chain Limited on January
16, 1998, as previously reported in the Company's 8-K report for January 26,
1998, the Company was involved in proceedings with the State of New Jersey, the
State of Utah and the Securities and Exchange Commission which occurred because
of the manner in which its initial shares of common stock were sold. The former
control persons are no longer involved with the Company as directors or officers
and have sold the substantial part of their respective interests to new
shareholders. The new control persons do not have any similar background of
securities violations and intend to attempt to clear these matters with the
States of New Jersey and Utah.
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More specifically, the following litigation took place between the
Company and the various regulatory agencies:
On January 7, 1994, the Bureau of Securities of the State of New Jersey
filed a complaint in the matter of Capital General Corporation, David R. Yeaman
and 74 other named defendants, Nevada and Utah corporations including the
Company, which complaint proposed that civil monetary penalties totalling
$30,000 be assessed against Capital General Corporation for alleged violations
of the Uniform Securities Law (1967), N.J.S.A. 49:3-47 et. seq. by (1) selling
to 24 New Jersey residents between April 1986 and May 1991, securities in 25 of
the 74 above referred to respondent corporations named in the proceeding,
including the Company, which were neither registered nor exempt from
registration, and (2) making untrue statements of material fact and omitting to
state material facts in connection with said New Jersey sales in 6 of the 74
above referred to resident corporations named in the proceeding, not including
the Company. Also on January 7, 1994, the Bureau of Securities of the State of
New Jersey, based on substantially similar allegations as in the above referred
complaint, issued its Order Denying Exemptions and to Cease and Desist. This
order summarily denied the exemptions contained in N.J.S.A. 49:3- 50(b), (1),
(2), (3), (9), (11) and (12) of the securities of Capital General Corporation
and the other 74 respondent corporations, including the Company, except that
excluded from the summary denial of the exemption contained in N.J.S.A.
49-3-50(b)(12) is the Offer of Rescission by Capital General Corporation to 24
New Jersey residents pursuant to the offer of rescission which began about April
28, 1993. This order also ordered Capital General Corporation and David Yeaman
to Cease and Desist from offering or selling any securities in blind pool
corporations into, or from the State of New Jersey.
Capital General and David Yeaman filed answers denying the material
allegations of said complaint and resisting the imposition of civil monetary
penalties, and the Order Denying Exemptions and to Cease and Desist.
Subsequently the issues raised in said complaint and order were settled by
agreement between the Bureau of Securities and Mr. Yeaman and Capital General
Corporation in a consent order dated July 11, 1994 and approved by an
administrative law judge of the State of New Jersey Office of Administrative Law
September 2, 1994. Under the terms of the consent order, all claims in the
complaint against all named respondents were settled by the payment of a $3,000
civil penalty, and the order was modified so that it does not apply to 27 of the
respondent companies; however, the order does still apply to the Company.
During 1986 and 1987, Capital General gifted very small percentages of
stock (usually 100 shares to each donee) in the following companies, which
includes the Company, to approximately 1,000 persons or entities: Amenity, Inc.,
Dogmatic, Inc., Mystic Industries, Inc., Highland Mfg., Inc., Kowtow, Inc.,
Noble Industries, Inc., Oryan Capital Corporation, Pegasus Star Enterprise,
Inc., Showstoppers, Inc., Hightide, Inc., Grandeur, Inc., Fantastic Industries,
Inc., Jugglar, Inc., Xebec Galleon, Inc., Golden Home Health Care Equipment
Centers, Inc., Nighthawk Capital, Inc., Instrument Development Corporation,
Panther Industries, Inc., Owl Enterprises, Inc., Quail, Inc., GBS Technologies
Corporation, H & B Carriers, Inc., Florida Growth Industries, Inc., Macaw, Inc.,
Longhorn Enterprise, Inc., Koala Corporation, Yahwe Corporation, Star Dolphin,
Inc., Jackal, Inc., Hyena Capital, Inc., Gopher, Inc., Flamingo Capital, Inc.,
Egret, Inc., Cetacean Industries, Inc., Bonito, Inc., Alpaca, Inc., Zeus
Enterprise, Inc., Tamarind, Inc., Saber, Inc., Radar, Inc., Quiescent
Corporation, Vanadium, Inc., Upsilon, Inc., Why Not?, Inc., Bestmark, Inc.,
Missouri Illinois Mining Co., Inc.
Capital General did not register the gifts of shares in these companies
with the Securities Division of the State of Utah or with the Securities
Exchange Commission because it believed these gifts to be outside the scope of
the Utah Uniform Securities Act and the Securities Act of 1933 in as much as
such acts require registration for sales and do not require registration of
gifts. Nevertheless, in connection with the distribution of shares of its
subsidiaries, Capital General was
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found by the Utah Securities Advisory Board, in two decisions affirmed by the
Utah State Courts, to have violated the registration provisions of the Utah
Uniform Securities Act. See In re Amenity Inc., No. SD-86-11 (Utah Sec. Adv. Bd.
February 18, 1987) aff'd C87-2625 (3d Dist. Ct. September 18, 1987) aff'd sub
nom Capital General Corp. v. Utah Dep't of Business Reg., 777 P.2d 494, 498
(Utah Ct. App.) cert. denied, 781 P.2d 873 (Utah S. Ct. 1989); In re H&B
Carriers Inc., No. 87-09-28-01 (Utah Sec. Adv. Bd., Apr. 15, 1988) aff'd No.
88-5900053 (3d Dist. Ct. Sept 10, 1990) aff'd sub nom Capital General Corp. v.
Utah Dep't of Business Reg., Case No 91- 196 (Utah Ct. App. February 10, 1992.
All of the remaining companies listed above were parties to the H&B Carriers
order.
Both of these actions sought suspension of transactional exemptions
respecting the shares of these companies pursuant to Section 14 (3) of the Utah
Uniform Securities Act. Capital General defended both actions on the grounds
that the Utah Uniform Securities Act did not apply to gifts of securities, that
the gifts were good faith gifts specifically exempted by the Act, and that in
any event even if it had "sold" shares in violation of the Act, suspension of
transactional exemptions was not an authorized remedy under the statute. These
defenses were rejected at the administrative agency level, and upon judicial
review at the District Court level and by the Utah Court of Appeals.
Capital General Corporation and David Yeaman are no longer affiliated
with the Company as officers, directors or control persons.
ITEM 4. Submission of Matters to a Vote of Security Holders.
No matter was submitted to the Company's security holders for a vote
during the fiscal year ended December 31, 1997.
PART II
ITEM 5. Market for Registrant's Common Stock and Related Stockholder Matters.
Trading in the Company's Common Stock has been on a very limited basis.
Active trading on a regular basis began after the Company's acquisition of
VisionCorp in January, 1998. The principal market on which the Company's
securities are traded is the over-the-counter market on the OTC Bulletin Board.
The following table shows for the periods indicated the range of high and low
bid quotes for the Common Stock of the Company which were obtained from the
National Quotation Bureau and are between dealers, do not include retail
mark-ups, mark-downs, or other fees or commissions, and may not necessarily
represent actual transactions.
COMMON STOCK TRADING HISTORY
High Low
Quarter ended December 31, 1997 0.25 0.25
Quarter ended March 31, 1998 4.00 3.75
There was no other trading reported.
On June 17, 1998 the reported high bid price for the Company's Common
Stock was $1.125. The number of record holders of the Company's Common Stock on
June 18, 1998 was 721. There currently are three market makers for the Company's
securities.
The Company has not paid any dividends. There are no plans to pay any cash
dividends in the foreseeable future. The declaration and payment of dividends in
the future, of which there
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can be no assurance, is determined by the Board of Directors based upon
conditions then existing, including earnings, financial condition, capital
requirements and other factors. There are no restrictions on the Company's
ability to pay dividends.
ITEM 6. Management's Discussion and Analysis of Financial Condition and Results
of Operation.
Until its acquisition of VisionCorp on January 16, 1998, the Company
had no operational history. The Company's ownership of VisionCorp provides it
only with secondary operations through VisionCorp's 60% interest in Geophysical
Technology Limited ("Geophysical"), an Australian corporation which is actually
engaged in business. In order for VisionCorp to continue its interest in
Geophysical, it will be necessary for it to spend approximately US $1,300,000 in
development costs for Geophysical's technology. These funds are presently not
available to VisionCorp or the Company and the Company is now primarily occupied
with the financing of this project. Similarly, VisionCorp, through its ownership
of Greatlands WaterWorks Limited, has an option to acquire a 60% interest in a
water purification process described above, after the expenditure of
approximately US $1,700,000.
However, for the period indicated in this report, there were no
operations and the financial statements reflect that fact. For the first quarter
of 1998 the only operations of the Company will be through its indirect
ownership of 60% of Geophysical, as indicated above.
The Company should still be considered a development stage enterprise
subject to all of the risks of a new and inexperienced business.
As of May 1, 1998, the Company had no liquidity and no presently
available capital resources, such as credit lines, or guarantees, etc.
As indicated in the Financial Statements, there has been no change from
year to year due to the inactivity of the Company for the period reported. The
Financial Statements clearly show that the Company has no assets and no
liabilities for the period and no operations were conducted for the fiscal year
ended December 31, 1997.
The Company's future will depend on its ability to raise sufficient
funds to acquire its interest in Geophysical and in the technology for
development of the water purification process through Greatlands. At this time
there are no commitments for such funds and no assurances that the Company will
be successful in obtaining financing under acceptable terms or under any
circumstances.
ITEM 7. Financial Statements.
The response to this item is submitted as a separate section to this
report (see Pages F-1 to F-8).
ITEM 8. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure.
There have been no changes in and no disagreements with accountants on
accounting and financial disclosure.
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PART III
ITEM 9. Directors and Executive Officers of the Registrant.
The following table shows the positions held by the Company's officers
and directors. The directors were appointed in January, 1998 and will serve
until the next annual meeting of the Company's stockholders, and until their
successors have been elected and have qualified. The officers were appointed to
their positions, and continue in such positions, at the discretion of the
directors.
Martin G. Wotton, Age 36, is presently a director of Greatlands Group
of Companies Ltd., Brisbane, Australia, where his principal responsibility is
investments and venture capital. He has held this position since 1996. From 1995
to 1996, Mr. Wotton was associated with the stock brokerage firm of Burdett,
Buckeridge & Young, Ltd., Sydney, Australia. From 1990-1995 Mr. Wotton was
associated with the stock brokerage firm of McKinley Wilson and Co. Ltd.,
Sydney, Australia.
B. Bruce Freitag, Age 67. Mr. Freitag has been a practicing attorney
for 38 years in the area of securities and business law. He is formerly a
director of Thor Energy Resources, Inc., an American Stock Exchange oil
exploration company, Tyler, Texas, where he was chairman of the audit committee
and a member of the compensation committee. Management of Thor recently
repurchased all of the shares on the market and Thor became a privately-owned
corporation. Mr. Freitag was also a member of the Board of Directors of Tucker
Drilling Company, Inc., a contract oil drilling company, San Angelo, Texas.
Tucker recently merged with Paterson Energy Corporation.
ITEM 10. Executive Compensation.
The Company has made no arrangements for the remuneration of its
officers and directors, except that they will be entitled to receive
reimbursement for actual, demonstrable out-of-pocket expenses, including travel
expenses if any, made on the Company's behalf. No remuneration has been paid to
the Company's officers or directors during the previous fiscal year ended
December 31, 1997. There are no agreements or understandings with respect to the
amount or remuneration that officers and directors are expected to receive in
the future. Management takes no salaries from the Company and does not
anticipate receiving any salaries until actual operations commence. No present
prediction or representation can be made as to the compensation or other
remuneration which may ultimately be paid to the Company's management at this
time. Substantial changes may occur in the structure of the Company and its
management when operations begin. At such time, contracts may be negotiated with
management requiring the payment of annual salaries or other forms of
compensation which cannot presently be anticipated.
ITEM 11. Security Ownership of Certain Beneficial Owners and Management.
The following table sets forth at the date of this Report, the
stock ownership of each person known by the Company to be beneficial owner of
five percent (5%) or more of the Company's Common Stock and by all officers and
directors as a group:
12
<PAGE>
<TABLE>
<CAPTION>
Name and Address Amount of Percent
of Beneficial Owner Beneficial Ownership of class
- ---------------------------------------- ----------------------------------- ----------------------
<S> <C> <C>
Shiretalk Investments, Inc. 5,000,000 45.5%
599 Lexington Ave
New York, New York 10022
Globe Chain Limited 5,000,000 45.5%
Omar Hodge Building
Wickham Cay 1
PO Box 362
Road Town, Tortola
British Virgin Islands
Martin G. Wotton 5,000,000(1)(2) 45.5%
599 Lexington Ave., Suite 2300
New York, NY 10022
B. Bruce Freitag 0 0.0%
599 Lexington Ave., Suite 2300
New York, NY 10022
All Officers and 5,000,000 45.4%
Directors as a Group
(Consisting of two Per-
sons) (2)
</TABLE>
- -----------------------
(1) Shiretalk Investments, Inc., Globe Chain, Ltd. and Martin G. Wotton
may be deemed to be the Company's "parents" and "promoters," pursuant to the
Rules and Regulations promulgated under the 1933 Act.
(2) Martin G. Wotton is the sole owner of the outstanding capital stock
of Shiretalk Investments, Ltd. and, since he is in a position to control the
actions of Shiretalk, the beneficial interest in the shares of Common Stock held
by Shiretalk are attributable to Mr. Wotton.
ITEM 12. Certain Relationships and Related Transactions.
Shiretalk Investments, Inc. and Globe Chain Limited, the Principal
Shareholders of the Company entered into an agreement with the Company in
January, 1998 in which it was agreed that the Company would acquire all of the
Common Stock of Shiretalk and Globe in VisionCorp, Inc. in exchange for a total
of 10,000,000 shares of the Company's Common Stock. The Agreement was negotiated
at "arms length" with the then management of the Company. At the time of the
consummation of the agreement, the Company's Common Stock was traded
infrequently on the OTC Bulletin Board at approximately $0.25 per share.
13
<PAGE>
PART IV
ITEM 13. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits required to be filed pursuant to Item 601 of Regulation S-K:
3(i) Amendment to Articles of Incorporation showing change of name.
10 (a) Agreement between the Company and VisionCorp, Inc.
(b) Agreement between VisionCorp, Inc. and Geophysical Technology
Ltd.
(c) Agreement between Greatlands Investments (Australia) Limited and
UniQuest Limited
(d) Novation Deeds
(b) Reports on Form 8K
The Company did not file any reports on Form 8-K
during the fiscal year ended December 31, 1997; however, two
reports on Form 8-K were filed after the fiscal year ended,
each of which are hereby incorporated by reference. The first
report was dated January 26, 1998 and reported the acquisition
of VisionCorp, Inc. and the second report was dated March 3,
1998 and reported the change of name from Flamingo Capital,
Inc. to VisionGlobal Corporation.
14
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) 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.
VISIONGLOBAL CORPORATION
Date: June 17, 1998 By: /s/ Martin G. Wotton
---------------------
Martin G. Wotton, President
Chief Executive Officer and
Chief Financial Officer
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
Date: June 17, 1998 /s/ Martin G. Wotton
Martin G. Wotton, President,
Chief Executive Officer, Chief
Financial Officer and Director
Date: June 17, 1998 /s/ B. Bruce Freitag
B. Bruce Freitag, Secretary/Treasurer,
and Director
15
<PAGE>
SMITH & COMPANY
A PROFESSIONAL CORPORATION OF
CERTIFIED PUBLIC ACCOUNTANTS
MEMBERS OF: 10 WEST 100 SOUTH, SUITE 700
AMERICAN INSTITUTE OF SALT LAKE CITY, UTAH 84101
CERTIFIED PUBLIC ACCOUNTANTS TELEPHONE: (801) 575-8297
UTAH ASSOCIATION OF FACSIMILE: (801) 575-8306
CERTIFIED PUBLIC ACCOUNTANTS E-MAIL: [email protected]
- --------------------------------------------------------------------------------
INDEPENDENT AUDITOR'S REPORT
Board of Directors
VisionGlobal Corporation
(Formerly Flamingo Capital, Inc.)
(A Development Stage Company)
We have audited the accompanying balance sheets of VisionGlobal Corporation
(formerly Flamingo Capital, Inc.) (a development stage company) as of December
31, 1997 and 1996, and the related statements of operations, changes in
stockholders' equity, and cash flows for the years ended December 31, 1997,
1996, and 1995, and for the period of April 16, 1986 (date of inception) to
December 31, 1997. These financial statements are the responsibility of the
Company's management. Our responsibility is to express an opinion on these
financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of VisionGlobal Corporation
(formerly Flamingo Capital Inc.) (a development stage company) as of December
31, 1997 and 1996, and the results of its operations, changes in stockholders'
equity, and its cash flows for the years ended December 31, 1997, 1996, and
1995, and for the period of April 16, 1986 (date of inception) to December 31,
1997 in conformity with generally accepted accounting principles.
The accompanying financial statements have been prepared assuming that the
Company will continue as a going concern. The Company has no operations and has
a substantial need for working capital. This raises substantial doubt about its
ability to continue as a going concern. The accompanying financial statements do
not include any adjustments that may result from the outcome of this
uncertainty.
/s/ Smith & Company
CERTIFIED PUBLIC ACCOUNTANTS
Salt Lake City, Utah
March 25, 1998
F-1
<PAGE>
VISIONGLOBAL CORPORATION
(Formerly Flamingo Capital, Inc.)
(A Development Stage Company)
BALANCE SHEETS
<TABLE>
<CAPTION>
12/31/97 12/31/96
----------------- -----------------
ASSETS
CURRENT ASSETS
<S> <C> <C>
Cash in bank $ 0 $ 0
----------------- -----------------
TOTAL CURRENT ASSETS 0 0
OTHER ASSETS
Organization costs (Note 1) 0 0
----------------- -----------------
0 0
----------------- -----------------
$ 0 $ 0
================= =================
LIABILITIES & EQUITY
CURRENT LIABILITIES
Accounts payable $ 0 $ 0
----------------- -----------------
TOTAL CURRENT LIABILITIES 0 0
STOCKHOLDERS' EQUITY
Common Stock $.001 par value:
Authorized - 100,000,000 shares
Issued and outstanding 1,000,000 shares 1,000 1,000
Additional paid-in capital 1,000 1,000
Deficit accumulated during
the development stage (2,000) (2,000)
----------------- -----------------
TOTAL STOCKHOLDERS' EQUITY 0 0
----------------- -----------------
$ 0 $ 0
================= =================
</TABLE>
See Notes to Financial Statements.
F-2
<PAGE>
VISIONGLOBAL CORPORATION
(Formerly Flamingo Capital, Inc.)
(A Development Stage Company)
STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
4/16/86
Year Year Year (Date of
ended ended ended inception) to
12/31/97 12/31/96 12/31/95 12/31/97
------------- --------------- ---------------- ----------------
<S> <C> <C> <C> <C>
Net sales $ 0 $ 0 $ 0 $ 0
Cost of sales 0 0 0 0
------------- --------------- ---------------- ----------------
GROSS PROFIT 0 0 0 0
General & administrative
expenses 0 0 0 2,000
------------- --------------- ---------------- ----------------
NET LOSS $ 0 $ 0 $ 0 $ (2,000)
============= =============== ================ ================
Net income (loss) per weighted
average share $ .00 $ .00 $ .00
============= =============== ================
Weighted average number of
common shares used to compute
net income (loss) per weighted
average share 1,000,000 1,000,000 1,000,000
============= =============== ================
</TABLE>
See Notes to Financial Statements.
F-3
<PAGE>
VISIONGLOBAL CORPORATION
(Formerly Flamingo Capital, Inc.)
(A Development Stage Company)
STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY
<TABLE>
<CAPTION>
Deficit
Accumulated
Common Stock Additional During
Par Value $0.001 Paid-in Development
Shares Amount Capital Stage
-------------- -------------- ----------------- --------------
<S> <C> <C> <C> <C>
Balances at 4/16/86
(Date of inception) 0 $ 0 $ 0 $ 0
Issuance of common
stock (restricted)
at $.002 per share
at 6/16/86 1,000,000 1,000 1,000
Net loss for period (1,950)
-------------- -------------- ----------------- --------------
Balances at 12/31/86 1,000,000 1,000 1,000 (1,950)
Net loss for year (10)
-------------- -------------- ----------------- --------------
Balances at 12/31/87 1,000,000 1,000 1,000 (1,960)
Net loss for year (10)
-------------- -------------- ----------------- --------------
Balances at 12/31/88 1,000,000 1,000 1,000 (1,970)
Net loss for year (10)
-------------- -------------- ----------------- --------------
Balances at 12/31/89 1,000,000 1,000 1,000 (1,980)
Net loss for year (10)
-------------- -------------- ----------------- --------------
Balances at 12/31/90 1,000,000 1,000 1,000 (1,990)
Net loss for year (10)
-------------- -------------- ----------------- --------------
Balances at 12/31/91 1,000,000 1,000 1,000 (2,000)
Net income for year 0
-------------- -------------- ----------------- --------------
Balances at 12/31/92 1,000,000 1,000 1,000 (2,000)
Net income for year 0
-------------- -------------- ----------------- --------------
Balances at 12/31/93 1,000,000 1,000 1,000 (2,000)
Net income for year 0
-------------- -------------- ----------------- --------------
Balances at 12/31/94 1,000,000 1,000 1,000 (2,000)
Net income for year 0
-------------- -------------- ----------------- --------------
Balances at 12/31/95 1,000,000 1,000 1,000 (2,000)
Net income for year 0
-------------- -------------- ----------------- --------------
Balances at 12/31/96 1,000,000 1,000 1,000 (2,000)
Net income for year 0
-------------- -------------- ----------------- --------------
Balances at 12/31/97 1,000,000 $ 1,000 $ 1,000 $ (2,000)
============== ============== ================= ==============
</TABLE>
See Notes to Financial Statements.
F-4
<PAGE>
VISIONGLOBAL CORPORATION
(Formerly Flamingo Capital, Inc.)
(A Development Stage Company)
STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
4/16/86
Year Year Year (Date of
ended ended ended Inception) to
12/31/97 12/31/96 12/31/95 12/31/97
-------------- -------------- -------------- --------------
OPERATING ACTIVITIES
<S> <C> <C> <C> <C>
Net income (loss) $ 0 $ 0 $ 0 $ (2,000)
Adjustments to reconcile
net income (loss) to
cash used by operating
activities:
Amortization 0 0 0 50
-------------- -------------- -------------- --------------
NET CASH USED BY
OPERATING ACTIVITIES 0 0 0 (1,950)
INVESTING ACTIVITIES
Organization costs 0 0 0 (50)
-------------- -------------- -------------- --------------
NET CASH USED BY
INVESTING ACTIVITIES 0 0 0 (50)
FINANCING ACTIVITIES
Proceeds from sale of
common stock 0 0 0 2,000
-------------- -------------- -------------- --------------
NET CASH PROVIDED BY
FINANCING ACTIVITIES 0 0 0 2,000
-------------- -------------- -------------- --------------
INCREASE IN CASH
AND CASH EQUIVALENTS 0 0 0 0
Cash and cash equivalents
at beginning of year 0 0 0 0
-------------- -------------- -------------- --------------
CASH & CASH EQUIVALENTS
AT END OF YEAR $ 0 $ 0 $ 0 $ 0
============== ============== ============== ==============
</TABLE>
See Notes to Financial Statements.
F-5
<PAGE>
VISIONGLOBAL CORPORATION
(Formerly Flamingo Capital, Inc.)
(A Development Stage Company)
NOTES TO FINANCIAL STATEMENTS
December 31, 1997
NOTE 1: SUMMARY OF SIGNIFICANT ACCOUNTING PRINCIPLES
Accounting Methods:
The Company recognizes income and expenses based on the accrual method
of accounting.
Dividend Policy:
The Company has not yet adopted any policy regarding payment of
dividends.
Organization Costs:
The Company amortized its organization costs over a five year period.
Income Taxes:
The Company records the income tax effect of transactions in the same
year that the transactions enter into the determination of income,
regardless of when the transactions are recognized for tax purposes.
Tax credits are recorded in the year realized. Since the Company has
not yet realized income as of the date of this report, no provision for
income taxes has been made.
In February, 1992, the Financial Accounting Standards Board adopted
Statement of Financial Accounting Standards No. 109, Accounting for
Income Taxes, which supersedes substantially all existing authoritative
literature for accounting for income taxes and requires deferred tax
balances to be adjusted to reflect the tax rates in effect when those
amounts are expected to become payable or refundable. The Statement was
applied in the Company's financial statements for the fiscal year
commencing January 1, 1993.
At December 31, 1997 a deferred tax asset has not been recorded due to
the Company's lack of operations to provide income to use the net
operating loss carryover of $2,000 which expires as follows:
Year Ended Expires Amount
December 31, 1986 December 31, 2001 $ 1,950
December 31, 1987 December 31, 2002 10
December 31, 1988 December 31, 2003 10
December 31, 1989 December 31, 2004 10
December 31, 1990 December 31, 2005 10
December 31, 1991 December 31, 2006 10
---------------
$ 2,000
===============
NOTE 2: DEVELOPMENT STAGE COMPANY
The Company was incorporated under the laws of the State of Utah on
April 16, 1986 as Flamingo Capital, Inc. and has been in the
development stage since incorporation. On December 30, 1993, the
Company was dissolved as a Utah corporation and reincorporated as a
Nevada corporation. On March 3, 1998, the name was changed to
VisionGlobal Corporation.
NOTE 3: CAPITALIZATION
On the date of incorporation, the Company sold 1,000,000 shares of its
common stock to Capital General Corporation for $2,000 cash, for an
average consideration of $.002 per share. The Company's authorized
stock includes 100,000,000 shares of common stock at $.001 par value.
NOTE 4: RELATED PARTY TRANSACTIONS
The Company neither owns or leases any real property. Office services
were provided, without charge, by Capital General Corporation. Such
costs are immaterial to the financial statements, and, accordingly,
have not been reflected therein. The officers and directors of the
Company are involved in other business activities and may, in the
future, become involved in other business opportunities. If a specific
business opportunity becomes available, such persons may face a
conflict in selecting between
F-6
<PAGE>
VISIONGLOBAL CORPORATION
(Formerly Flamingo Capital, Inc.)
(A Development Stage Company)
NOTES TO FINANCIAL STATEMENTS (continued)
December 31, 1997
NOTE 4: RELATED PARTY TRANSACTIONS (continued)
the Company and their other business interests. The Company has not
formulated a policy for the resolution of such conflicts.
NOTE 5: SUBSEQUENT EVENTS
On January 16, 1998, the Company entered into an agreement with all of
the shareholders of VisionCorp, Inc., ("VisionCorp") a Delaware
corporation, to acquire all of the outstanding shares of common stock
of VisionCorp, so that VisionCorp would become a wholly owned
subsidiary of the Company. The consideration for the purchase was the
issuance of ten million shares of the Company's common stock in
exchange for all of the outstanding shares of VisionCorp.
Since the Company issued ten million shares of its common stock in the
transaction to VisionCorp shareholders, the holders of all of the
common stock of VisionCorp became control shareholders in the Company.
VisionCorp is at present a holding company whose principal business
will be to foster, develop and manage companies in highly-technical
businesses. VisionCorp also intends to become an operating company in
the near future.
At the present time, VisionCorp has an option to acquire a 60% interest
in Geophysical Technology Limited ("Geophysical"), an Australian
company, which developed and owns imaging technology for detection of
metallic and non-metallic objects under the ground. Geophysical has
been operating for 18 years.
The principal markets in which Geophysical operates are: (1) detection
of anti-personnel land mines; (2) detection and removal of unexploded
ordnance; and (3) aerial and land based exploration and mapping of
precious metals deposits.
Geophysical believes that the landmine detection and removal business
is a $33 billion market and that the average cost of detecting and
removing a landmine is approximately $1,000 per mine. In the opinion of
Geophysical, it has one of the most sensitive technologies for this
purpose.
The Company believes that the business of Geophysical is at a most
opportune moment because the United Nations and the Red Cross each have
new initiatives to rid the world of land mines.
Geophysical's technology has been developed over the last 15 years and
has won the United States Department of Defense's annual Jefferson
Airbase UXO detection trials (the world standard) for small ordnance
detection over the past three years.
Additionally, Geophysical has been operating within the Australian
mineral exploration market over the past eighteen years and the
unexploded ordnance industry worldwide (U.S.A. and Europe) since 1986.
The technology has recently been developed and enhanced further for the
detection of anti-personnel land mines.
Geophysical's mapping technology can also be used from a plane or
helicopter and hence can rapidly and inexpensively map out mineral
deposits over a large area with substantial accuracy.
Geophysical has a formal alliance with Lockheed Martin whereby
Geophysical will be subcontracted for UXO detection on all Lockheed
Martin clearance contracts.
VisionCorp is required to pay $35,000 per month to Geophysical until
June, 1998 when it must pay $1,156,000, the balance due for the
purchase of its interest in Geophysical. VisionCorp has paid the first
installment of $35,000 and believes it has a commitment for the balance
due to be paid in June. All funds paid to the Company will be applied
for the acquisition of its businesses.
F-7
<PAGE>
VISIONGLOBAL CORPORATION
(Formerly Flamingo Capital, Inc.)
(A Development Stage Company)
NOTES TO FINANCIAL STATEMENTS (continued)
December 31, 1997
NOTE 5: SUBSEQUENT EVENTS (continued)
While VisionCorp believes it has the necessary funding to conclude the
acquisition of a 60% interest in Geophysical, there are always
uncertainties in raising funds for new businesses and therefore, no
assurances are given that the funds necessary to complete the purchase
will be available when needed.
VisionCorp also owns a 100% interest in Greatlands WaterWorks Limited
("Greatlands"), which in turn holds an option to acquire a worldwide
license for manufacturing and distributing of a proprietary water
treatment material which absorbs toxic contaminants from water.
Greatlands considers this product, known as the "Kaolin Amorphous
Derivative" (or "KAD"), to be an extremely efficient and high capacity
absorbent to remove contaminants from water. KAD is inexpensive to make
and safe to use. This material can be regenerated after use and made
available to be used again, which makes KAD an attractive alternative
because of the large reduction in operating costs KAD can provide.
The KAD technology is presently owned by the University of Queensland,
Queensland, Australia. The Greatlands option to acquire an interest in
the technology from the University of Queensland will apply to the
following industries: (1) waste water treatment; (2) drinking water
treatment; (3) boiler water treatment; and (4) cooling water treatment.
These elements make up the majority of the $300 billion a year water
treatment industry.
KAD is presently licensed to a company in Australia which is not
related to VisionCorp or the Company and which is engaged in the
business of mine site remediation in Australia for the treatment of
mine site contamination in Australia. Greatlands will not, therefore,
be licensed in this industry.
The water treatment industry is predicted to grow substantially over
the next few years as developed countries continue to reduce discharge
limits and developing countries begin to enforce environmental
standards.
VisionCorp's ownership of Greatlands will require an initial payment of
$135,000 to maintain the option for exercise into the full license
rights. The full license will not be granted until an excess of
$1,700,000 has been provided by Greatlands for the development of KAD
for specific application to the above mentioned industries. Upon
attaining full licensing rights, the University of Queensland will be
granted a 40% interest in Greatlands, which means that the University
of Queensland will have a residual interest in the technology of 40%
after acquisition by Greatlands. Initial development is currently being
undertaken for removal of metals from town and city water reserves and
for the removal of ammonia from fertilizer.
As stated above, VisionCorp's interest in the businesses described
above requires substantial payment of funds, the receipt of which
cannot be assured. There are more specific details to these
requirements in the form of written agreements between the parties
which are not presently available and which will be filed as an
amendment to this filing.
F-8
<PAGE>
EXHIBITS
Filed With
Annual Report on Form 10-KSB
VISIONGLOBAL CORPORATION
<PAGE>
EXHIBIT 3(i)
<PAGE>
Filed In The Office of the Secretary of State
of Nevada February 6, 1998 - C17606-93
CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
FLAMINGO CAPITAL, INC.
We the undersigned President and Secretary of FLAMINGO CAPITAL, INC. do
hereby certify:
The Board of Directors of said corporation at a meeting duly
convened, held on the 6th day of February, 1998 adopted a resolution to amend
the original Articles of Incorporation as follows:
Article I is hereby amended to read as follows:
The name of the corporation is VisionGlobal Corporation
Except as so amended the Articles of Incorporation are hereby
ratified, confirmed and approved in the original form previously filed.
The number of shares of the corporation outstanding and entitled
to vote on an amendment to the Articles of Incorporation is 11,000,000; that
said change and amendment has been approved by a majority vote of the
stockholders holding at least a majority of each class of stock outstanding and
entitled to vote thereon.
/s/ Martin G. Wotton
Martin G. Wotton, President
/s/ B. Bruce Freitag
B. Bruce Freitag, Secretary
State of New Jersey )
: ss.
County of Bergen )
On February 6, 1998, personally appeared before me, a Notary Public, Martin
G. Wotton and B. Bruce Freitag, president and Secretary, respectively, of
Flamingo Capital, Inc. who acknowledged that they executed the above instrument.
/s/ Margaret E. Simko
Signature of Notary
My Commission Expires 3/31/99
<PAGE>
EXHIBIT 10(a)
<PAGE>
ACQUISITION AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION, entered into this 16th day of
January, 1998, by between and among:
FLAMINGO CAPITAL, INC., a corporation organized under the laws of
the State of Nevada, with its principal offices located at 3098 South Highland
Drive, Suite 460, Salt Lake City, Utah (hereinafter referred to as the "Company"
or the "Acquiror");
VISIONCORP, INC., a corporation organized under the laws of
Delaware, with principal offices at 39 Sackerman Ave. North Halledon, NJ 07508
(hereinafter referred to as "Vision" or "Acquiree"); and
The persons named and set forth in Schedule A annexed hereto and
made a part hereof (hereinafter referred to as the "Sellers" or "Shareholders"),
being all of the shareholders of Acquiree;
All of the foregoing are sometimes collectively referred to as "the
Parties."
W I T N E S S E T H :
WHEREAS, the Company desires to acquire all of the outstanding Shares of
capital stock of Vision, which shares are owned by the Sellers (hereinafter
referred to as the "Acquiree Shares"), in exchange for a total of 10,000,000
shares of the common stock of the Company (hereinafter referred to as the
"Company's Common Stock"), so that upon completion of the transaction, Vision
will become a wholly-owned subsidiary of the Company pursuant to a plan of
reorganization pursuant to Section 368 (a)(1)(B) of the Internal Revenue Code of
1986, in which all of the voting stock of Vision will be exchanged solely for
voting stock of the Company as hereinafter provided; and
WHEREAS, The Company confirms that (i) there is no other class of
securities authorized, either issued and outstanding or authorized, except for
100,000,000 shares of the Company's Common Stock, par value $0.001 per share;
and (ii) there are no warrants, options, rights or other obligations of any
nature and kind whereby the Company would be obligated to issue any shares of
common stock or of any other type or kind of security, except as set forth on
Schedule B; and (iii) there are not more than 1,000,000 shares of common stock
issued; and
WHEREAS, Acquiree confirms that the shares of Common Stock of Acquiree,
listed in Schedule A annexed hereto, are all the shares of Common Stock of
Acquiree issued and outstanding, and that no other person or entity has any
right or entitlement to receive any further shares of common stock, or of any
other class or type of security of Acquiree; and
WHEREAS, the parties hereto desire to reorganize the management and
operations of Vision and the Company in accordance with the Plan of
Reorganization hereafter stated in Paragraph 1.
NOW, THEREFORE, in consideration of the promises and mutual
representations, warranties and covenants herein contained, the
13
<PAGE>
Parties hereto adopt this Acquisition Agreement and Plan of Reorganization (the
"Agreement"), and hereby agree as follows:
1. Exchange of Shares and Plan of Reorganization. The Parties
hereby agree that at the Closing Date hereinafter specified and subject to the
conditions hereof, all of Vision's voting stock shall be acquired by the Company
in exchange solely for 10,000,000 shares of the Company's voting Common Stock,
and Vision shall become a wholly owned subsidiary of the Company, and the
management and operations of Vision and the Company shall be reorganized as
determined by the Parties. The Shareholders of Vision specifically agree to
exchange their shares as hereby indicated in Schedule A for the number of shares
of the Company's Common Stock indicated after their names, all in a transaction
intended to be a tax free exchange pursuant to Section 368(a)(1)(B) of the
Internal Revenue Code of 1986. It is understood that when received by the
Shareholders, the Company's Common Stock will be deemed "restricted securities"
as defined by Rule 144 promulgated under the Securities Act of 1933, as amended,
(the "Act").
2. Delivery of Shares. On the Closing Date as set forth herein and subject
to the conditions hereinafter set forth, the Shareholders will deliver to the
Company stock certificates and/or stock powers representing all of the issued
and outstanding shares of Vision's Common Stock, duly endorsed, so as to make
the Company the sole owner and holder thereof, free and clear of all claims and
encumbrances; and the Company shall deliver certificates representing 1,500
shares of the Company's Common Stock to the Shareholders so as to make the
Shareholders the sole owner and holder thereof, free and clear of all claims and
encumbrances, which Shares will be subject to the restrictions on transfer
described herein. All of the shares of Common Stock issued to the Shareholders
shall be fully paid and non-assessable.
3. Representations of Vision and the Shareholders. Vision hereby represents
and warrants to the Company, with respect to its operations and financial
condition, and the Shareholders of Vision hereby represent and warrant to the
Company, with respect to the matters specified in Sections 4.2, 4.3, 4.8, 4.10
and 4.12, that the representations set forth below are true and correct as of
the date hereof and will be true and correct as of the Closing Date (as
hereinafter defined):
3.1 Organization and Capitalization. Vision is validly organized
and existing in good standing under the laws of the State of
Delaware, having been incorporated thereunder on December 31, 1997
, and on the Closing Date will have a total of 1,500 shares of
Common Stock, $.01 par value, of Common Stock authorized, of which
1,500 shares will be duly issued and outstanding and owned by the
Shareholders, in the amounts set forth on Schedule A annexed
hereto, which shares constitute the Acquiree Shares to be
transferred to the Company hereunder and represent all of the
issued and outstanding shares of capital stock of the Company;
3.2 Corporate Action Taken. Vision has taken all requisite
corporate action required under its Certificate of Incorporation,
By-Laws and/or the Laws of the State of Delaware, to the extent
necessary to enter into this Agreement and to carry out the terms
and conditions to be performed by it. Similarly, the Shareholders
represent that they are under no impediment or constraint, legal
or otherwise, which would prevent them from entering into this
Agreement;
3.3 Liens, Claims and Encumbrances. The Acquiree Shares are duly
and validly issued, fully paid and non-assessable, are free and
clear of all voting trusts, agreements, arrangements, liens and
all other encumbrances, claims, equities and liabilities of every
nature, and Vision, having duly taken all corporate action
required therefore, had the unqualified right to issue the
Acquiree Shares to the Shareholders and to deliver clear and
unencumbered title thereto. Except as otherwise described in
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this Agreement, there are no outstanding options, contracts,
calls, commitments or demands of any character relating to the
authorized, but previously unissued, shares of common stock of
Vision. Vision's common stock is the sole class of stock
authorized by its Articles of Incorporation and Vision is under no
obligation, legal or otherwise, to establish any such other class
of common stock, or any other type of security. The Shareholders,
and each of them, have the unqualified right to transfer and
dispose of the Acquiree Shares as contemplated herein, and upon
the closing hereunder, clear and unencumbered title thereto shall
be conveyed to the Company;
3.4 Qualification. Vision is, or will promptly become, duly
qualified as a foreign corporation in good standing in each state
in which such qualification is necessary except where the failure
to be so qualified would not materially adversely affect Vision;
3.5 Execution and Performance Approved. The execution of this
Agreement by Vision, and the performance by the Vision of its
covenants and undertakings hereunder have been duly authorized by
all requisite corporate action, and approved by the Board of
Directors and the Shareholders of Vision; Vision has the corporate
power and authority to enter into this Agreement and perform the
covenants and undertakings to be performed by it hereunder, and is
under no impediment which would adversely affect its ability to
consummate or prohibit it from consummating this transaction;
3.6 Financial Statements. Vision has delivered, or on or before
the Closing Date will deliver, to the Company copies of its
balance sheet as at the end of its most recent fiscal year, such
financial statements having been internally prepared by
management, together with any applicable income statements, also
prepared by management. Said financial statements are complete,
accurate and fairly present the financial condition of Vision as
of the dates thereof, all in conformity with generally accepted
accounting principles applied on a consistent basis. Vision has no
material liabilities, either fixed or contingent, not reflected in
such financial statements, other than contracts or obligations in
the ordinary and usual course of business, and no such contracts
or obligations in the usual course of business constitute liens or
other liabilities which, if disclosed, would alter substantially
the financial condition of the Company as reflected in such
financial statements. All liabilities for the current year and for
taxes due to any governmental authority having jurisdiction for
all prior years, including any income and sales taxes or other
taxes for which Vision has any liability, have been paid in full
or have been adequately provided for in said financial statement
in accordance with generally accepted accounting principles.
3.7 Taxes. Vision has filed all federal, state, county and local
income, excise, property and other tax returns, forms or reports
which are due or required to be filed by it prior to the date
hereof, and has paid or made adequate provisions for the payment
of all taxes, fees or assessments which have or may become due
pursuant to such returns or pursuant to any assessments received;
3.8 Litigation. Vision is not involved in any pending litigation
or governmental investigation or proceeding, and to the best of
Vision's knowledge, no material litigation, claim, assessment or
governmental investigation or proceeding is threatened which might
reasonably be expected to result in any material change in the
business or condition, financial or otherwise, of Vision or in any
of its properties or assets, or which might reasonably be expected
to result in any material liability on the part of Vision or which
questions the validity of this Agreement, or might reasonably be
expected to otherwise adversely affect Vision, or of any action
taken or to be taken
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pursuant to or in connection with the provisions of this
Agreement. The Shareholders represent that they, and each of them,
are not involved in any pending material litigation or
governmental investigation or proceeding which would, to the best
of their knowledge and information, affect their ownership of the
Acquiree Shares or their ability to enter into this Agreement or
to carry out its terms and conditions or which would, in the case
of officers, directors or employees of Vision, impair their
ability to carry out their duties as such officers, directors or
employees now or in the future. The Shareholders further covenant
that to the best of their knowledge and information, no such
material litigation, claim, assessment or governmental
investigation or proceeding of any kind exists or is threatened
either against them or Vision.
3.9 Other Agreements. Vision has not breached, and there are no
pending or threatened claims or any legal basis for a claim that
Vision has breached, any of the terms or conditions of any
material agreement, contract or commitment to which it is a party
or is bound, and the execution and performance hereof will not
violate any law or any provisions of any agreement to which Vision
is subject;
3.10 Compliance with State and Federal Requirements Concerning
Organization and Issuance of Stock. Vision has complied with all
state, federal and local laws in connection with its formation,
issuance of securities, organization, capitalization and
operation, and no contingent liabilities have been threatened, or
claims made or threa tened with respect thereto, including claims
for violation of any state or federal securities laws and there is
no basis for any such claim or liability except in all such cases
for violations and claims which individually or in the aggregate
would not ma terially adversely affect Vision. No consent,
approval, authorization or order of, or registration,
qualification, designation, declaration or filing with, any
governmental authority is required on the part of either Vision or
Shareholders in connection with the execution and delivery of this
Agreement, or the carrying out of any of the transactions
contemplated hereby;
3.11 By-Laws and Certificate of Incorporation. All copies of
Vision's Certificate of Incorporation, By-laws, and all other
documents and records of Vision and all amendments thereto that
have been furnished, or prior to the Closing Date, will be fur
nished to the Company by or on behalf of Vision and are or will be
true and complete;
3.12 Power to Enter Into Agreement. Vision and Shareholders have
full power, authority and legal right to enter into this Agreement
and to consummate the transac tions contemplated hereby; the
execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby and the compliance by Vision and
the Shareholders with the provisions hereof will not: (i) conflict
with or result in a breach of any provisions of, or constitute a
material default (or an event which, with notice or lapse of time
or both, would constitute a material default) under, or result in
the creation of any material lien, security interest, charge or
encumbrance upon the Acquiree Shares or any of the material
property or assets of Vision under any of the terms, conditions or
provisions of its Certificate of Incorporation or By-Laws or any
material note, bond, mortgage, indenture, license, agreement or
other instrument or obligation to which either Vision or the
Shareholders are a party, or by which they are bound; or (ii)
violate any order, writ, injunction, decree, statute, rule or
regulation applicable to Vision or Shareholders or any of their
respective properties or assets;
3.13 Existing Agreements. Vision does not have any agreement,
contract, lease, commitment or obligation (including employment,
advisory or consulting agreements,
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employee benefit plans or labor contracts or commitments or
guarantee agreements for the benefit of any third party) other
than as set forth on Schedule B annexed hereto;
3.14 Liabilities to Shareholders. Vision does not owe any money,
securities, or other property to either the Shareholders or any
member of their families or to any company controlled by any of
said persons, directly or indirectly. To the extent that the
Company may have any such liability to any such person or entity
or any member of their families, such liability shall be, as at
the Closing Date, forever irrevocably released and discharged;
3.15 Delivery of Shares. At the Closing, Shareholders will each
deliver to the Company duly executed copies of an investment
letter, in form and content satisfactory to its counsel and to
counsel for the Company, the form of which shall be supplied to
the Shareholders not less than one day prior to Closing.
3.16 Vision further acknowledges that it is informed of certain
actions taken by the Securities and Exchange Commission and the
Bureau of Securities of New Jersey and Utah in connection with the
principals of the Company, as disclosed in the Company's 10-K
report for the year ended December 31, 1996, particularly the
actions taken against David Yeaman. Seller's counsel has also made
certain disclosures to Buyer's counsel concerning the various
actions taken.
4. Warranties and Representations of the Company. The Company
hereby makes the following representations and warranties to Vision and the
Shareholders, each of which shall be true as of the Closing Date and each of
which shall be deemed to be independently material and to have been relied upon
by Vision and the Shareholders in connection with this Agreement:
4.1 Organization. The Company is a corporation duly organized,
validly existing by virtue of the laws of Nevada, and is in good
standing under the laws thereof; neither the nature of its
business nor the character and location of its properties requires
it to be qualified or licensed to do business in any other
jurisdiction. Since its incorporation, no claim has been asserted
by any governmental authority that the nature of its business, or
the character and location of the properties owned or operated by
the Company makes qualification or licensing to do business
necessary in any jurisdiction in which it is not so qualified or
licensed;
4.2 Capitalization. The authorized capital stock of the Company on
the Closing Date will be 100,000,000 Shares of Common Stock, $.001
par value per share, of which 1,000,000 shares will be issued and
outstanding on the Closing Date. All of the issued shares are
fully paid and nonassessable shares of the Company's common stock.
As of the date hereof, there are no outstanding subscriptions,
options, warrants, calls, commitments, agreements or convertible
securities to which the Company is a party or by which it is
bound, calling for or requiring the issuance of common stock of
the Company, except as otherwise specifically authorized by this
Agreement, nor are there any voting, registration rights or other
agreements relating to the issued Common Stock.
4.3 Subsidiaries. The Company presently has no subsidiaries nor
does it own any interest in any corporation, partnership or
proprietorship;
4.4 Ownership. As of the date of this Agreement, no shareholder of
the Company owns more than five percent (5%) of the total number
of shares of common stock
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outstanding except as set forth on Schedule E annexed hereto,
without giving effect to the shares to be issued in connection
with this Agreement;
4.5 Records. Within 30 days after the Closing Date, the present
officers and directors of the Company will provide to the Company
and Shareholders all necessary financial records and information
in order for the Company's Auditors to prepare audited financial
statements in such form and for such periods as are required to be
filed by acquired companies under Form 8-K pursuant to the
requirements of the Act, the Securities Exchange Act of 1934, as
amended, (the "Exchange Act") and/or Regulation S-X promulgated
thereunder. As of the date hereof, the Company has no assets and
no liabilities and there have been no material changes in its
financial condition since the date of the latest financial
statements to be provided. All financial statements to be provided
hereunder will be true, complete, accurate and fairly present the
financial condition of the Company as of the date thereof, and the
results of its operations for the periods covered, all in
conformity with generally accepted accounting principles applied
on a consistent basis. All liabilities for the current and for all
prior years, including any income and sales taxes or other taxes
for which the Company has any liability, have been paid in full or
have been adequately provided for in said financial statements in
accordance with generally accepted accounting principles;
4.6 Tax Returns. The Company has filed all federal, state, county
and local income, franchise, property and other tax returns, forms
or reports which are due or required to be filed by it prior to
the date hereof, and has paid or made adequate provisions for the
payment of all taxes, fees or assessments which have or may become
due pursuant to such returns or pursuant to any assessments
received;
4.7 Books of Account. The respective books of account and other
records of the Company are true, complete and correct, and
accurately present or reflect all of the transactions entered into
by the Company or to which it has been a party, or to which its
properties and assets may be subject;
4.8 Financial Changes, Default etc. Since the date of the most
recent financial statements described in the paragraph 4.5 above,
there have not been (i) any adverse changes in the financial
condition or in the operations of the Company; (ii) any damage,
destruction or loss, whether covered by insurance or not,
adversely affecting the properties and business of the Company;
(iii) any declaration, setting aside of payment of any dividend in
respect of the capital stock of the Company; (iv) any issuance of
capital stock by the Company or securities exercisable or
exchangeable for capital stock, any distribution (whether by way
of reclassification, recapitalization, stock split or otherwise)
in respect of the capital stock of the Company, or any redemption
or other acquisition of any such stock; (v) any contract or
transaction entered into by the Company except this Agreement or
as otherwise approved by the Company in writing; (iv) any default
in any contract, obligation or debt of the Company; or (vii) any
other event or condition of any character pertaining to and
adversely affecting the assets or business or prospective business
of the Company taken as a whole;
4.9 Compliance with Law. The Company has complied with all state,
federal and local laws in connection with its formation, issuance
of securities, organization, capitalization and operation, and no
contingent liabilities have been threatened, or claims made or
threatened with respect to said operations, formation or
capitalization, including claims for violation of any state or
federal securities laws and, to the best of
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it's knowledge, no basis for any such claim or liability exists.
All filings required to be made by the Company pursuant to federal
or state securities laws have been made and are current, comply as
to form with all requirements of the securities laws and contain
no material misstatement or omit any facts required so as not to
be misleading. The Company is required to file reports with the
Securities and Exchange Commission under Section 13 or 15 of the
Exchange Act and to the best knowledge of the Company, is in full
compliance therewith. Attached hereto as Exhibits 2 and 3 are true
and complete copies of the certificate of incorporation and
by-laws of the Company, as amended to date. All copies of any
other documents of the Company either heretofore delivered to the
Company, or which shall upon execution hereof or at the Closing be
delivered by the Company, are true and complete copies thereof. No
consent, approval, authorization or order of, or registration,
qualification, designation, declaration or filing with, any
governmental authority is required on the part of the Company in
connection with the execution and delivery of this Agreement, or
the carrying out of any of the transactions contemplated hereby;
except that the filing of an 8-K report will be necessary after
closing.
4.10 Litigation. The Company is not involved in any pending
litigation or govern mental investigation or proceeding, and to
the best knowledge of the Company and its officers and directors,
no litigation, claim, assessment or governmental investigation or
proceeding is pending or threatened, except as may be disclosed on
Schedule F annexed hereto and in the Company's 10-K report. the
Company has not breached, nor is there any pending or threatened
claim or any legal basis for a claim to the effect that the
Company has breached, any of the terms or conditions of any
agreement, con tract or commitment to which it is a party or is
bound and the execution and performance hereof will not result in
a violation of any agreement, law or governmental regulations to
which the Company is subject;
4.11 Existing Agreements and Commitments. The Company does not
have any agreement, contract, lease, commitment, debt or liability
or obligation (including employment, advisory or consulting
agreements, employee benefit plans or labor contracts or
commitments or guarantee agreements for the benefit of any third
party) contingent or fixed, matured or unmatured other than an
agreement with National Stock Transfer Company as transfer agent
for the Company;
4.12 Authorized Shares, Restrictions. The Acquiror Shares to be
issued to the Shareholders have been duly authorized, and when
issued in exchange for the Acquiree Shares as provided herein,
will be validly issued, non-assessable and fully paid under the
laws of the state of Nevada, and will be issued in a non-public
offering pursuant to exemptions from registration under federal
and state securities laws and will have all the same dividend,
voting and other rights, powers, preferences, limitations and
restrictions as all of the shares of common stock of the Company
issued and outstand ing as of the date hereof, except that such
Acquiror Shares shall be deemed "restricted shares" as defined in
Rule 144 promulgated under the Act and shall bear a restricted
legend with stop transfer instructions at the Company's Transfer
Agent. All of the Acquiror Shares will, when delivered, be free
and clear of all voting trusts, agreements, arrangements, liens
and all other encumbrances, claims, equities and liabilities of
every nature, and the Company, having duly taken all corporate
action required therefor, has the unqualified right to issue the
Acquiror Shares and to deliver clear and unencumbered title
thereto. the Company is under no obligation, legal or otherwise,
to establish any such other class of common stock, or any other
type of security except as disclosed herein before;
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4.13 Execution and Performance. The execution of this Agreement by
the Company, and the performance by the Company of its covenants
and undertakings hereunder have been duly authorized by all
requisite corporate action, and approved by the Board of
Directors, subject to approval by the Shareholders of the Company,
and the Company has the corporate power and authority to enter
into this Agreement and perform the covenants and undertakings to
be performed by it hereunder, and is under no other impediment
which would adversely affect its ability to consummate or prohibit
it from consummating the transactions contemplated hereby. This
Agreement has been duly authorized, executed and delivered by the
Company and constitutes a valid and legally binding obligation of
the Company enforceable in accordance with its terms;
4.14 Records of Meetings. The records of directors' and
stockholders' meetings of the Company contain a true and complete
record of all corporate proceedings of the Company since its date
of incorporation, and comply in all respects with all statutes,
laws, rules, and regulations applicable to them and to their
respective businesses and properties;
4.15 Power and Authority. The Company has full power, authority
and legal right to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of
this Agreement, the consummation of the transactions contemplated
hereby and the compliance by the Company with the provisions
hereof will not: (i) conflict with or result in a breach of any
provisions of, or constitute a default (or an event which, with
notice or lapse of time or both, would constitute a default)
under, or result in the creation of any lien, security interest,
charge or encumbrance upon the Acquiror Shares or any of the
property or assets of the Company under any of the terms,
conditions or provisions of the Articles of Incorporation or
By-Laws of the Company or any note, bond, mortgage, indenture,
license, agreement or other instrument or obligation to which the
Company is a party, or by which it is bound; or (ii) violate any
order, writ, injunction, decree, statute, rule or regulation
applicable to the Company or any of its properties or assets;
4.16 Officers and Directors. The only officers, directors and
employees of the Company are listed in Exhibit 4 hereto. All such
persons shall have duly resigned as of the Closing. At the
Closing, there shall be appointed to fill the outstanding
vacancies on the Company's Board of Directors Thomas deRacz
Dempsey, Martin G. Wooton and B. Bruce Frietag, who shall be
nominated by the Company;
4.17 Investment Company Status. The Company is not an "investment
company" as defined in the Investment Company Act of 1940;
5. Interim Operations. Between the date hereof and the Closing Date the
Company and Vision will conduct their operations as follows:
5.1 Carrying on Business. Except as herein provided, the Company
will carry on its business in substantially the same manner as
heretofore and the assets, properties and rights now owned by it
will be maintained, as far as practicable, in the usual and
ordinary course of business, to the same extent, under the same
insurance coverage and in the same condition as on the date of
this Agreement; except with the consent of the Company, Vision
shall engage in no activity or business other than as is necessary
to effect the transactions contemplated by this Agreement;
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5.2 No Disposal of Property. Except as herein provided, or as may
hereafter be agreed to in writing by the parties, neither the
Company nor Vision shall sell or dispose of any property or
assets, nor will they encumber any property or assets;
5.3 No Sales of Securities. Neither the Company nor Vision will,
except with the written consent of the other party, issue or sell,
or issue the right to subscribe to, any shares of capital stock or
securities exchangeable or exercisable for capital stock, or
acquire for a consideration any shares of capital stock or
warrants, or declare or pay any dividend on any capital stock;
5.4 No Amendments to By-Laws or Charter Documents. Except as
contemplated herein, neither the Company nor Vision will, absent a
written consent of the other party, amend their respective
Certificates of Incorporation or By-Laws except as specifically
contemplated by this Agreement;
5.5 Exchange of information. The Company and Vision shall, at
reasonable times, permit access to their respective properties and
their respective books and records for the purpose of examination
by any party and their respective officers, directors, attorneys,
accountants and representatives, and each party shall furnish to
the other, upon request, any information reasonably required in
respect of such property, assets and business;
5.6 No Debt to be Incurred. Neither the Company nor Vision will
incur any indebt edness or contingent liability, or enter into any
contract or agreement except, in the case of the Company, in the
ordinary course of business;
5.7 No Business Acquisitions. Neither the Company nor Vision will
acquire any business or assets of any going business, nor will
they merge or consolidate with or into any other corporation, nor
will they change the character of their respective businesses;
5.8 Notice of Matters not in Ordinary Course. The Company will
promptly advise Vision in writing of any material adverse change
in its financial condition, business or affairs arising from
matters occurring not in the usual course of business; the Vision
will promptly advise the Company in writing of any adverse change
in its financial condition, business or affairs.
6. Conditions Precedent to the Acquisition.
A. The obligations of Vision to consummate and effect the
acquisition contemplated hereunder shall be subject to the satisfaction, on or
prior to the Closing Date, of the following conditions:
(1) Except as otherwise contemplated by this Agreement, the
representations and warranties of the Company and Shareholders
herein contained shall be true and correct as of the Closing Date
with the same effect as though made on the Closing Date and the
Company shall have performed all obligations and complied with all
covenants required by this Agreement to be performed or complied
with by it prior to such Closing Date; and the Company shall have
delivered to Vision a certificate dated at such Closing Date and
signed by the Chairman of the Board of Directors, the Presi dent,
Treasurer, or any Vice President of the Company to the foregoing
effect, to the best knowledge of the person giving such
certificate;
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(2) There shall not be any litigation to restrain or invalidate
the acquisition, the defense of which would, in the judgment of
the Board of Directors of Vision made in good faith and based upon
the advice of counsel, involve expense or lapse of time that would
be materially adverse to the interests of each party;
(3) Vision shall have received the Certificate of the President of
the Company, dated the Closing Date, with respect to the following
matters:
(a) the Company is a corporation duly organized, validly
existing and in good standing under the laws of the state of
Nevada and it has all requisite corporate power and
authority to carry on the business now conducted and to own
and operate its respective properties;
(b) The authorized capital stock of the Company is as stated
in Paragraph 4.1 hereof. All of the issued shares are duly
authorized, validly issued, fully paid and nonassessable
shares of the Company's common stock. There are no
outstanding subscriptions, options, warrants, calls,
commitments, agreements or convertible securities to which
the Company is a party or by which it is bound, calling for
or requiring the issuance of common stock of the Company
except as otherwise specifically authorized by this
Agreement. The Company is not bound by any other agreements
relating to its capital stock (including registration rights
agreements); to the best of such counsel's knowledge, there
are no voting or other agreements among the Company's
shareholders relating to its capital stock;
(c) All necessary corporate proceedings to approve this
Agreement and the execution, delivery and performance
thereof and all other proceedings required by law or by the
provisions of this Agreement have been taken, and the
Company has the full right, power and authority to enter
into this Agreement and to carry out the terms thereof
without further action;
(d) To the best knowledge of such counsel, except as herein
indicated, there are no suits, actions, claims or
proceedings pending or threatened against the Company, nor
to the knowledge of such counsel is the Company a party to
or subject to any order, judgment, decree, agreement,
stipulation or consent of or with any court or
administrative agency, nor, to the best knowledge of such
counsel, is any investigation pending or threatened against
the Company.
(4) At or prior to the Closing, the Company shall have paid or
otherwise duly satisfied any remaining obligations of the Company
as specified on Exhibit 6 annexed hereto.
(5)) The Board of Directors of the Company in accordance with the
Certificate of Incorporation, By-Laws and statutes affecting the Company shall
have voted in favor of this Agreement and the acquisition contemplated hereunder
and the Company shall have delivered at the Closing Date a Consent in Writing
duly signed by the Secretary to the Board of Directors certifying such vote in
conformity with the provisions of the Laws of the State of Nevada;
B. The obligations of the Company to consummate and effect the
acquisition contemplated hereunder shall be subject to the satisfaction, on or
prior to the Closing Date, of the following conditions:
(1) The representations and warranties of Vision herein contained
shall be true and correct as of and at the date of this Agreement
and as of the Closing Date of the
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acquisition; and Vision shall have performed all obligations and
complied with all covenants required by this Agreement to be
performed or complied with by it prior to the Closing Date; and
Vision shall have delivered to the Company a certificate at such
date, signed by the Chairman of the Board of Directors or the
President and Treasurer to the foregoing effect, to the best
knowledge of the person giving such certificate;
(2) The Company will own on the Closing Date of the acquisition as
hereinafter defined not less than 100% of all the outstanding
common stock of Vision as a result of the exchange of the Acquiree
Shares for the Acquiror Shares;
(3) There shall not be any litigation to restrain or invalidate
the exchange, the defense of which would, in the judgement of the
Board of Directors of the Company, made in good faith and based
upon the advice of counsel, involve expense or lapse of time that
would be adverse to the interest of the Shareholders or the
Company;
(4) There shall not be any governmental proceeding, claim or other
litigation pending or threatened to restrain or invalidate the
exchange, or which, if adversely decided, could adversely affect
Vision or the Company;
(5) The Company shall have received the certificate of the
president of Vision, dated the Closing Date, in form and substance
satisfactory to the Company, with respect to the following
matters:
(a) Vision is a corporation duly organized, validly existing
and in good standing under the laws of the state of Delaware
and it has all requisite corporate power and authority to
carry on the business now conducted (if any be so conducted)
and to own and operate its respective properties (if any)
and to enter into this Agreement, and consummate the
transactions herein contemplated; Vision is not required to
be qualified to conduct business in any other jurisdiction;
(b) The authorized capital stock of the Company is as stated
in Paragraph 5.2 hereof. All of the issued shares are duly
authorized, validly issued, fully paid and nonassessable
shares of Vision's common stock. There are no outstanding
subscriptions, options, warrants, calls, commitments,
agreements or convertible securities to which Vision is a
party or by which it is bound, calling for or requiring the
issuance of common stock of Vision except as otherwise
specifically authorized by this Agreement. Vision is not
bound by any other agreements relating to its capital stock
(including registration rights agreements); to the best of
such president's knowledge, there are no voting or other
agreements among Vision's shareholders relating to its
capital stock;
(c) All necessary corporate proceedings, including
appropriate action by the shareholders and directors of
Vision, to approve this Agreement and the execution,
delivery and performance thereof and all other proceedings
required by law or by the provisions of this Agreement have
been taken, and Vision has the full right, power and
authority to enter into this Agreement and to carry out the
terms thereof without further action. This Agreement has
been duly authorized, executed and delivered by Vision and
constitutes a valid and legally binding obligation of Vision
enforceable in accordance with its terms. No consent,
approval, authorization or order of, or registration,
qualification, designation, declaration or filing with, any
governmental authority is required on the part of Vision in
connection with the execution and delivery of this
Agreement, or the carrying out of any of the transactions
contemplated hereby;
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(d) To the best knowledge of such president, except as
herein indicated, there are no suits, actions, claims or
proceedings pending or threatened against Vision, nor to the
knowledge of such president is Vision a party to or subject
to any order, judgment, decree, agreement, stipulation or
consent of or with any court or administrative agency, nor,
to the best knowledge of such president, is any
investigation pending or threatened against Vision;
(e) To the effect of Sections 5.3, 5.12, 5.13 and 5.17 of
this Agreement.
(6) The Company shall have received the tax returns, corporate
minute book and all other corporate, business and financial
records of Vision;
7. Indemnification.
7.1 In order to induce the Vision to enter into this Agreement, and for
other good and valuable consideration, receipt whereof is acknowledged, the
Company agrees to indemnify Vision, the Shareholders of Vision, and their
successors and assigns, and to hold them harmless in respect of (i) all
liabilities of the Company of any nature, whether accrued, contingent, absolute
or otherwise, as of the Closing Date, which are not disclosed or provided for in
the financial statements delivered to Vision as herein provided; (ii) any damage
or deficiency arising from any misrepresentation or breach of warranty made by
the Company herein; and (iii) all actions, suits, proceedings, demands,
assessments, fines, judgments, costs, expenses, or reasonable attorney's fees
incident to the foregoing;
7.2 In order to induce the Company to enter into this Agreement, and for
other good and valuable consideration, receipt whereof is acknowledged, Vision
and the Shareholders agree to indemnify the Company, its successors and assigns,
and their respective officers, directors, employees, controlling persons and
agents, and to hold each of them harmless in respect of (i) all liabilities of
Vision of any nature, whether accrued, contingent, absolute or otherwise, as of
the Closing Date, which are not disclosed or provided for in the financial
statements delivered to the Company as herein provided; (ii) any damage or
deficiency arising from any misrepresentation or breach of warranty or agreement
made by Vision herein; and (iii) all actions, suits, proceedings, demands,
assessments, fines, judgments, costs, expenses, or reasonable attorney's fees
(whether related to claims between the parties, involving third parties or
otherwise), as they are incurred, incident to the foregoing.
8. Closing.
8.1 The closing of the transactions described in this Agreement (the
"Closing Date"), shall take place within 24 hours after compliance with all
conditions precedent to such Closing Date as set forth in Paragraph 7 of this
Agreement, or as may be otherwise agreed to by the parties, and shall take place
at such place and time as the parties may agree.
8.2 Each party will comply with their respective requirements at the
Closing and will deliver appropriate documents as called for by this Agreement.
9. Termination. This Agreement may be terminated and abandoned at any time
prior to the Closing Date upon the following conditions:
9.1 By the mutual consent of the Boards of Directors of the Company and
Vision;
9.2 By the Board of Directors of either the Company or Vision if, in the
bona fide judgment of such Board, there shall have been a violation of any
covenant or agreement set forth herein; or
24
<PAGE>
if any warranty or representation shall be untrue; or such Board of Directors
should, in its bona fide judgment, deem the acquisition inadvisable or
impractical by reason of any defect which, in the opinion of counsel for the
company whose Board of Directors has made such a determination, constitutes a
part of its assets or there exists or there is a threat of a liability or
obligation of such other company not previously known at the time of this
Agreement.
10. Effect of Termination. In the event of the termination and abandonment
of the acquisition and this Agreement as herein provided, notice shall be given
to the company or person to be notified of the termination or abandonment as
herein provided, and thereupon this Agreement shall become wholly void and of no
effect, and there shall be no liability on the part of any person who is a party
hereto, or any liability for the Board of Directors, stockholders, officers or
directors of either the Company or Vision or any other party to this Agreement.
11. Nature and Survival of Representations. All representations, warranties
and covenants made by a party to this Agreement shall survive the execution of
this Agreement and the consu mmation of the transactions contemplated hereby.
All of the parties hereto are executing and carrying out the provisions of this
Agreement, and relying solely upon the representations, warranties and covenants
contained in this Agreement and not upon any investigation upon which it might
have made, or any representation, warranties, agreements, promises or
information, written or oral, made by the other party, or by persons other than
as specifically set forth herein.
12. Investment Representations of Shareholders. The Shareholders warrant,
represent and agree with respect to the Acquiror Shares to be received in
exchange for the Acquiree Shares pursuant to this Agreement:
12.1 That such shares are being acquired for the purpose of investment, for
the separate account of each Shareholder, and not with a view to distribution or
resale or any present intention to divide their participation with others;
12.2 The Shareholders have been informed that the Acquiror Shares to be
received by them are not being registered under the Act in reliance upon the
exemption provided by Section 4(2) of the Act as a transaction not involving any
public offering and/or Regulation D adopted under said Act and that reliance
upon such exemptions is predicated in part on the representations made in
Paragraph 12.1 above;
12.3 The Shareholders acknowledge that they are aware of the fact that the
shares being acquired by them will be highly speculative and may only be sold or
disposed of under the restric tions imposed under the Act and the Securities
Exchange Act of 1934, as amended, except pursuant to an exemption from the
registration requirements of the Act;
12.4 The Shareholders consent to the imposition of a legend on the
certificate or certificates of stock to be acquired by them to the effect that
such securities have not been registered under the Act and such securities may
not be sold, pledged or hypothecated, except in compliance with said Act, or
upon an appropriate opinion of counsel acceptable to the Company to the effect
that an exemption from the registration provisions of said Act is available to
the selling shareholder. The Shareholders further consent to the imposition of
"stop transfer" instructions with respect to their respective accounts as
recorded by the transfer agent of the Company, to the effect that such shares
may not be sold or disposed of without evidence of compliance with the
requirements of said Act, or upon an acceptable opinion of counsel.
13. Miscellaneous.
25
<PAGE>
13.1 Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
13.2 Entire Agreement. This Agreement constitutes the entire Agreement
among the parties pertaining to the subject matter hereof, and supersedes all
prior and contemporaneous agreements and understandings of the parties in
connection herewith. There are no oral promises, conditions, representations,
understandings, interpretations or terms of any kind as conditions or
inducements to the execution of this Agreement.
13.3 Successors. This Agreement shall be binding upon the parties hereto,
and inure to the benefit of the parties, and their respective successors in
interest and assigns.
13.4 Further Assurances. At any time and from time to time after the date
hereof, each party will execute such additional instruments and take such action
as may be reasonably requested by the other party to confirm or perfect title to
any property transferred hereunder or otherwise to carry out the intent and
purposes of this Agreement.
13.5 Waiver. Any failure on the part of any party hereto to comply with any
of the obligations, agreements or conditions hereunder may be waived in writing
by the party to whom such compliance is owed.
13.6 Notices. All notices and communications hereunder shall be made in
writing and shall be deemed to have been given if delivered in person or sent by
prepaid, first class, registered or certified mail, return receipt requested to
each party hereto at the address set forth herein.
13.7 Severability. The parties to this Agreement hereby agree and affirm
that none of the above provisions is dependent upon the validity or of any other
provisions, and if any part of this Agreement is deemed to be unenforceable, the
balance of the Agreement shall remain in full force and effect.
13.8 Finder's Fees. The parties hereto acknowledge that there have been no
brokers, finders or other parties whomsoever, except as referred to in this
Agreement, which would be entitled to receive a fee in connection with this
transaction.
13.9 Headings. The section and subsection headings in this Agreement are
inserted for convenience only, and shall not affect in any way the meaning or
interpretation of this Agreement.
13.10 Governing Law. This Agreement shall be governed by the laws of the
State of Nevada.
13.11 Amendment. This Agreement or any provision hereof, may not be
changed, waived, terminated or discharged except by means of a written
supplemental instrument signed by the party or parties against whom enforcement
of the change, waiver, termination or discharge is sought.
26
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement on the above
written date.
ATTEST: FLAMINGO CAPITAL, INC.
/s/_____________________ By: /s/
Its: President
ATTEST: VISIONCORP, INC.
/s/_____________________ By: /s/
Its: President
SHAREHOLDERS OF VISIONCORP, INC.:
- ------------------------------- ---------------------------
- ------------------------------- ---------------------------
- ------------------------------- ---------------------------
- ------------------------------- ---------------------------
- ------------------------------- ---------------------------
27
<PAGE>
SCHEDULE A
Statement of All Litigation Involving the Acquiree and/or Shareholders
---------------------------------------------------
NONE
(7) The Company shall have received satisfactory evidence that
VISION has effected the amendment to its Certificate of Incorporation as set
forth in Paragraph 5.2 hereof and, in addition, will have approved such other
changes as are consistent with this Agreement and approved by the Company for
submission to Select's shareholders.
28
<PAGE>
EXHIBIT 10(b)
29
<PAGE>
Dated theday of 1997
BETWEEN
GREATLANDS INVESTMENTS (AUSTRALIA) LIMITED
ACN 003 641 843
AND
GEOPHYSICAL TECHNOLOGY LIMITED
ACN 072 470 243
AND
JOHN MILLWOOD STANLEY & ROSELLI GONZALO STANLEY
AND
MALCOLM KEITH CATTACH & FONGUE LANGUE CATTACH
AND
UNIQUEST LIMITED ACN 010 529 898
AND
AGRI-BREEDERS MANAGEMENT SERVICES PTY LIMITED
ACN 003 862 333
SHARE ALLOTMENT AGREEMENT
30
<PAGE>
NICOL ROBINSON KIDD
Solicitors
Level 3
Hong Kong Bank Building
300 Queen Street
BRISBANE QLD 4000
Ph: 3853 8888
Fax: 3853 8800
THIS AGREEMENT made this day of 1997
BETWEEN : GREATLANDS INVESTMENTS (AUSTRALIA) LIMITED ACN 003 641 843 of 132
Alice Street Brisbane in the State of Queensland, (called "GIL").
AND: GEOPHYSICAL TECHNOLOGY LIMITED ACN 072 470 243 of level 3 9 Barrack
Street Sydney in the state, of New South Wales (called "GTL").
AND: JOHN MILLWOOD STANLEY and ROSELO GONZALO STANLEY both of Lot 19 Row
lands Roads, Armidale in the State of New South Wales.
AND: MALCOM KEITH CATTACH and FONGUE LANGUE CATTACH both of 11 Watson
Avenue, Armidale in the State of New South Wales.
AND: UNIQUEST LIMITED ACN 010 529 898 of Research Road, The University of
Queensland, St. Lucia in the State of Queensland.
AND: AGRI-BREEDERS MANAGEMENT SERVICES PTY LIMITED CAN 003 862 333 of Level
3, 9 Barrack Street, Sydney in the State of New South Wales.
WHEREAS
A. GTL is a research and development company which asserts that it has
the ownership or control to sub surface mapping and detection
technologies.
B. GTL requires capital and expertise to develop the intellectual
property commercially.
C. GIL has the capital and expertise to enable GTL to fully exploit the
intellectual property.
D. GTL is the owner of intellectual property set out in Schedule 1 ("the
Core IP")
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<PAGE>
E. GTL intends to enter into an Agreement with the University of New
England ("UNE Agreement") in the form substantially set out in
Schedule 2
F. The issued shares in GTL are:
Shareholder
Number of Fully
Paid Ordinary $1.00 shares
JM & RG Stanley as Trustees of Stanley Family Trust 700
MK & FL Cattach as Trustees of Cattach Family Trust 590
UniQuest Limited 428
Agri-Breeders Management Services Pty Limited 300
PJ & JL Clark as Trustees of Clark Family Trust 80
JM & RA Reid 30
TOTAL 2128
G. GIL is willing to contribute its capital and expertise to GTL for
an allotment of shares in GTL and otherwise on the terms and
conditions as follows:
NOW THIS AGREEMENT WITNESSETH AS FOLLOWS:
1. Within 7 days of the date of this Agreement, GIL must pay into the
Trust account of Nicol Robinson & Kidd the sum of $150,000.00.
2. Upon:
2.1 GIL being satisfied that GTL is the owner (subject to a
fixed and floating charge to UniQuest Limited) of the Core IP
and notifying GTL that fact;
or
2.2 GTL entering into the UNE Agreement substantially in the
form set out in Schedule 2,
GTL shall convene a general meeting of its shareholders to consider the
shareholders waiving the benefit of the right of pre-emption in Article
14(3) of GTL's Article of Association, in relation to any allotments of
shares to GIL made pursuant to clause 12 and to direct the board to
allot shares in accordance with clause 12 and 13.
3. GTL may convene the general meeting referred to in clause 2 earlier
that either of the events referred to in clause 2.
4. Within one business day of the later of:
4.1 GIL making a notification to GTL pursuant to clause 2.1, or
alternatively, GTL producing to GIL a copy of the UNE Agreement
executed by UNE;
and
4.2 GTL providing to GIL a copy of its minutes of a general
meeting passing a resolution by shareholders waiving the
benefit of the rights of pre-emption in Article 114(3) of
GTL's Articles of Associates, in relation to any allotments of
shares to GIL, pursuant to clauses 12 and 13.
Nicol Robinson & Kidd, on behalf of GIL, shall pay to GTL the sum of
$150,000.00 deposited in their Trust account pursuant to clause 1 for
one fully paid up share in the capital of GTL paid to the extent of:
5.1 par value $1.00
5.2 premium per share $149,999.00
which shall be share numbered 2129.
5. There is no clause 5.
6. GIL warrants to GTL that it has provided irrevocable instructions to
Nicol Robinson & Kidd to pay to GTL the sum of $150,000.00 in
accordance with clause 4.
7. GTL shall issue to GIL one fully paid up ordinary share in its capital
upon receipt of the amount referred to in clause 4.
8. If:
8.1 neither of the events referred to in clause 4 shall occur; or
8.2 the event referred to in clause 4.2 shall not occur
within 60 days of the date of this Agreement, this Agreement shall be
at an end, and neither party shall have any further obligation to the
other.
9. Within the period of two calendar months from that date which is the
later of any of the events referred to in clause 2
32
<PAGE>
GIL may elect to apply for shares in the capital of GTL in accordance
with clauses 12 and 13 ("the election date").
10. The manner of GIL's election pursuant to clause 9 shall be GIL
providing to GTL each of the following;
10.1 a written notice notifying GTL of GIL's election;
10.2 a cheque for $31.91 referred to in clause 13; and
10.3 a cheque for the first payment pursuant to clause 14.
11. If GIL fails to make an election pursuant to clauses 9 and 10 in the
manner referred to in clause 10, this Agreement shall be at end, and
neither party shall have any further obligation to the other.
12. Subject to GIL making an election pursuant to clause 9 GIL applies for
3191 ordinary shares having a par value of $1.00 each in the
authorised capital of GTL, for:
12.1 partly paid amount per share $0.01
12.2 unpaid amount per share $0.99
12.3 premium per share $625.76
13. Upon receipt of GIL's election pursuant to clauses 9 and 10 and a
cheque for $31.91 being an amount of $0.01 party paid for each of 3191
ordinary shares of $1.00 each, GTL shall convene a meeting of its
Board of Directors and procure that the following resolutions are
passed:
13.1 that 3191 ordinary shares of $1.00 each partly paid to $0.01 each
be issued to GIL, numbered from 2130 to 5320; all shares issued
(either partly or fully paid) will carry full voting rights.
13.2 That share certificates for those shares be issued.
14. On or before the first day of each subsequent calendar month GIL shall
pay to GTL an amount of at least $50,000.00.
15. On or before 30 June 1998, GIL must pay to GTL an amount which brings
all its payments pursuant to clause 14 to a total amount of
$1,999,991.16.
16. Each amount referred to in clause 14, whether of $50,000.00 or a great
amount, shall be progressively applied by GTL in payment of the whole
of the uncalled amount and the whole of the premium in relation to
each consecutively numbered share, commencing in respect to share
numbered 2130, to the intent and propose that no amount paid by GIL
shall be applied towards any part of any share's unpaid amount, or
part of any share's premium, unless in respect to that share, all
shares of a lower number have had paid in full the unpaid amount per
share of $0.99, and have had paid in full the unpaid premium per share
of $625.76.
17. If:
17.1 GIL fails to comply with clause 14 and that failure continues for
30 days after GTL gives GIL written notice requiring payment
pursuant to that Clause; or
17.2 GIL fails to comply with clause 15. GTL may immediately, by
written notice in writing to GIL, terminate this Agreement.
18. Upon termination of this Agreement pursuant to clause 17, the shares
of GIL that are partly paid shall be forfeited, and shall immediately
be cancelled pursuant to Article 143 of GTL's Articles of Association.
19. Upon the termination of this Agreement pursuant to clause 17.
19.1 GIL shall be entitled to appoint one director to the board for
each 904 fully paid shares it holds fully paid both as to
subscription and as to premium.
19.2 the Chairman of the Board of GTL shall resign that office; and
19.3 the directors appointed by GIL pursuant to clause 27.2.1 shall
resign their offices other than a director or directors entitled
to a seat on the board pursuant to clause 19.1
19.4 the secretary and public officer appointed by GIL pursuant to
clause 27.2.2 shall resign their offices; and
19.5 GIL shall procure that its nominees for the operation of all
GTL's banking accounts shall sign all such documents as are
required to relinquish those banking authorities.
20. GTL must not undertake, resolve, do anything towards or preparatory to
any of the following without the prior written consent of each
shareholder which holds at least 5% of the issued capital of GTL:
20.1 the grant by the Company of any security over any of its fixed or
floating property, whether by way of mortgage, charge, lien,
pledge, hypothecation, bill of sale, title retention arrangement
or trust in the nature of an encumbrance, or otherwise;
20.2 the borrowing of any money, obtaining any advance, credit or
financial accommodation exceeding $20,000.00;
20.3 the lending of any money to any person;
20.4 the providing of any guarantee or indemnity to any person;
20.5 any amendment to the Company's Memorandum of Association;
20.6 any amendment to the Company's Articles of Association;
20.7 any sale of any asset of the company,
20.8 the Company changing its business, or commencing any new
business;
20.9 any proposal which will or may have the effect of altering any of
the respective rights and liabilities of shareholders as between
each other; and
20.10 any change of name of the company;
20.11 the winding up of the Company; and
20.12any matter which pursuant to the Corporations Law requires a
special resolution
20.13 the acquisition of any business by the Company;
20.14the acquisition by the Company of any asset other than in the
normal course of the Company's business;
20.15the entering into or variation or dissolution by the Company of
any partnership or joint venture;
20.16the formation or winding up of any subsidiary company
20.17the license or assignment of any patent, copyright work or other
intellectual property owned by or available to the Company
33
<PAGE>
20.18the entering into of any contract having a value, commitment of
benefit exceeding $20,000.00
20.19the entering into or variation of any transaction with a
shareholder, or a person that is a related corporation (as
defined in section 50 of the Corporations Law) to a shareholder.
20.20Payment of fees to GIL or any related body corporate within the
meaning of Section 50 of the Corporations Law.
20.21 Any declaration of a dividend.
20.22The allotment of any shares in the capital of GTL otherwise than
contemplated by this agreement.
21. For the avoidance of any doubt, the parties record their agreement
that clause 20 ceases to apply in the event that this Agreement:
21.1 Is at an end pursuant to clause 8 or clause 11; or
21.2 Is terminated pursuant to clause 17.
22. Clause 20.20 shall not apply in relation to any transaction permitted
by clause 43.
23. No party may transfer any of that party's shares in GTL to any person
unless:
23.1 That party first offers, the shares sought to be transferred, in
writing, to the remaining parties to this Agreement, in
proportion to the shares already held respectively by those
parties, upon the same terms as those shares are sought to be
transferred; and
23.2 That offer should not be accepted within 7 days of the date the
offer was made.
24. Clause 23 shall not apply to a proposed transfer by GIL, Agri-Breeders
or UniQuest to a related party.
25. In addition to the initial capital contribution GIL agrees to raise
further investment capital on behalf of GTL (called "further capital")
in the sum of THREE MILLION DOLLARS ($3,000,000.00) to be raised and
paid to GTL by 30 June 2001 PROVIDED THAT such capital will only be
raised if the subscription price for the shares allotted shall be a
minimum subscription of:
25.1 Par $1.00
25.2 Premium $1,251.52
26. In consideration for raising the further capital in accordance with
clause 25 and in consideration of the payment of ONE MILLION DOLLARS
($1,000,000.00) GIL shall be entitled to a further allotment of shares
with a minimum subscription of:
26.1 Par $1.00
26.2 Premium $625.76
27. On the election date and in exchange for notice of election to proceed
with the agreement GTL shall provide the following documents and
attend to the following matters and events.
27.1 The Share Certificates in relation to the shares;
27.2 GIL shall convene a meeting of the Board of Directors of GTL to
be held on the election date and at such meeting the Directors
shall cause resolutions to give effect to the following matters
to be passed at such meetings.
27.2.1 The Board shall consist of six (6) Directors, three (3)
Representatives of the shareholders of GIL and that Martin
Gregory Wotton shall be chairman of the Board. The
appointment of such persons as directors and the
resignations of such persons as directors to give effect to
this resolution.
27.2.2 The appointment of Gerard Arthur O'Connell to be the
Secretary and Public Office of GTL;
27.2.3 To accept the registration of Andrew Stephen Cohen as the
Secretary of GTL;
27.2.4 There shall be two GTL bank accounts, one being an imprest
account containing funds from time to time required by the
business plan to be operated by a minimum of two 92) persons
the board may from time to time authorise. The other account
will be controlled by Martin Gregory Wotton and Gerard
Arthur O'Connell jointly.
27.2.5 To nominate Martin Gregory Wotton the Chairman of the
Board.
27.2.6 To issue the shares to GIL and direct the secretary to
deliver the Share Certificates.
27.2.7 To provide an executed Deed of Restraint from John
Millwood Stanley and Malcolm Keith Cattach and Peter James
Clark restraining them from working for any competitor to
GTL for a period of twelve (12) months following the
termination of their employment howeverso arising.
27.2.8 Minutes of the meeting referred to in clause 27 signed by
the Chairman of the meeting.
28. It is a condition of this agreement there shall be 6 Directors on the
Board of Directors, 3 Representing the shareholders other than GIL and
3 Directors representing GIL and Martin Wotton shall be appointed
Chairman of the Board.
29. The parties agree that the loan accounts of John Millwood Stanley and
Roselli Gonzalo Stanley and Malcolm Keith Cattach and Fongue Langue
Cattach shall be paid immediately upon receipt of sufficient funds
from the initial capital and that the loan from UniQuest and debts
owing to UniQuest will be paid on or before the 30th June 1998.
30. Within one months of the election date GTL shall relocate its
registered office and Corporate and Marketing Headquarters to the
offices of GIL in Brisbane PROVIDED THAT General Operations Section of
the company shall remain in Armidale.
31. GTL warrants the correctness of the Warranties hereinafter set out
both at the date hereof and as at the election date:
31.1 GTL is a Company duly incorporated;
31.2 That the Financial Statements of GTL Forming Schedule 3 exhibit
correctly the financial position of GTL as at the date referred
to in the Financial Statements and that GTL has neither declared
any dividends nor issued any shares since the preparation of the
said Financial Statements nor will it do so prior to the election
date.
31.3 That the assets of GTL are actually owned by and are in the
possession of GTL and are not at the date hereof mortgaged,
charged or encumbered in any way other than as evidenced by the
documents forming Schedule
34
<PAGE>
4 including but not limited to the charge in favour of UniQuest
Limited and that there is no contract, agreement or
acknowledgment whereby GTL is or might become obliged to give any
mortgage, charge, lien or encumbrance over any of its assets;
31.4 That GTL is not the Lessee of any real estate for any fixed term
or period;
31.5 GTL is not engaged in any litigation or threatened litigation of
any kind and GTL is not aware of any matter or thing which could
give rise to any litigation other than a possible claim by NAICL
in accordance with the documents forming Schedule 5.
31.6 No options have or will be granted to any person or contracts
made to purchase any of the assets of the GTL;
31.7 No options have been or will be granted or any contracts made
with any person to purchase any shares;
31.8 Subject to the terms of this agreement GTL is not obliged to
issue or cause to be issued any further shares whether at par,
for a premium or at a discount.
31.9 There are no dividends declared and unpaid in relation to any off
the issued shares in the capital of GTL;
31.10GTL has not made any default under the terms of any securities
and GTL is not aware of any fact or circumstance which might lead
to any default being made by GTL under the terms of any security
or charge;
31.11Each of the Insurance Policies taken out by GTL validly subsists
and will validly subsist as at the election date and all premium
due for payment have been paid and will be paid to the election
date and no default has been made by GTL under any such policy
and neither will any such default be made prior to the election
date and GTL is not aware of any fact or circumstance which might
render the said insurance policies or any of them void, voidable
or unenforceable.
31.12The Financial Statements, Balance Sheet, Profit and Loss
Statements annexed hereto and each of them have been drawn up in
accordance with the provisions of the Corporations Law and proper
accountancy practice and that without limiting the generality of
the foregoing proper and adequate provision has been made in this
account for all liability whether present, future or contingent
and all other commitments and obligation of GTL so as to give a
true and correct view of the state of affairs of GTL as at the
relevant date of the Statements;
31.13The books and register required to be kept by GTL by Law and
books of account and records of GTL written up in a proper
manner;
31.14That all returns, particulars, resolutions and other documents
of whatever description required to be filed or delivered on
behalf of GTL under any relevant Law or Statute have been and
will to the election date continue to be correctly and properly
made up and filed, lodged or delivered within the appropriate
periods prescribed under the said Law or Statute;
31.15That all Income Tax payable by GTL up to and including the
financial year ending the 30th day of June 1997 has been paid in
full or has been specifically provided for in the said financial
accounts annexed hereto;
31.16At the election date GTL will not indebted either absolutely or
contingently to any person, firm or corporation or Government or
Semi-Government authority in any sum of sums of money or which
has not been disclosed in the said financial accounts annexed
hereto or otherwise disclosed to GTL except debts which maybe
incurred by GTL between the date hereof and the election date in
relation to the purchase of stock and materials in the normal
course of business;
31.17No petitions for the winding-up of GTL have been presented or
will be presented to the election date and no orders have been
made or effective resolutions passed for the winding-up of GTL
nor will they be to the election date and no proceeding have been
instituted or any Meeting or Meetings called with a view to
obtaining any such Order or Orders or to pass any such resolution
or resolutions or will be so instituted or called to the election
date;
31.18No Receiver of the undertaking or assets of GTL or any part
thereof have been appointed or will be so appointed at the
election date;
31.19 No person has nor
will at the election date have any option or right to acquire
any of the unissued shares in GTL;
31.20No person has or will have at the election date any charge or
other security over the unissued shares of GTL otherwise than as
disclosed in this agreement;
31.21No proper and just demands or requirements of any Local, Health,
Rating, Building or other duly constituted Authority of whatever
description in relation to GTL's business or any premises owned
or occupied by GTL remain to be complied with now nor will they
at the election date;
31.22GTL has made full disclosure to GTL of all information that GTL
has requested;
31.23That all debts due to GTL as set out in the Financial Statements
are at the date hereof good and recoverable except those debts in
respect of which it is indicated on such annexure may be doubtful
or irrecoverable as the case may be;
31.24GTL will continue to trade normally between the date of
execution hereof and the election date;
31.25That except for the details shown in the Financial Statements no
monies are owing by GTL to any employee or past employee or any
servant or agent in any capacity whatsoever by way of wages,
contract payments, holiday pay, sick pay, long service leave or
on any other account whatsoever and that there is no existing or
outstanding dispute by GTL with any previous or past employee in
relation to the employment of that person by GTL or any monies
due or claimed to be due by GTL to that person nor is there any
outstanding dispute of any nature whatsoever between GTL and any
other Industrial Union or Organisation and GTL further warrants
that all monies (if any) referred to in this subclause have been
specifically provided for in the said financial accounts;
31.26The only monies due to any Shareholder or Director of GTL as at
the date of the execution of this Agreement whether by way of
loan or otherwise are as set out in the Financial Statement and
all such monies have been
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specifically provided for in the said financial accounts;
31.27Subject to the disclosures made in Schedule 5 in relation to a
claim by NAICL the only creditors of GTL at the date of execution
of this Agreement including secured creditors are as set out in
the Financial Statements and all amounts shown in the Financial
Statements have been specifically provided for in the said
financial accounts.
31.28That there are no guarantees, material undertakings, material
commitments on capital account or unusual or contingent
liabilities which have been made, given or entered into or
incurred by or on behalf of GTL;
31.29All the accounts, books, ledgers and financial and other
material records of whatsoever kind of GTL will be fully,
properly and accurately kept and completed up to the election
date and that there are no material and will be no material
inaccuracies or discrepancies of any kind contained or reflected
therein and further that such accounts, books, ledgers, financial
and other material records give and reflect a true and fair view
of the financial trading position of GTL;
31.30That GTL is not party to any Contact or arrangement which may be
determined by the other party to that Contract by reason of the
change in the ownership of the shares in GTL or the control of
GTL;
31.31That GTL is not the lessee of any property and except as may be
granted pursuant to the agreement set out in Schedule 2.
31.32GTL has not entered into any service or other agreement with any
officer or employee of GTL other than standard employment
contracts.
31.33That there is no Loan Contract binding on GTL to which GTL or
Directors or any associated Company is a party other than the
loan agreements as disclosed herein.
32. Notwithstanding the allotment of shares in favour of GIL and
notwithstanding the rights of GIL and notwithstanding any other
provision of this agreement any general or special condition or any
part or parts thereof to which effect is not given by the allotment
and capable of taking effect at a later time shall remain in full
force and effect and in particular and without limiting the generality
or anything herein before contained the rights and obligations of the
parties hereto in respect to the convenants, warranties and
representation herein contained shall not be merged or extinguished.
33. Time shall in all cases and in every respect be deemed to be of
the essence of this Agreement.
34. Each party hereto shall pay its own legal costs of and incidental to
the preparation, execution and stamping of this Agreement and to any
other document or matter incidental hereto.
35. Any notice required to be given by GTL to GIL shall be given in
writing to GIL at its address herein and any notice required to be
given to GTL by GIL shall be given in writing to at its address
herein.
36. This Agreement shall be governed and construed in accordance with the
Laws for the time being of the State of Queensland and the parties
agree that the appropriate Court in the State of Queensland will have
jurisdiction to hear and determine any dispute between the parties in
relation to or arising out of this Agreement.
37. If by virtue of any provision in this Agreement whether expressed or
implied any transaction or part thereof evidenced or contemplated by
this Agreement or any act, matter or thing done or omitted to be done
by any party hereto would at the date hereof or any time hereafter is
or becomes illegal, void or unenforceable under any Law of Australia
or any of its State or Territories or any regulation made thereunder
whether known to the parties or not to the date of this Agreement this
Agreement shall be construed in all respects as if such provision as
aforesaid was not and had never been included herein.
38. The parties hereto shall take all steps and do all such acts and
executive all such necessary document within their power as may be
reasonably required by the other parties to give effect to the terms
of this Agreement.
39. GTL covenants with GIL that will not agree, without the consent of GIL
in writing, to increase the salary of any director employee or servant
or contractor to GTL prior to the election date or enter into any
Agreement with any such person whereby such persons salary, wage or
remuneration would be increased after the election date.
40. GTL warrants that the plant, machinery and equipment referred to in
the Financial Statement is the whole of the plant and equipment owned
by GTL in and about its business and that all of such plant and
equipment is owned by GTL and is not subject to any hiring, leasing or
other arrangements.
41. GIL must not assign this Agreement without the prior written consent
of GTL
42. Clause 41 shall not apply to an assignment by GIL to a related
corporation (as defined in section 50 of the Corporations Law)
43. GTL discloses that the Financial Statements attached to this Agreement
do not reflect the following transactions:
43.1 An allotment of 108 fully paid shares by GTL to UniQuest for:
43.1.1 par $1.00
43.1.2 premium $2571.11
43.2 the release of UniQuest in favour of GTL of an unsecured debt to
the extent of $277,680.00
43.3 an allotment of 20 fully paid shares up shares by GTL to UniQuest
for:
43.3.1 par $1.00
43.3.2 premium $2749.00
44. All warranties made in this Agreement relating to the Financial
Statements are subject to the matters referred to in clause 43.
45. For the purposes of clause 24, "Related Party" means
45.1 in relation to a shareholder that is a body corporate, a related
body corporate within the meaning of Section 50 of the
Corporations Law.
45.2 in relation to a shareholder that is a natural person; a company
in which a shareholder (whether acting as a trustee or otherwise)
owns at least 50% of the issued capital
45.3 in relation to any shareholder another shareholder. . Clause 23
shall no apply in relation to any transfer of shares that takes
place pursuant to an option to buy shares made
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to day between GIL and UniQuest Ltd.
IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals on
the days of the month and the year hereinafter set out.
THE COMMON SEAL of )
GREATLANDS INVESTMENTS )
(AUSTRALIA) LIMITED (ACN 003 641 ) Director
843) was hereunto affixed by authority of a )
Resolution of the Board of Directors in the )
Presence of MARTIN GREGORY )
WOTTON a Director and GERARD )
ARTHUR O"CONNELL a Director ) Director
THE COMMON SEAL of )
GEOPHYSICAL TECHNOLOGY )
LIMITED (CAN 072 470 243) was hereunto )
Affixed by authority of a Resolution of the ) Director
Board of Directors in the presence of )
)
a Director and )
)
a Director ) Director
SIGNED by the said JOHN MILLWOOD )
STANLEY. )
)
SIGNED by the said ROSELLI )
GONZALO STANLEY )
)
SIGNED by the said MALCOLM KEITH )
CATTACH. )
)
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SIGNED by the said FONGUE LANGUE )
CATTACH. )
)
UNIQUEST LIMITED (ACN 010 529 898) )
by its Managing Director DAVID )
ALEXANDER EVANS who warrants that he )
is authorised to execute this agreement on )
behalf of the Company. )
)
THE COMMON SEAL of )
AGRI-BREEDERS MANAGEMENT )
SERVICES PTY LIMITED (ACN 003 862 )
333) was hereunto affixed by authority of a ) Director
Resolution of the Board of Directors in the )
Presence of )
)
a Director and )
)
a Secretary ) Secretary
38
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EXHIBIT 10(c)
39
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RESEARCH FUNDING AGREEMENT
UNIQUEST LIMITED
and
GREATLANDS INVESTMENTS (AUSTRALIA) LIMITED
Philip Mendes
Technology Law
BRISBANE
PO Box 25
St. Lucia QLD 4067
Tel: (07) 3365 3866
Fax: (07) 3365 4433
Email: [email protected]
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137C 09 17 06
THIS AGREEMENT is made on the day of
One thousand none hundred and ninety seven
BETWEEN UNIQUEST LIMITED ACN 010 529 898 of Research Road, The University of
Queensland, St. Lucia, in the State of Queensland.
(in this Agreement called "UniQuest"),
AND GREATLANDS INVESTMENTS (AUSTRALIA) LIMITED ACN 003 641 843 of 132 Alice St.
Brisbane, in the State of Queensland
("Greatlands")
RECITALS:
UU. UniQuest is technology transfer and commercialism company for the
University of Queensland.
VV. UniQuest made a proposal to Greatlands a copy which is annexed and
marked "A".
WW. The parties desire to undertake certain research and to make provision
for the funding of that research.
THIS AGREEMENT PROVIDES:
INTERPRETATION
0.1 In this Agreement:
affiliate in relation to Greatland includes:
(a) an officer within the meaning of the Corporations Law;
(b) a shareholder;
(c) a partner or joint venturer;
(d) a related company of subsidiary within the meaning of the
Corporations Law incorporated or registered anywhere in the
world;
(e) any body corporate, incorporated or registered anywhere in
the world that is in any way related to, a subsidiary of,
associated with, or any number of whose shares, are owned,
whether legally or beneficially to any degree, by, or which
are subject to control or influence to any degree, by the
party;
(f) any of the abovenamed in relation to a licensee of a party;
and
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(g) a person licensed by Greatlands;
in any such case, whether presently existing or coming into
existence at any future date;
commercialise in respect to the intellectual property means to
manufacture, make, advertise, promote and use the products
derived from the intellectual property, but does not include the
sale
or disposal by any means of any physical product that is partly
of wholly material encompassed in
the definition of "Intellectual Property"
confidential information:
(a) means a fact, data, an opinion, a secret, an idea, a
process, a methodology, know how, a model, a formulation
communicated by one party to another and at the time of
communication identified as confidential information by the
disclosing party; and
(b) includes copies of the confidential information, whether
such copies are tangible copies, or stored by any electronic
or computer assisted modem, including disk, diskette, or
tape or stored in any other manner whatsoever;
disclosing party means a party to this Agreement which discloses
confidential information;
Existing Intellectual Property means the aqueous reaction processes,
and the material derived from those aqueous reaction processes referred
to in patent applications PCT/AU94/00323; PCT/AU95/00698 and
PCT/AU95/00699 and PCT/AU95/00320 and all corresponding patent
applications and patents granted together with trade secrets, know how,
techniques, ideas, processes, and formulae and all other knowledge
whatsoever which is required to enable the carrying out of the Research
Program;
Field means the use of the Intellectual Property in the application of
industrial waste water treatment, boiler water treatment., cooling
water treatment, and municipal water treatment, but excluding the Mine
Water Field and the other industrial water treatment;
improvement means all improvements to patents, manufacturing
processes, methodology, and know how in relation to a market product;
intellectual property means the Existing Intellectual Property and such
of the following as arise from the Research Program:
(a) an invention or discovery; manner, method or process of
manufacture; method or principle of construction chemical
composition or formulation; computer program; integrated
circuit, circuit layout or semiconductors chip layout or
design; plan, drawing or design or scientific, technical or
engineering information or document;
(b) improvement, modification or development of any of the
foregoing;
(c) patent, application for a patent, right to apply for a
patent or similar rights for or in respect of any
intellectual property referred to in sub-paragraphs (a) or
(b);
(d) trade secrets, know how, or right of secrecy or
confidentiality in respect of any information or document of
other intellectual property referred to in sub-paragraphs
(a)
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or (b);
(e) copyright or other rights in the nature of copyright
subsisting in any works or other subject matter referred to
in sub-paragraphs (a) or (b);
Management Committee means the Committee constituted by this Agreement;
Milestone means an event described as a Milestone in Schedule 3;
Mine Water Field means
(a) each of the following, together and separately in the mining
industry:
(i) remediation of acid mine tailings water ponds;
(ii) sterilisation of overburden, waste, or tailings dumps
carrying sulphides
(iii)remediation of effluent from mining and mineral
processing;
(iv) environmental cleanup in mine sites;
(v) treatment of mines tailings and residue, wherever
situate
but only if carried out:
(A) in relation to sites where mining operations have ceased;
(B) in relation to tailings, waste, tailings dumps and residue
that have accumulated before JV Co. is contracted to provide
its services; or
(C) in relation to tailings, waste, tailings dumps and residue
that accumulate after JV Co. is contracted to provide its
services, provided that in that case the maximum amount of
mineral extracted and sold using the Intellectual Property
pursuant to this paragraph (a) does not exceed 10% of the
total mineral extracted and sold at the applicable mine site
using all mineral extraction techniques;
and
(d) extraction of minerals from ore bodies and/or mine tailing
and residue not included in paragraph (a)
proposed publication means:
(a) a manuscript intended for publication; or
(b) a paper intended to be orally presented;
that related to any matter concerning the Research Program undertaken
by UniQuest;
public domain means the general store of knowledge that is known or
generally available and ascertainable by members of the community;
recipient party means a party to this agreement to whom confidential
information is disclosed;
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Research Program means the program of research described in Schedule 1;
University means the University of Queensland.
2.1 Headings in this Agreement are inserted for guidance only, and
shall not affect the meaning and interpretation of the remaining
provisions of this Agreement.
2.2 Words in Agreement importing the singular number or plural number
shall include the plural number and singular number respectively.
2.3 Words in this Agreement importing persons include all persons,
entities and associations, including companies, trusts, bodies
corporate, statutory bodies, partnerships, and joint venturers.
2.4 Where a word or phrase is given a particular meaning in this
Agreement, other parts of speech and grammatical forms of that word or
phrase have corresponding meanings.
2.5 Where a party to this Agreement is more than one person the
covenants and obligations on their part contained in this Agreement are
binding upon each of them jointly and severally.
2.6 A reference to any statute is a reference to that statute, as
amended and in force from time to time.
2.7 A reference to a party to this Agreement includes a reference to
any partner, joint venturer, related company or subsidiary of a party
to this Agreement, (whether presently existing or not) and each party
respectively, shall be liable to perform or to procure the performance
by any such partner, joint venturer related company or subsidiary to
any obligation upon it arising pursuant to this agreement.
2.8 If something comes within the meaning of "confidential information"
in this agreement and "intellectual property" in this agreement, and
there shall be any conflict in this agreement regarding its provisions
concerning intellectual property and confidential information, the
provisions concerning "intellectual property" shall prevail.
RESEARCH PROGRAM
1.1 The Research Program shall be administered and managed by the
Management Committee.
1.2 UniQuest shall carry out the Research Programs, and may
sub-contract some of the Research Program to the University or other
parties.
1.3 Each party must undertake in the Research Program such steps as are
required to carry out the Research Program efficiently and properly.
1.4 UniQuest must ensure that the Research Program is carried out:
(a) diligently and competently;
(b) expeditiously;
(c) by properly qualified persons;
(d) in accordance with accepted scientific and ethical
principles and standards and laboratory procedures;
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(e) in accordance with any applicable codes adopted by any
Australian research council;
(f) in accordance with any applicable research conventions; and
(g) in accordance with all applicable Acts, ordinances, rules,
regulations and by-laws.
7.1 The Research Program must not be varied by any party unless the
variation is the subject of a resolution of the Management Committee.
7.2 Upon the completion of the initial period of 12 months of the
Research Program, subject to UniQuest receiving the amounts referred to
in clause 5.1, UniQuest shall continue research the pursues the
objectives of the Research Program:
(a) in those areas notified by Greatlands to UniQuest; or
(b) in the absence of notification, in those areas determined by
UniQuest
until either UniQuest or Greatlands gives to the other 1 months notice
in writing ending that further research.
MILESTONES
2.1 UniQuest must use its best endeavors to achieve the Milestones upon
or before the respective dates for the achievement of those Milestones
set out in Schedule 3.
2.2 No Milestone may be varied by any party unless the variation is the
subject of a resolution of the Management Committee.
2.3 No date for the achievement of a Milestone may be varied by any
party unless the variation is the subject of a resolution of the
Management Committee.
RESEARCH FUNDS
3.1 Greatlands must pay to UniQuest the monies set out in Schedule 2,
by the installments set out in Schedule 2.
3.2 Greatlands must pay each installment set out in Schedule 2 upon or
before the respective due dates for payment set out in Schedule 2.
3.3 If Greatlands does not pay either or both of:
(a) the installment of the monies in Schedul2 2 due on 1 July
1997; and
(b) the amount referred to in clause 13.1:
then:
(c) UniQuest may not issue a notice under clause 29; and
(d) if the parties are unable to agree upon an extension of time
for those payment by 31, July
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<PAGE>
1997, either party may terminate this Agreement,
and in the event of such a termination, neither party shall have
any liability to the other.
4.4 A reference to Greatlands in clauses 4.1 to 4.3 does not include a
reference to an affiliate, nor to any other person referred to in clause
1.8.
EXTENSION OF RESEARCH
4.1 Upon the completion of the initial period of 12 months of the
Research Program, Greatlands shall pay to UniQuest further research
funds of $100,000.00 per month, until either UniQuest or Greatlands
gives to the other 1 month notice in writing pursuant to clause 2.6.
4.2 UniQuest shall issue invoices for the amount payable pursuant to
clause 5.1, and Greatlands shall make payment within seven days of the
date of those invoices.
CONSTITUTION AND FUNCTIONS OF MANAGEMENT COMMITTEE
5.1 There shall be a Management Committee.
5.2 The chairman of the Management Committee shall be a person elected
by the Management Committee from amongst its own number from time to
time.
5.3 The composition of the Management Committee shall be two persons
nominated in writing from time to time by each party respectively.
5.4 The Management Committee shall make all decisions with respect to
the Research Program including the matters referred to in clauses 2, 3,
and 4.
5.5 The parties by this Agreement irrevocably delegate to the
Management Committee all the authority of the parties to make decisions
with respect to the Research Program.
5.6 The parties agree to promptly and effectively carry out all
decisions made by the Management Committee.
PROCEEDINGS OF THE MANAGEMENT COMMITTEE
6.1 The Management Committee shall meet as often as it shall think
fit, but not less frequently than once in each period of three
calendar months.
6.2 The Management Committee shall determine all matters of a
procedural nature for conduct of its meetings.
6.3 Determinations of the Management Committee pursuant to clause
7.2 must not be inconsistent with this Agreement.
6.4 Any member of the Management Committee may requisition a meeting
the Management Committee by notice in writing to the Chairman.
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6.5 A meeting of the Management Committee called pursuant to clause
7.4 must be convened by the Chairman to take place within 14 days of
the date the requisition was served, and unless the members of the
Management Committee shall otherwise agree, shall meet in Brisbane.
6.6 A person shall be present at a meeting of the Management
Committee if the person:
(a) is present in person;
(b) is present by written proxy delivered to the Chairman at the
commencement of a meeting; or
(c) is present on the telephone.
3.1 The Management Committee shall make decisions by making a
resolution, being a resolution passed unanimously.
3.2 A meeting of the Management Committee shall be constituted if a
quorum is present, and a quorum shall be 1 person nominated by each
party.
3.3 The Management Committee shall ensure that full and complete
minutes are taken of:
(a) all matters discussed at a meeting;
(b) all resolutions passed by the Management Committee.
2.1 The Chairman must send to each party to this Agreement a copy of
all minutes of meetings of the Management Committee, within seven
days of the holding of a meeting.
2.2 Each party respectively shall be responsible for all costs
incurred by it in relation to:
(a) persons attending meetings of the Management Committee; and
(b) all matters arising from meetings of the Management
Committee.
INTERIM REPORTS
7.1 UniQuest must submit to Greatlands an interim report throughout
the duration of the Research Program, at no less frequency than once
is each period of three months.
7.2 An interim report must address:
(a) the progress in the achievement of the objectives of the
Research Program
(b) the anticipated progress in completing the Research Program
(c) any new intellectual property that arises in the Research
Program
(d) the prospects of commercialising any new intellectual
property
(e) any Milestones achieved since the last report
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(f) the anticipated progress in meeting Milestones.
FINAL REPORT
9.1 UniQuest must submit a final report to Greatlands within three
months of the conclusion of the Research Program.
9.2 The final report must address:
(a) the achievement of the objectives of the Research Program
(b) the reasons that any of the objectives of the Research
Program were not able to be achieved
(c) any new intellectual property that arose in the Research
Program
(d) the prospects of commercialising any new intellectual
property
(e) any recommendations for any further research; and
(f) the achievement of the Milestones.
APPLICATIONS FOR PATENTS
10.1 The parties must jointly decide what new inventions arising
from the Research Program must be patented.
10.2 UniQuest must expeditiously apply for the provisional patent
and patent of all new inventions:
(a) which the parties agree be patented; and
(b) which Greatlands wishes to be patented.
2.1 All provisional patents and patents must be applied for by
UniQuest in the sole name of the University.
2.2 All provisional patents and patents will be owned by the
University.
2.3 Greatlands must pay to UniQuest all UniQuest's costs in relation
to all applications for patents.
2.4 If Greatlands does not wish to patent any new invention, and
UniQuest does wish to patent that new invention UniQuest may do so
in its sole name at is sole expense, and that patent shall no longer
be subject to the provisions of clauses 13.1 to 13.3.
OWNERSHIP OF INTELLECTUAL PROPERTY
11.1 The parties acknowledge that the intellectual property, and all
improvements are the property of the University.
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11.2 UniQuest warrants that it has an exclusive license granted by
the University to commercialise the intellectual property throughout
the world, for the full term of this Agreement.
11.3 Greatlands must not:
(a) directly or indirectly contest or impair the University's
ownership or UniQuest's rights in relation to the
intellectual property;
(b) represent that it has any ownership interest in the
intellectual property.
2.1 In the event that any patent application filed by UniQuest or
the University in relation to any part of the intellectual property
shall not be successful, then all claims, inventions and discoveries
contained in those applications shall not form part of the
intellectual property for the purposes of this agreement.
PROMISE TO GRANT LICENSE TO COMMERCIALISE
12.1 Greatlands must pay to UniQuest, upon or before 1 July 1997, a
Promise to grant license Signing Fee of $200,000.00.
12.2 Until the completion of the Research Program UniQuest must not
grant to any person any license to commercialise the intellectual
property.
12.3 After the date of this Agreement and before the completion of
the Research Program:
(a) Greatlands must form a company ("JvCo") which:
(i) has fully or partly paid up share capital of at
least that amount which is the difference between
$2,500,000.00 and the aggregate of the amounts
mentioned in Schedule 2 paid by Greatlands as at the
date of the grant of the license referred to in
paragraph (c)
(ii) has as its subscribers Greatlands or other
persons to whom Greatlands has issued offers or
invitations to subscribe for shares in accordance
with the Corporations Law
(iii) has directors who are: Martin Gregory Wotton; and
Gerard Arthur O'Connell;
(iv) has a Memorandum of Association and Articles of
Association substantially upon the terms set out in
Schedule 7.
(e) Greatlands must enter into an allotment contract with JVCo.
in the form set out in Schedule 6;
(f) and upon the taking place of the events set out in
paragraphs (a) and (b), simultaneously:
(i) JVCO must:
(A) allot to UniQuest such number of treated
as fully paid up shares in its share capital
so that after the allotment UniQuest owns an
amount of not less than 40% of the total
issued (fully or partly paid up) capital in
JVCo;
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(B) pay to UniQuest the sum referred to
in clause 3.2(a) of the License set
out in Schedule 4;
(ii) UniQuest must grant to JVCo a License in the
form set out in Schedule 4;
(iii) JVCo and each of its shareholders must enter
into a Shareholders Agreement in the form set out in
Schedule 5;
(iv) An assignment of this Agreement from Greatlands
to JVCo, whereby JVCo shall from the time of the
assignment, assume all of Greatlands obligations
contained in this Agreement.
(e) Greatlands shall procure
(i) the signing by JVCo of the allotment contract referred
to in paragraph (b)
(ii) the signing by JVCo of the License referred to in
paragraph (c)(i)
(iii)the allotments of shares referred to in paragraph
(c)(ii)
(iv) the signing of the Shareholder Agreement referred to in
paragraph (c)(iii), by JVCo, and by all the
shareholders of JVCo
(v) the signing by JVCo of the assignment referred to in
paragraph (c)(iv).
5.1 UniQuest must do all the things and sign all documents and give
all such directions and consents as will expedite the undertaking
of the things referred to in clause 13.3.
PUBLIC STATEMENT
14. Neither UniQuest nor Greatlands may make any public statement other than a
proposed publication in respect of the results of the Research Program
without the consent of the Management Committee except where such public
statement is required by law.
INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS
15. If Greatlands shall learn or believe that:
(a) any unauthorised person has come into possession of any part of the
intellectual property;
(b) any employee of any party has made any improper or unauthorised use to
the intellectual property; or
(c) any unauthorised person doing any thing in contravention of rights
that attach to and arise from the intellectual property,
Greatlands must immediately report full particulars to UniQuest,
and must provide to UniQuest to all assistance and information it
may request with respect to that information.
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OWNERSHIP AND USE OF CONFIDENTIAL INFORMATION
15.1 The parties acknowledge that the confidential information is
the property of the disclosing party.
15.2 A recipient party must use the confidential information
solely for the purpose for which it was disclosed, and for no
other purpose whatsoever, without the prior written consent of the
disclosing party, which the disclosing party shall be at liberty
to give or to decline to give in it unfettered and uncontrolled
discretion.
15.3 Subject to this Agreement each party must keep secret and
confidential, and Greatlands must ensure that an affiliate keeps
secret and confidential information, and each party must not, and
Greatlands must ensure that an affiliate does not, disclose,
communicate, or otherwise make known to any person, whether during
this Agreement of after its termination, any part of the
confidential information for any purpose whatsoever, without the
prior written consent of the disclosing party, which the
disclosing party shall be at liberty to give or to decline to give
in it unfettered and uncontrolled discretion.
15.4 The recipient party shall be relieved from the recipient
party's obligations contained in clauses 16.2 and 16.3 in respect
to any confidential information which:
(a) the recipient party can prove with independent evidence was
in the possession of the recipient party as at the date of
the disclosure;
(b) becomes part of the public domain otherwise than by a breach
of this Agreement; or
(c) the recipient party can show was received in good faith from
a person;
(i) who is not a party to this agreement; and
(ii) who did not receive the confidential information
from the disclosing information from the disclosing
party of any person in respect to whom the disclosing
party can trace the provision of the confidential
information originating with it.
2.1 Clause 16.4 shall not abrogate affect or prejudice any rights
that accrued to the disclosing party prior to, or as a result of
such confidential information becoming part of the public domain.
2.2 The recipient party acknowledges that:
(a) damages may be an inadequate remedy to the disclosing
party in the event of any breach of clause 17.2 or 17.3
occurring, and that only injunctive relief or some other
equitable remedy might be adequate to properly protect the
interests of the disclosing party; and
(b) the disclosing party would not have entered into this
agreement but for the acknowledgement made by the recipient
party in paragraph (a).
51
<PAGE>
CONFIDENTIALITY - EMPLOYEES
16.1 The recipient party shall be at liberty to disclose the
confidential information to such of its employees, agents,
contractors and professional advisers as is necessary to enable
the recipient party to fully take advantage of the confidential
information for the purposes of this Agreement.
16.2 The recipient party acknowledges that each of the persons to
whom the recipient party is hereby permitted to disclose the
confidential information, before such disclosure is made, is
subject to contractual or other duties of confidentiality to the
recipient party at least to the extent imposed upon the recipient
party to this Agreement.
16.3 The disclosing party shall be at liberty to require, at any
time, that no confidential information be disclosed to an
employee, agent, contractor, or professional adviser unless that
person shall enter into a confidentiality undertaking upon such
terms as the solicitor for the disclosing party shall reasonably
require.
INFRINGEMENT OF CONFIDENTIALITY
18. If the recipient party shall learn or believe that;
(a) any unauthorized person has come into possession of any part of the
confidential information;
(b) any employee, agent contractor or professional adviser of any party
has made any improper or unauthorised use of the confidential
information; or
(c) any unauthorised person is doing any thing in contravention of rights
that attach to and arise from the confidential information, the
recipient party must immediately report full particular to the
disclosing party, and must provide to the disclosing party all
assistance and information it may request with respect to that
information.
PUBLICATIONS
18.1 UniQuest must provide to Greatlands a copy of any proposed
publication.
18.2 UniQuest may publish or authorize the presentation of a
proposed publication if the contents of the proposed publication
are the subject of:
(a) a patent that has issued; or
(b) an application for a patent or provisional patent that
is pending.
RELATIONSHIP BETWEEN THE PARTIES
19.1 The relationship between the parties is that of contractor
and researcher, and nothing shall be construed or interpreted to
make one party the agent or representative of the other.
19.2 Neither party may at any time, without the prior written
consent of the other act as or represent that it is the agent or
representative of the other,
52
<PAGE>
EXCLUSION OF WARRANTIES
20.1 Greatlands acknowledges the fundamental uncertainty with
respect to the undertaking of research.
20.2 Each party acknowledges that:
(a) except for such warranties on the part of UniQuest as are
expressly set out in this Agreement there no other terms,
warranties, undertakings or understandings whatsoever biding
upon UniQuest or between UniQuest and the other parties;
(b) UniQuest has not made, nor has any person on behalf of
UniQuest made any term, warranty, undertaking, or
understanding whatsoever that is not expressly set out in
this Agreement;
(c) to the full extent permitted by law, there are no
statutory warranties binding upon UniQuest; and
(d) no representation or promise of any description, not
expressly included in this Agreement, was made before this
Agreement was entered into by the other parties.
4.1 Greatlands acknowledges that UniQuest has not made and does
not make any warranty or representation whatsoever as to:
(a) the safety of the intellectual property
(b) the commercialisation of the products derived from the
intellectual property;
(c) the marketability of such products;
(d) the profits or revenues that may result from the
commercialisation of such products;
(e) the commercialisation prospects of any part of the
intellectual property;
(f) any, or any particular research outcome,
(g) whether any Milestone will be achieved, or is capable
of being achieved.
ASSIGNMENT, SUB-CONTRACTING, & TRANSFER OF SHARES
22.1 Greatlands must not assign, sub-contract, or transfer, any of
its rights or obligations contained in this Agreement to any
person, without prior consent in writing of UniQuest, which
consent UniQuest must not unreasonably withhold. UniQuest must
consent to an assignment sub-contracting and transfer of this
Agreement by Greatlands to another person that has the financial
capacity to meet Greatland's financial obligations in this
Agreement.
22.2 Greatlands must not:
(a) allot any shares in its share capital to any person who
is not immediately prior to the allotment already a
shareholder of Greatlands; or
53
<PAGE>
(b) accept, approve or register any transfer of shares to
any person who is not immediately prior to the transfer
already a shareholder of Greatlands,
without prior consent in writing of UniQuest, which consent
UniQuest must not unreasonably withhold.
2.1 UniQuest shall be entitled to withhold consent pursuant to
clause 23.1 or clause 23.2 until Greatlands:
(a) shall have complied with each obligation on the part of
Greatlands contained in this Agreement;
(b) if UniQuest shall so request, shall have provided to
UniQuest all information reasonably requested about the
proposed assignee, sub-contractor, transferee, share
allottee, or share transferee;
(c) if UniQuest shall so request, shall have provided to
UniQuest evidence that the proposed assignee,
sub-contractor, transferee, share allottee, or share
transferee, is capable of carrying out on the business
of Greatland in accordance with the terms of this
Agreement.
3.1 UniQuest shall be entitled to grant consent pursuant to clause
23.1 or clause 23.2 subject to conditions, including:
(a) that Greatlands and the proposed assignee, sub-contractor,
or transferee, execute an Assignment upon such terms as
UniQuest shall determine, and deliver an executed and stamped
copy of the Assignment to UniQuest;
(b) that UniQuest's reasonable legal costs of and incidental
to furnishing consent are paid by Greatlands.
2.1 UniQuest will consent to an assignment of this Agreement made
in accordance with clause 13.3(c)(iv).
STAMP DUTY
3 Greatlands must pay all stamp duties which may be payable or
assessed in connection with this Agreement, and indemnifies
UniQuest in respect to liabilities resulting from any delay or
omission to pay such stamp duties.
REPRESENTATION AND INDEMNITIES
24.1 All representation and warranties in this Agreement shall
survive the execution of this Agreement.
24.2 Each indemnity in this Agreement:
(a) shall be a continuing obligation;
(b) constitutes a separate and independent obligation of
the party giving the indemnity from its other
obligation under this Agreement; and
54
<PAGE>
(c) shall survive termination of all or any part of this
Agreement.
POSITION OF UNIQUEST
26.1 The parties acknowledge that:
(a) UniQuest is not the agent nor the representative of the
University;
(b) UniQuest does not represent or warrant any agency
relationship between it and the University;
(c) UniQuest does not warrant or represent that it is
entitled to or acts on behalf of the University in any
matter whatsoever.
25.2 The parties acknowledge that UniQuest enters into this
agreement wholly as a principal and not as the agent of any
person.
25.3 The parties acknowledge that UniQuest does not have any power to
authorise Greatlands to
represent itself as having any sponsorship or affiliation or approval
of the University.
25.4 Greatlands acknowledges that Greatlands must itself seek from the
University any such sponsorship or affiliation or approval.
25.5 UniQuest undertakes to consider favorably and if
appropriate, to support and assist Greatlands in obtaining
an appropriate case, such sponsorship or affiliation or
approval.
. Greatlands acknowledges that UniQuest makes no warranty or
representation in relation to the granting by the University of
consent for any such sponsorship or affiliation or approval, nor
in relation to any specific proposal to provide any such support,
nor in relation to any conditions, if any, which the University
may impose if it agrees to any such sponsorship, affiliation or
approval.
DISPUTE RESOLUTION
26.1 A party to this Agreement must not commence legal
proceedings against another party to this Agreement, unless that
party wishing to commence proceedings has complied with clauses
27.3 to 27.13.
26.2 Clause 27.1 and clauses 27.3 to 27.10 shall not apply where
a party seeks urgent interlocutory or equitable relief from a
Court.
26.3 When a party claims that a dispute has arisen under this
Agreement, that party must give written notice of that dispute to
each other party to this Agreement.
26.4 Following the notification of a dispute pursuant to clause
27.3, the parties must each within three days appoint a
representative to resolve the dispute.
26.5 The representative appointed pursuant to clause 27.4 must
have authority to resolve the dispute in all respects, and to
bind the party the person represents to any resolution of the
dispute.
55
<PAGE>
26.6 The representatives appointed pursuant to clause 27.4 must
use their best endeavors to resolve the dispute.
26.7 If a dispute has not been resolved within 10 days of the
first notification of the dispute, or such further period as the
parties or the representatives appointed pursuant to clause 27.4
shall allow, those representatives must use their best endeavours
to reach agreement upon a mechanism for the resolution of the
dispute.
26.8 The mechanism for resolution of a dispute for the purposes
of clause 27.7 may include, but need not necessarily be further
negotiations, mediation, conciliation, arbitration, litigation,
and expert determination.
26.9 The agreement upon a mechanism for the resolution of a
dispute pursuant to clause 27.7 must include agreement with
respect to such of the following as are applicable:
(a) a timetable for the taking of all necessary steps
relating to a resolution pursuant to the mechanism;
(b) a procedure for the selection of any person to be
appointed to act as a mediator, conciliator, or arbitrator;
(c) that person's remuneration; and
(d) who shall be responsible for the payment of that
remuneration.
4.1 If:
(a) the parties have not reached agreement upon a mechanism
for the resolution of a dispute within 15 days after the
notification of the dispute or any additional period agreed
upon pursuant to clause 27.7; or
(b) any party (other than the party notifying the dispute_
shall fail to observe the timetable referred to in clause
27.9(a),
any party may thereafter, commence
proceedings in any court of competent
jurisdiction in relation to that
dispute.
EVENTS OF DEFAULT
28. For the purposes of this Agreement, each of the following
shall be an Event of Default:
(a) if Greatlands:
(i) enters into any administration or makes any arrangement
or composition with its creditors generally
(ii) a petition for winding up the company is presented or
any order is made or any effective resolution is passed for
the winding up of the company;
(iii) a Receiver, or Receiver and Manager of the company's
property assets or undertaking is appointed or
56
<PAGE>
(iv) the Australian Securities Commission initiates any
action with a view to striking the name of the company off
the Register of Companies;
(e) if Greatlands shall assign, sub-contract, or transfer any
of its rights or obligations pursuant to this Agreement
without the prior written consent of UniQuest;
TERMINATION GENERALLY
28.1 Either party may terminate this Agreement by notice in
writing served upon the other if: (a) one party is in
default of any obligation contained in this Agreement;
(b) such default has continued for not less than 14 days;
(c) the non defaulting party serves upon the defaulting
party notice in writing requiring the default to be remedied
within 30 days of the date of such notice, or such greater
number of days as the non defaulting party may in its
discretion allow; and
(d) the defaulting party shall have failed to comply with
the notice referred to in paragraph (c).
4.1 If Greatlands in its absolute discretion is not satisfied with
the progress of the Research Program its first three months,
Greatlands may terminate this Agreement within 14 days before the
date that the third payment mentioned in Schedule 2 is due for
payment.
4.2 If Greatlands terminates this Agreement pursuant to clause
29.2:
(a) it is relieved from any further obligation to UniQuest
due to be performed after the date of termination but
(b) UniQuest is not liable to refund to Greatlands any
amount paid by Greatlands to UniQuest before the date
of termination.
TERMINATION BY REASON OF EVENT OF DEFAULT
30. If an Event of Default shall occur the non-defaulting party may by notice
in writing terminate this Agreement immediately.
RESULT OF TERMINATION - CONFIDENTIAL INFORMATION
30.1 Immediately upon the termination of this Agreement, however
that arises, unless the parties shall enter into a further
Agreement in respect to the confidential information, the recipient
party must immediately upon being so requested in writing by the
disclosing party, deliver to the disclosing party:
(a) all confidential information in its possession;
(b) all confidential information which it has provided to
any other person;
(c) all notes, memorandum, correspondence, reports,
summaries, and all other matters or
57
<PAGE>
things brought into existence by the party which in any
manner refers to any part of the confidential information;
and
(d) all notes, memoranda, correspondence, reports, summaries,
and all other matters or things brought into existence by any
person which in any manner refers to any part of the
confidential information.
4.1 Any part of the confidential information which cannot
conveniently be returned to the disclosing party by the recipient
party must be completely destroyed in such manner and at such time
as directed by the disclosing party.
4.2 The disclosing party shall be entitled to appoint a person to
oversee and verify the performance by the recipient party of its
obligations pursuant to clause 28.2
4.3 Upon the performance by the recipient party of its obligations
contained in this clause, the recipient party must certify in
writing to the disclosing party that performance has been
completed.
4.4 The certificate provided by the recipient party to the
disclosing party pursuant to clause 28.4 is agreed by the parties
to be a warranty by the recipient party that the recipient party
has performed all the recipient party's obligations contained in
clause 28.2.
SERVICE OF NOTICES
31.1 Any notice to be given or served by one party upon the other
pursuant to this Agreement shall be sufficiently served if:
(a) sent by pre-paid post to the office of the party as shown
in this Agreement, or to the last known address of the party
last known to the party serving such notice;
(b) sent by facsimile transmission; or
(c) delivered personally to the party or the party's address
as shown in this Agreement, or to the last known address of
the party last known to the party serving notice.
3.1 Where service is effected by prepaid post, service shall be
deemed to have taken place two business days after the document to
be served has been placed in a postal receptacle, and the document
shall be deemed to have been received by the addressee on the day
that it is deemed to have been served.
3.2 Where service is effected by facsimile transmission, service
shall be deemed to have taken place upon the completion of that
transmission.
3.3 Where service is effected personally, service shall be deemed
to have taken place at the time of actual delivery.
WHOLE AGREEMENT
33. The parties acknowledge that:
58
<PAGE>
(a) this agreement replaces all previous agreements of the
parties, f any, in respect of the same subject matter
as this agreement is concerned with;
(b) this agreement merges all discussion between the
parties on the subject matter if this Agreement, up to
the date of this Agreement;
(c) the whole of the agreement between the parties is
contained in this Agreement; and
(d) there are no agreements, understandings, other items
whether express or implied, or collateral agreements in
force or effect between the parties that are not
contained in this Agreement.
VARIATIONS
5. No variation to this Agreement (other than the Research Program)
shall be binding upon the parties unless that variation is in
writing, and is signed by all the parties to this Agreement.
WAIVER
34.1 No failure or delay of any party to exercise any right given
pursuant to this Agreement or to insist on strict compliance by any
other party of any obligation in this Agreement shall constitute a
waiver of any party's rights to demand exact compliance with the
terms of this Agreement.
34.2 Waiver by any party of any particular default by any other
party shall not affect or prejudice each party's right in respect of
any prior or subsequent default of the same or of a different
nature.
34.3 Any delay or omission by any party to exercise any right
arising from any default shall not affect or prejudice that party's
right in respect to such a default or an subsequent default or the
continuance of any default.
34.4 Any waiver shall be an effective waiver only if the waiver is
expressly set out in writing and signed by the party's making the
waiver.
WARRANTY OF AUTHORITY
36. Where this Agreement is signed by a person for and on behalf of a party to
this Agreement, that person:
(a) warrants that the person is authorised agent of that party
will express authority to enter into and sign this Agreement for
and on behalf of that party, and thereby to bind that party to
the obligations upon that party contained in this Agreement; and
(b) acknowledges that the other party to this Agreement would
not have entered into this agreement but for the warranty of
authority contained in paragraph (a).
59
<PAGE>
APPLICABLE LAW
36.1 The parties agree that this Agreement is made and entered
into in the State of Queensland in Australia.
36.2 The parties agree to submit themselves to the exclusive
jurisdiction of the laws in force for the time being in
Queensland.
36.3 The parties agree to submit themselves to the jurisdiction of
a court in Queensland whether State or Federal.
SEVERANCE
38. If it is held by a court that:
(a) any part of this Agreement is or would be void, voidable,
illegal or unenforceable; or
(b) the application of any part of this Agreement to any person
or circumstances shall be or become invalid or unenforceable
unless any part of this Agreement were severed from this
Agreement, that part shall be severable and shall not affect the
continued operation of the remaining terms of this Agreement.
SIGNATURES OF PARTIES
60
<PAGE>
SIGNED by )
- ------
David A. Evans )
for UNIQUEST LIMITED )
----------------
in the presence of )
-----------------------------------
David A. Evans
-----------------------------------
The Common Seal of )
Greatlands Investment (Australia) Ltd )
Was affixed in the presence of )
-----------------------------------
-----------------------------------
Director
61
<PAGE>
EXHIBIT 10(d)
62
<PAGE>
THIS NOVATION DEED is made the TWENTY FOURTH day of DECEMBER 1997,
BETWEEN: VISIONCORP INC. a Delaware Corporation (called "the transferee")
AND: GREATLANDS INVESTMENTS (AUSTRALIA) LIMITED ACN
003 641 843 of 132 Alice Street Brisbane in the State of Queensland
(called "the company")
AND: GEOPHYSICAL TECHNOLOGY LIMITED ACN 072 470 243
of Level 3, 9 Barrack Street, Sydney in the State of New South
Wales (called "the continuing party")
AND: JOHN MILLWOOD STANLEY and ROSELLO GONZALO STANLEY both of Lot
19 Rowlands Road, Armidale in the State of New South Wales
AND: MALCOLM KEITH CATTACH and FONGUE LANGUE CATTACH both of 11
Watson Avenue, Armidale in the State of New South Wales
AND: UNIQUEST LIMITED ACN 010 529 898 of Research Road, The University of
Queensland, St. Lucia in the State of Queensland
AND: AGRI-BREEDERS MANAGEMENT SERVICES PTY LIMITED ACN 003 862 333
of Level 3, 9 Barrack Street, Sydney in the State of New South Wales
WHEREAS
A. This present agreement is supplemental to an agreement dated
the 7th day of October 1997 and made between the company and
the continuing party.
B. The company desires to be released and discharged from the
contract contained in the said agreement and the continuing
party have agreed to release and discharge the company upon
the terms of the transferee's undertaking to perform the said
contract and to be bound by the terms of the said agreement.
IT IS HEREBY AGREED AS FOLLOWS:
1. SUBSTITUTED PARTY TO ASSUME LIABILITY
1.1 The transferee undertakes to perform the said
contract and to be bound by the terms of the said
agreement in every way as if the transferee was a
party to the said agreement in lieu of the company.
2. ACCEPTANCE OF TRANSFER BY CONTINUING PARTY
2.1 The continuing party releases and discharges the
company from all claims and demands whatsoever in
respect of the said agreement and accepts the
liability of the transferee upon the said agreement
in lieu of the liability of the company and agrees to
be bound by the terms of the said agreement in every
way as if the transferee was named in the said
agreement as a party thereto in place of the company.
63
<PAGE>
IN WITNESS the parties have duly executed this Deed on the date first mentioned.
VISIONCORP INC.
By: /s/
THE COMMON SEAL of )
GREATLANDS INVESTMENTS )
(AUSTRALIA) LIMITED )
(ACN 003 641 843) was hereunto affixed by ) Director
authority of a Resolution of the Board of )
Directors in the presence of )
)
a Director and )
) Director
Director and in the presence of: )
THE COMMON SEAL of )
GEOPHYSICAL TECHNOLOGY )
LIMITED (ACN 072 470 243) was hereunto )
affixed by authority of a Resolution of the ) Director
Board of Directors in the presence of )
)
a Director and )
)
a Secretary/Director in the presence of: ) Secretary
SIGNED, SEALED AND DELIVERED by )
the said JOHN MILLWOOD STANLEY in )
the presence of: )
Witness:
64
<PAGE>
SIGNED, SEALED AND DELIVERED by )
the said ROSELLI GONZALO STANLEY )
in the presence of: )
Witness:
SIGNED, SEALED AND DELIVERED by )
the said MALCOLM KEITH CATTACH )
in the presence of: )
Witness:
SIGNED, SEALED AND DELIVERED by )
the said FONGUE LANGUE CATTACH in )
in the presence of: )
Witness:
UNIQUEST LIMITED (ACN 010 529 898) )
by it Managing Director DAVID )
ALEXANDER EVANS who warrants that )
he is authorised to execute this agreement on )
behalf of the company
Witness:
THE COMMON SEAL of AGRI- )
BREEDERS MANAGEMENT )
SERVICES PTY LIMITED )
(ACN 003 862 333) was hereunto affixed by ) Director
authority of a Resolution of the Board of )
Directors in the presence of )
)
a Director and )
) Secretary
a Secretary/Director and in the presence of:
65
<PAGE>
THIS NOVATION DEED is made this TWENTY FOURTH day of DECEMBER 1997.
BETWEEN: VISIONCORP INC. a Delaware Corporation (called "the transferees)
AND: GREATLANDS INVESTMENTS (AUSTRALIA) LIMITED ACN
003 641 843 of 132 Alice Street Brisbane in the State of Queensland
(called "the company")
AND: UNIQUEST LIMITED ACN 010 529 898 of Research Road, The University of
Queensland, St. Lucia in the State of Queensland
(called "the continuing party")
WHEREAS
A. This present agreement is supplemental to an agreement dated the 16th day
of June 1997 and made between the company and the continuing party.
B. The company desires to be released and discharged from the contract
contained in the said agreement and the continuing party have agreed to
release and discharge the company upon the terms of the transferee's
undertaking to perform the said contract and to be bound by the terms of
the said agreement.
IT IS HEREBY AGREED AS FOLLOWS
1. SUBSTITUTED PARTY TO ASSUME LIABILITY
1.1 The transferee undertakes to perform the said
contract and to be bound by the terms of the said
agreement in every way as if the transferee was a
party to the said agreement in lieu of the company.
2. ACCEPTANCE OF TRANSFER BY CONTINUING PARTY
2.1 The continuing party releases and discharges the
company from all claims and demands whatsoever in
respect of the said agreement and accepts the
liability of the transferee upon the said agreement
in lieu of the liability of the company and agree to
be bound by the terms of the said agreement in every
way as if the transferee was named in the said
agreement as a party thereto in place of the company.
3. AMENDMENT OF AGREEMENT
3.1 The Parties agree that the document referred to in
Recital A of this agreement is amended in the
following manner:
Insert at the end of clause 13.2 the words "in the
Field".
4. ACCRUED RIGHTS
4.1 The Transferee and the Continuing Party each
acknowledge the rights of each other that have
accrued pursuant to clause 4.3 of the Agreement
referred to in Recital A. This Novation Agreement
shall not affect those accrued rights.
66
<PAGE>
IN WITNESS the parties have duly executed this Deed on the date first mentioned.
VISIONCORP INC.
By
THE COMMON SEAL of )
GREATLANDS INVESTMENTS )
(AUSTRALIA) LIMITED )
(ACN 003 641 843) was hereunto affixed by ) Director
authority of a Resolution of the Board of )
Directors in the presence of )
)
a Director and )
) Director
Director and in the presence of:
UNIQUEST LIMITED (ACN 010 529 898) )
by its Managing Director DAVID )
ALEXANDER EVANS who warrants that )
he is authorised to execute this agreement on )
behalf of the company. )
Witness
67
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted
from VisionGlobal Corporation (formerly Flamingo Capital, Inc.)
December 31, 1997 financial statements and is qualified in its
entirety by reference to such financial statements.
</LEGEND>
<CIK> 0000894535
<NAME> VisionGlobal Corporation
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> DEC-31-1997
<CASH> 0
<SECURITIES> 0
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 0
<DEPRECIATION> 0
<TOTAL-ASSETS> 0
<CURRENT-LIABILITIES> 0
<BONDS> 0
0
0
<COMMON> 1,000
<OTHER-SE> (1,000)
<TOTAL-LIABILITY-AND-EQUITY> 0
<SALES> 0
<TOTAL-REVENUES> 0
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 0
<INCOME-TAX> 0
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 0
<EPS-PRIMARY> .00
<EPS-DILUTED> .00
</TABLE>
