UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) August 1, 1999
VisionGlobal Corporation
(Exact name of registrant as specified in its charter)
Nevada 033-55254-25 87-0438636
(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification No.)
44 Montgomery Street, San Francisco, California 94104
(Address of principal executive offices) (Zip Code)
(415) 955-0585
Registrant's telephone number, including area code
599 Lexington Avenue, Suite 2300, New York, New York 10022
(Former name or former address, if changed since last
report.)
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ITEM 5. OTHER MATTERS.
On August 1, 1999, VisionGlobal Corporation (the "Company") named
Martin G. Wotton Chairman and President and also named Joseph W. Hipple III,
Executive Vice President, Chief Operating Officer.
On August 12, 1999, VisionGlobal Corporation (the "Company") executed a
Plan of Merger for the merger of Lone Peak Research, Inc., a Utah corporation
("Lone Peak"), with and into the Company. The Company will be the surviving
entity effective after Articles of Merger have been filed with the appropriate
office in Utah and Nevada. Jeffrey G. Ballif ("Ballif")is the sole shareholder
and director of Lone Peak. Ballif will receive 100,000 shares of the Company's
common stock in exchange for all of the issued and outstanding common shares of
Lone Peak. Lone Peak's only asset consists of certain intellectual property
rights developed by Ballif and contributed to Lone Peak pertaining to
development of a working prototype 5.7 gigahertz radio operating at 25 megabits
per second.
In connection with the merger, the Company will employ Jeffrey G.
Ballif as its Senior Vice President, Engineering.
The Company recently incorporated a new subsidiary, VisionGlobal
Network Corporation, for the purpose of developing and deploying two-way,
high-speed wireless network solutions throughout the United States and abroad.
In connection with this, the Company named Martin G. Wotton, Chairman and
Director; Joseph W. Hipple III, Chief Executive Officer, President and Director;
and Jeffrey G. Ballif, Director.
The Company's Board of Directors recently amended its bylaws to permit
the directors to establish the number of directors by resolution as long as the
number is at least 1 and no more than 12. The Board of Directors also increased
the number of directors on its Board of Directors to three. Joseph W. Hipple,
III was appointed to fill a vacancy on the Board of Directors.
The Company recently established business offices in San Francisco,
California and has qualified to do business in the State of California. The
Company's address in San Francisco, which is also its new principal business
address, is 44 Montgomery Street, Suite 500, San Francisco, California 94104.
Its phone number is (415) 955-0585.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Exhibits. The following documents are being filed as exhibits to this
report:
(i) Form of Plan and Agreement of Merger between VisionGlobal
Corporation and Lone Peak Research, Inc.
(ii) Form of Employment Agreement for Jeffrey G. Ballif and Joseph
W. Hipple, III.
(b) Financial Statements. N/A.
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Pursuant to the requirements of the Securities and Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
VisionGlobal Corporation
(Registrant)
October 13, 1999 __________________________________
(Date) By: Martin G. Wotton
President and Director
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EXHIBIT (i)
FORM OF PLAN OF MERGER
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PLAN AND AGREEMENT OF MERGER
THIS PLAN AND AGREEMENT OF MERGER (this "Agreement") made and entered
into this 12th day of August, 1999, by and among Vision Global Corp., a Nevada
corporation (VisionGlobal") and Lone Peak Research Corp., a Utah corporation
("Lone Peak"), and Jeffrey G. Ballif, an individual resident of Utah ("Ballif").
RECITALS
A. Lone Peak is a corporation duly organized and existing under
the laws of the State of Utah and Ballif is its sole
shareholder.
B. VisionGlobal is a corporation duly organized and existing
under the laws of the State of Nevada.
C. On the date of this Agreement, Lone Peak has authority to
issue 50,000,000 common shares, no par value (the "Lone Peak
Common Shares"), of which 5,000,000 shares are issued and
outstanding.
D. On the date of this Agreement, VisionGlobal has authority to
issue 100,000,000 shares of common stock, $.001 par value (the
"VisionGlobal Common Stock"), of which 17,242,000 shares of
are issued and outstanding.
E. The respective Boards of Directors of VisionGlobal and Lone
Peak deem it advisable and in the best interests of the
corporations' respective shareholders that Lone Peak be
acquired by VisionGlobal through a merger (the "Merger") of
Lone Peak with and into VisionGlobal, which shall acquire all
of the business and assets of Lone Peak and that the issued
and outstanding Lone Peak Common Shares shall be converted
into shares of VisionGlobal Common Stock on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual warranties and covenants
set forth herein, the parties hereto agree as follows:
AGREEMENT
1. Merger of Lone Peak into VisionGlobal.
1.1 Merger of Lone Peak with and into VisionGlobal. VisionGlobal and
Lone Peak hereby adopt the plan of merger encompassed by this Agreement and
hereby agree that Lone Peak shall merge with and into VisionGlobal on the terms
and conditions set forth herein. Lone Peak will, upon the later of (i) filing of
the Certificate of Merger contemplated by section __ of the Nevada Business
Corporation Act (the "Nevada Act") and (ii) the date of filing of the Articles
of Merger contemplated by section 1105 of the Utah Revised Business Corporation
Act (the "Utah Act") (the "Effective Date"), merge with and into VisionGlobal,
and thereafter the separate existence of Lone Peak will cease. As of the
Effective Date, VisionGlobal shall succeed to all of the rights, privileges,
powers and property, including, without limitation, all rights, privileges,
franchises, patents, trademarks, licenses, registrations, bank accounts,
contracts, patents, copyrights, intellectual property rights and other assets of
every kind and description of Lone Peak, and VisionGlobal shall assume all of
the obligations and liabilities of Lone Peak, excepting and excluding, (i) the
minute books and stock records of Lone Peak insofar as they relate solely to its
organization and capitalization, and (ii) the rights of Lone Peak arising out of
this Agreement. The Merger will occur in accordance with the provisions of the
Nevada Act and Utah Act.
1.2 Pending and Subsequent Actions. Lone Peak will cooperate, and will
cause its officers, directors and other employees to cooperate, with
VisionGlobal on and after the Effective Date (i) to collect all receivables and
other items owing to Lone Peak and (ii) to prosecute claims and furnish
information, testimony and other assistance in connection with all actions,
proceedings, arrangements or disputes based upon contracts, arrangements or acts
of Lone Peak which were in effect or which occurred on or prior to the Merger.
2. Delivery of VisionGlobal Common Stock.
2.1 Conversion of Lone Peak Common Shares. Effective as of the
Effective Date, all of the issued and outstanding Lone Peak Common Shares shall
be converted to 100,000 shares of VisionGlobal Common Stock. The share
certificate(s) representing the issued and outstanding Lone Peak Common Shares
shall be deemed to represent a total of 100,000 shares of VisionGlobal Common
Stock.
2.2 Issuance and Delivery of VisionGlobal Common Stock. Upon surrender
of certificates representing the issued and outstanding Lone Peak Common Shares,
VisionGlobal will issue and deliver a certificate representing 100,000 shares of
VisionGlobal Common Stock to the person entitled thereto.
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2.3 Surrender and Conversion of Lone Peak Share Certificates. Jeff
Ballif shall surrender the certificate representing the Lone Peak Common Shares
held by him as of the Effective Date, in person to Joseph W. Hipple at the
Closing. Upon receipt of the surrendered share certificate of Lone Peak Shares,
a replacement certificate reflecting shares of VisionGlobal Common Stock shall
be issued and caused to be delivered in accordance with this Agreement.
2.4 Closing/Closing Date. The Closing of the transactions contemplated
herein (the "Closing") shall be held at Parsons Behle & Latimer, 201 South Main
St., Suite 1800, beginning at 10:00 a.m. Mountain Time on or before August 31,
1999, or at such other place and on such other date as the parties may agree
(the "Closing Date").
3. Representations and Warranties of Lone Peak and Ballif. Lone Peak and
Ballif jointly and severally represent and warrant to VisionGlobal as
follows:
3.1 Corporate Organization. Lone Peak is a corporation duly organized,
validly existing and in good standing under the laws of the State of Utah, and
is not required to be qualified to do business as a foreign corporation in any
other jurisdiction.
3.2 Validity of Transaction. Lone Peak has full right, power and
authority to enter into this Agreement and to perform its obligations hereunder.
This Agreement has been duly authorized, executed and delivered by Lone Peak and
constitutes the valid and legally binding obligation of Lone Peak.
3.3 Capitalization. Immediately prior to the Effective Date, the
authorized capital stock of Lone Peak shall consist solely of 50,000,000 common
shares, of which 5,000,000 shares will be issued and outstanding and held of
record by Jeff Ballif. Neither Lone Peak nor Ballif has any agreement or
understanding to issue any capital stock directly or upon conversion of any debt
or equity, or to sell any of the issued and outstanding Lone Peak Common Shares.
3.4 Litigation. Lone Peak is not a party to any litigation or any
governmental proceeding and, to the best of its and Ballif's knowledge, there is
no valid basis for any such litigation or proceeding. There is no judgment or
order of any court or governmental authority in effect against Lone Peak.
3.5 Assets. Loan Peak has good and marketable title to all of the
assets described on Exhibit A attached hereto (the "Assets"). Lone Peak owns the
Assets free and clear of any mortgages, security interests or liens of any kind.
3.6 Employees. Lone Peak has no employees or employee pension or
welfare plans, as such plans are defined in sections 3(2) and 3(1) of the
Employment Retirement Income Security Act of 1974.
3.7 Intellectual Property. Exhibit A identifies, as part of the list of
Lone Peak's Assets, all intellectual property, including patents, patent
applications, trademarks, trademark applications, service marks, service mark
applications, tradenames, copyrights, know how, trade secrets, computer
software, firmware, manuals and documentation related to such intellectual
property, which is licensed to, owned by or registered in the name of Lone Peak
or in which Lone Peak has any rights (the " Intellectual Property"). Lone Peak
is not a licensor in respect of any Intellectual Property and has not granted
any other person any rights in any such Intellectual Property. Lone Peak owns or
possesses adequate licenses or other rights to use all of such Intellectual
Property.
3.8 Contracts. Except for this Agreement, Lone Peak is not a party to
any contract, whether written or oral.
3.9 Liabilities. Lone Peak has no indebtedness or liabilities of any
kind, whether accrued, fixed or contingent.
3.10 Finders or Brokers. Except for Lance King, Lone Peak has not
employed any investment banker, broker, finder or intermediary in connection
with the transactions contemplated hereby who might be entitled to a fee or
commission in connection with this Agreement and the transactions contemplated
hereby. Lone Peak shall be responsible for any fee, commission or other
remuneration paid to Mr. King in connection with any of the services he may have
performed and shall indemnify and hold harmless VisionGlobal against any claims
for such fees, commission or other remuneration made by Mr. King or any other
person.
3.11 Power and Capacity of Ballif. Ballif represents and warrants that
he has the requisite power and capacity to execute and deliver this Agreement,
to perform his obligations hereunder and to consummate the transactions
contemplated hereby and that this Agreement has been duly executed and delivered
by Ballif, constitutes the valid and binding Agreement of Ballif and is
enforceable against him in accordance with its terms.
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3.12 Lone Peak Common Shares. Ballif represents and warrants that he is
the beneficial and record owner of all of the issued and outstanding Lone Peak
Common Shares, and such shares are held by Ballif as the record owner thereof,
free and clear of all liens, charges, encumbrances, equities and claims
whatsoever and are not subject to any restriction with respect to their
transferability (other than restrictions on transfer under federal and state
securities laws).
4. Representations and Warranties of VisionGlobal. VisionGlobal represents
and warrants to Lone Peak as follows:
4.1 Corporate Organization. VisionGlobal is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Nevada, and is duly qualified to do business as a foreign corporation in each
other jurisdiction in which the failure to so qualify would have a material
adverse effect on its business as presently conducted and as proposed to be
conducted.
4.2 Validity of Transaction. VisionGlobal has full right, power and
authority to enter into this Agreement and to perform its obligations hereunder.
This Agreement has been duly authorized, executed and delivered by VisionGlobal
and constitutes the valid and legally binding obligation of VisionGlobal.
4.3 Capitalization. Immediately prior to the Effective Date, the
authorized capital stock of VisionGlobal shall consist of 100,000,000 shares of
Common Stock, $.001 par value, of which 17,242,000 shares are issued and
outstanding.
4.4 Litigation. VisionGlobal is not a party to any litigation or any
governmental proceeding and, to the best of its knowledge, there is no valid
basis for any such litigation or proceeding. There is no judgment or order of
any court or governmental authority in effect against VisionGlobal.
4.5 Finders or Brokers. VisionGlobal has not employed any investment
banker, broker, finder or intermediary in connection with the transactions
contemplated hereby who might be entitled to a fee or commission in connection
with this Agreement or the transactions contemplated hereby.
5. Conditions Precedent to VisionGlobal's Obligations to Close.
VisionGlobal's obligation to consummate the Merger is subject to the
satisfaction, on or before the Closing Date, of the following
conditions:
5.1 Performance of Acts and Undertakings of Lone Peak. Each of the acts
and undertakings of Lone Peak and/or Ballif to be performed on or before the
Closing Date pursuant to the terms of this Agreement shall have been duly
performed.
5.2 Certified Resolutions. Lone Peak shall have furnished VisionGlobal
with a copy, certified by Lone Peak's secretary, of (1) a resolution or
resolutions duly adopted by Lone Peak's board of directors authorizing and
approving this Agreement and directing that it be submitted to a vote of Lone
Peak's shareholders, and (2) a resolution or resolutions adopting this Plan and
Agreement of Merger, duly approved by the holders of at least a majority of the
total number of outstanding Lone Peak Common Shares.
5.3 Continued Accuracy of Lone Peak's and Ballif's Representations and
Warranties. All of the representations and warranties of Lone Peak and Ballif's
contained in this Agreement shall be true in every respect on and as of the
Closing Date, with the same effect as though such representations and warranties
had been made on and as of that date; and VisionGlobal shall have received at
the Closing a certificate, dated the Closing Date and executed by the president
or a vice president of Lone Peak, containing a representation and warranty to
that effect.
5.4 Consents. All consents of other parties to the mortgages, notes,
leases, franchises, agreements, licenses, and permits of Lone Peak, if any,
necessary to permit consummation of the Merger shall have been obtained.
5.5 Adoption of Merger by Shareholders. At least a majority of the
outstanding shares of Lone Peak Shares shall have been voted for the adoption of
the Merger.
5.6 Dissenting Shares. No shareholder of Lone Peak shall be a
"dissenter" as defined in section 1301 of the Utah Revised Business Corporation
Act.
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5.7 Employment Agreements. Those executives of Lone Peak shall have
entered into employment agreements on terms satisfactory to such executives or
employees and their respective counsel and to VisionGlobal and its counsel.
5.8 Filing of Merger Agreement. The Plan and Agreement of Merger shall
have been filed in the office of the Secretary of State or other office or each
jurisdiction in which such filings are required in order for the Merger to
become effective, or VisionGlobal shall have satisfied itself that all such
filings will be or are capable of being made effective as of or immediately
after the Closing Date.
5.9 Satisfaction with Investigation. VisionGlobal shall have been
satisfied in all respects with the results of its investigation under paragraph
7 below.
6. Condition Precedent to Lone Peak's and Ballif's Obligation to Close.
Lone Peak's and Ballif's obligation to consummate the Merger is subject
to the satisfaction on or prior to the Closing Date of the following
conditions:
6.1 Performance of Acts and Undertakings by VisionGlobal. Each of
VisionGlobal's acts and undertakings to be performed on or before the Closing
Date pursuant to this Agreement shall have been performed.
6.2 Certified Resolutions. VisionGlobal shall have furnished Lone Peak
with certified copies of resolutions duly adopted by the board of directors of
VisionGlobal authorizing and approving the execution and delivery of this Plan
and Agreement of Merger and authorizing the consummation of the transactions
contemplated by this Agreement.
6.3 Continued Accuracy of VisionGlobal's Representations and
Warranties. The representations and warranties of VisionGlobal contained in this
Agreement shall be true on and as of the Closing Date with the same effect as
though such representations and warranties had been made on and as of that date;
and Lone Peak shall have received at the closing a certificate, dated the
Closing Date and executed on behalf of VisionGlobal by its president or any vice
president, containing a representation and warranty to that effect.
7. Investigation by VisionGlobal. Prior to the Closing Date, VisionGlobal
may directly or through its representatives make such investigation of
the Assets, including, without limitation, the Intellectual Property,
and business of Lone Peak (including, without limitation, confirmation
of its cash, inventories, accounts, accounts receivable and
liabilities, and investigation of its titles to and the condition of
its property and equipment) as VisionGlobal deems necessary or
advisable. The investigation shall not affect (1) Lone Peak's
representations and warranties contained or provided for in this
Agreement, (2) VisionGlobal's right to rely on those representations
and warranties, or (3) VisionGlobal's right to terminate this Agreement
as provided in this paragraph 7 and in paragraph 11. Lone Peak shall
allow VisionGlobal and its representatives full access, at reasonable
times after the date of execution of this Agreement, to the premises
and to all the books, records, and assets of Lone Peak, and Lone Peak's
officers shall furnish to VisionGlobal such financial and operating
data and other information with respect to the business and properties
of Lone Peak as VisionGlobal shall from time to time reasonably
request. VisionGlobal agrees not to disclose any confidential
information obtained in the course of its investigation or use it for
any purposes other than evaluation of Lone Peak with respect to the
contemplated Merger.
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As soon as practicable, and in any event within 30 days after
the receipt of any supporting documentation requested by VisionGlobal,
VisionGlobal shall give Lone Peak notice if VisionGlobal has decided that it
wishes to terminate this Agreement based on any information obtained during the
course of its investigation. The notice shall specify the information obtained
during the investigation on which VisionGlobal's decision to terminate is based.
Lone Peak shall have 10 days after receipt of the notice to review that
information with VisionGlobal. If VisionGlobal does not withdraw its notice
within this 10-day period, then all further obligations of VisionGlobal and of
Lone Peak under this Agreement shall terminate without further liability of
VisionGlobal to Lone Peak or of Lone Peak to VisionGlobal, except their
respective obligations to return documents as provided in paragraph 13. If
VisionGlobal does not advise Lone Peak within the 30 day period specified in the
first sentence above that it wishes to terminate this Agreement, VisionGlobal
shall be deemed to be satisfied with the information relating to Lone Peak
obtained during the course of its investigation, subject to VisionGlobal's
rights concerning the continued accuracy of Lone Peak's and Ballif's warranties
and representations set forth in paragraph 3.
8. Survival of Representations, Warranties, and Indemnities.
The representations, warranties, and indemnities included or provided
for in this Agreement or in any schedule or certificate or other document
delivered pursuant to this Agreement shall survive the Closing Date for a period
of 4 years. No claim may be made under this paragraph unless written notice of
the claim is given within that 4-year period.
9. Indemnification. Notwithstanding VisionGlobal's investigations of Lone
Peak before the Closing Date, and notwithstanding the fact that
VisionGlobal may be deemed satisfied as to certain matters investigated
by VisionGlobal, all as provided in paragraph 7, Lone Peak and Ballif
shall indemnify, defend, and hold VisionGlobal and each of its
subsidiaries harmless from and against any and all losses, liabilities,
costs, expenses, judgments, assessments, penalties, damages,
deficiencies, suits, actions, claims, proceedings, demands, and causes
of action, including but not limited to reasonable attorney fees, court
costs, and related expenses, that were caused by, arose as a result of,
or arose with respect to any of the following:
9.1 Breach of Representations and Warranties. Any inaccuracy in any
representation or warranty or any breach of any warranty of Lone Peak or Ballif
under this Agreement or any schedule, certificate, instrument, or other document
delivered pursuant to this Agreement;
9.2 Breach of Covenant. Any failure of Lone Peak or Ballif duly to
perform or observe any term, provision, covenant, or agreement to be performed
or observed by Lone Peak or Ballif, as the case may be, pursuant to this
Agreement, and any schedule, certificate, agreement, or other document entered
into or delivered pursuant to this Agreement; or
9.3 Claims. All claims under this provision for indemnity shall be made
within the time period and in the manner provided for in paragraph 8.
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10. Further Assurances. VisionGlobal, Lone Peak and Ballif each agrees that
from time to time, as and when requested by any party, it will execute,
acknowledge, deliver and file all proper deeds, assurances,
assignments, bills of sale, assumptions and other documents, and do, or
cause to be done, all other acts and things necessary or proper in
order to vest, perfect, assure or confirm in VisionGlobal title to and
possession of all the Assets and stated liabilities of Lone Peak, or
otherwise necessary or proper to carry out the intent and purposes of
this Agreement.
11. Termination of this Agreement. In addition to the termination rights
provided for in paragraph 8, this Agreement and the transactions
contemplated under this Agreement may be terminated at any time prior
to the Closing Date, either before or after the meeting of Lone Peak's
shareholders: 11.1 Consent of Parties. By mutual consent of
VisionGlobal, Ballif and Lone Peak; 11.2 For Breach by Lone Peak. By
VisionGlobal if there has been a material misrepresentation or a
material breach of warranty in Lone Peak's or Ballif's representations
and warranties set forth in this Agreement or in any schedule or
certificate delivered pursuant to this Agreement; 11.3 For Breach by
VisionGlobal. By Lone Peak if there has been a material
misrepresentation or a material breach of warranty in VisionGlobal's
representations and warranties set forth in this Agreement; 11.4 Change
in Lone Peak's Condition. By VisionGlobal if it has determined that the
business, Assets, or financial condition of Lone Peak have been
materially and adversely affected, whether by reason of changes,
developments, or operations in the ordinary course of business or
otherwise; 11.5 Failure to Close. By Lone Peak or by VisionGlobal if
the Effective Date referred to in paragraph 1.1 has not occurred by
December 31, 1999;
12. Termination of Obligations. In the event that this Agreement is
terminated pursuant to paragraph 11 or paragraph 7, or because of the
failure to satisfy any of the conditions specified in paragraph 5 or
paragraph 6, all further obligations of VisionGlobal and of Lone Peak
under this Agreement shall terminate without further liability of
VisionGlobal to Lone Peak or Lone Peak to VisionGlobal, except for the
obligations of both parties under paragraph 13 below.
13. Return of Documents in Event of Termination. In the event of the
termination of this Agreement for any reason, VisionGlobal will return
to Lone Peak all documents, work papers, and other materials (including
copies) relating to the transactions contemplated by this Agreement,
whether obtained before or after execution of this Agreement.
VisionGlobal will not use any information so obtained for any purpose,
and will take all practicable steps to have such information kept
confidential.
14. Miscellaneous.
14.1 Amendments. At any time before or after approval and adoption by
the shareholders of Lone Peak, this Agreement may be amended in any manner
(except that the provisions of paragraph 2 may not be amended without the
approval of the shareholders of Lone Peak) as may be determined in the judgment
of the respective Boards of Directors of VisionGlobal and Lone Peak to be
necessary, desirable or expedient in order to clarify the intention of the
parties hereto or to effect or facilitate the purposes and intentions of this
Agreement.
14.2 Attorney Fees and Costs in Event of Termination. In the event of
the termination of this Agreement for any reason, each party shall bear its own
costs and expenses, including attorney fees.
14.3 Public Announcement. VisionGlobal may make public announcement or
issue a press release with respect to this Agreement or the transactions
contemplated by it.
14.4 Meeting of Lone Peak's Shareholders. Lone Peak shall take all
necessary steps to call a meeting of its shareholder, or to otherwise obtain
such shareholder's consent to the Merger, to be held within 7 days from the date
of this Agreement, which number of days includes adequate time for the
preparation and mailing of proxy statements if applicable. In all proxy
statements or other communications with the shareholders on this subject, Lone
Peak's board of directors shall recommend to the shareholders that they adopt
the plan of merger and approve the terms of this Agreement.
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14.5 Covenant to Operate in the Ordinary Course. Between the date of
this Agreement and the Closing Date, Lone Peak shall operate its business only
in the ordinary course and in a normal manner consistent with past practice.
During this period, Lone Peak shall not encumber any Asset or enter into any
transaction or make any commitment relating to its Assets or business otherwise
than in the ordinary course of its business (consistent with its prior
practices), or take any action that would render inaccurate any representation
or warranty contained in this Agreement or would cause a breach of any other
covenant under this Agreement, without first obtaining the written consent of
VisionGlobal.
14.6 Governing Law; Successors and Assigns; Counterparts; Entire
Agreement. This Agreement (a) shall be construed under and in accordance with
the laws of the State of Utah; (b) shall be binding on and shall inure to the
benefit of the parties to the Agreement and their respective successors and
assigns; (c) may be executed in one or more counterparts, all of which shall be
considered one and the same agreement, and shall become effective when one or
more counterparts shall have been signed by each of the parties and delivered to
VisionGlobal and Lone Peak; and (d) embodies the entire agreement and
understanding, superseding all prior agreements and understandings between Lone
Peak and VisionGlobal relating to the subject matter of this Agreement.
14.7 Notices. All notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given on the date of service if served personally on the party to whom notice is
to be given, or on the 3rd day after mailing if mailed to the party to whom
notice is to be given, by first class mail, registered or certified, postage
prepaid, and properly addressed as follows:
To Lone Peak at:
Lone Peak Research, Inc.
Attn: Jeffrey G. Ballif
112 West 1340 North
American Fork, Utah 84003
with a copy to:
David W. Slaughter, Esq.
Snow, Christensen & Martineau
10 Exchange Place, 11th Floor
P.O. Box 45000
Salt Lake City, Utah 84092
To VisionGlobal at:
Joseph W. Hipple III
VisionGlobal Corporation
44 Montgomery Street, Suite 500
San Francisco, CA 94104
with a copy to:
William R. Gray, Esq.
Parsons Behle & Latimer
201 South Main Street, Suite 1800
P.O. Box 45898
Salt Lake City, Utah 84145-0898
Any party may change its address for purposes of this paragraph by
giving the other parties written notice of the new address in the manner set
forth above.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by their duly authorized officers and their corporate
seals to be hereto affixed effective as of the date first written above.
Lone Peak Research, Inc.
a Utah corporation
By:
Jeffrey G. Ballif, President
Jeffrey G. Ballif, Individually
VisionGlobal Corp.
a Nevada corporation
By:
Martin Wotton, Chairman
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EXHIBIT (ii)
FORM OF EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT
VisionGlobal Corp. and
_______________________
This EMPLOYMENT AGREEMENT (this "Agreement"), effective as of
__________, 1999 (the "Effective Date"), is by and between VISIONGLOBAL CORP., a
Nevada corporation (the "Company") and ____________________ ("Employee").
In consideration of the mutual covenants and promises contained herein,
the parties hereto agree as follows:
1. Employment. The Company hereby employs Employee as the Company's
________________, and Employee hereby accepts such employment and agrees to
perform those duties and undertake the duties and responsibilities provided for
in this Agreement, as well as those responsibilities that are customarily
performed by others holding positions similar to that assigned to Employee in
similar businesses. Employee shall also serve as a member of the Company's Board
of Directors (the "Board"), if named or elected to such position and, at the
request of the Board, such other executive or board of director positions with
the Company's subsidiaries or affiliates as the board shall designate from time
to time.
2. Time Commitment - Best Efforts. Employee shall devote all of his
professional time and attention to the performance of his obligations under this
Agreement, and will at all times faithfully, industrially and to the best of his
ability, experience and talent, perform all of his obligations hereunder.
3. Term of Employment. The term of Employee's employment by the Company
shall commence on the Effective Date and shall continue for a period of ____ (_)
years from the Effective Date unless such employment is terminated by either
Party hereto in accordance with Paragraph 7 of this Agreement.
4. Compensation.
4.1 Salary. Until termination of Employee's employment hereunder, the
Company shall pay Employee a base salary of $_________ per year, payable at the
usual times as payment of compensation to the Company's senior employees.
Employee's base salary shall be reviewed no less frequently than once each year
and may be increased, but not decreased, as the Board may, at its discretion,
approve.
4.2 Bonus. For the period from the Effective Date through December 31,
1999 and for each subsequent twelve (12) month period during the term of this
Agreement, employee shall be eligible to earn performance bonuses as determined
by the Board or its compensation committee in its sole discretion. If earned,
such bonus amounts shall be paid as promptly as the Company's accounting and
payroll practices permit.
4.3 Stock Options. In connection with the execution of this Agreement,
the Company hereby grants to employee an option (the "Option") to acquire up to
a minimum of __________ shares of the Company's common stock. The Option shall
vest with respect to _________ shares on the first anniversary of the Effective
Date. The Option shall vest with respect to _________ shares on the second
anniversary of the Effective Date. The remainder of the Option shall vest with
respect to _________ shares on the third anniversary of the Effective Date and
the remaining __________ shares on the fourth anniversary of the Effective Date.
The Option is granted at $2.00 per share, which the Board believes to be the
fair market value of the Company's common stock as of the date of the Option
grant, and shall expire on ____________. The Option may be evidenced by the
Company's option grant form (as determined by time to time by the Board or its
compensation committee).
(a) Any non-vested portions of the Option shall terminate upon
the termination of this Agreement, unless the termination is by the
Company and not for Cause, in which case any non-vested portion of the
Option which would have vested on the next anniversary of the date of
the grant of the Option but for the termination of this Agreement shall
be deemed vested for all purposes hereunder.
(b) Any non-vested portions of the Option shall vest in full
upon the completion of a change of control. As used in this Section 4.3
b, a "change of control" shall mean any transaction or series of
transactions which result in the sale of all or substantially all of
the assets of the Company, a merger or consolidation of the Company
with or into another unaffiliated entity and pursuant to which the
Company is not the surviving entity, any acquisition by any person or
entity of more than 50% of the issued and outstanding stock of the
Company, or the acquisition by any person or entity of debt instruments
or equity securities of the Company which may, at any time, be
converted into 50% or more of the issued and outstanding stock of the
Company.
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4.4 Benefits. Employee shall be entitled to participate in the
Company's benefit plans, including but not limited to any health, retirement,
group life and other employee insurance plans if and when implemented by the
Company. Employee shall be entitled to ________ weeks of vacation annually.
5. Inventions and Proprietary Rights. As a condition of his employment,
Employee will sign, contemporaneously herewith, an Employee Confidentiality
Agreement, a copy of which is attached hereto as Exhibit 1. The terms of the
Employee Confidentiality Agreement shall survive the termination of this
Agreement for any reason.
6. Non-Competition.
6.1 Acknowledgement. Employee acknowledges that (i) the Company and/or
its affiliated organizations are engaged in a variety of business endeavors;
such as telecommunications, data transfer, video, IP Telephony, video
conferencing, use of wireless spectrum in all forms, and fiber/coax; including
the development of the "Project", as such term is defined in the Company's
business plan; (ii) the Company's business is conducted throughout the United
States and is expected to be conducted internationally; (iii) Employee's work
for the Company will give him access to trade secrets and confidential
information concerning the Company and its business, including, without
limitation, proprietary information; and (iv) the ability of the Company and its
affiliates to continue the business is likely to be materially jeopardized and
the value of the Company and its affiliates reduced if Employee competes with,
or assists other persons in competing, with the Company and/or its affiliates.
6.2 Non Competition and Non Solicitation Covenants. During the term of
this Agreement, and for a period of two (2) years after the termination of this
Agreement, Employee hereby agrees that he shall not do any of the following:
(a) Carry on any business or activity (whether directly or
indirectly, as a partner, shareholder, owner, principal, agent,
director, affiliate, employee, advisor or consultant, or in any other
capacity) which is competitive with the business as conducted by the
Company at the time of termination of Employee's employment. Ownership
of no more than 5% of the outstanding loading stock of the publicly
traded corporation shall not constitute a violation of this provision.
(b) Solicit or influence or attempt to influence any client,
customer or other person either directly or indirectly, to direct such
clients, customers or other persons purchase of the Company's products
and/or services away from the Company or to any person, firm,
corporation, institution or other entity other than the Company.
(c) Solicit for employment, attempt to employ, or assist any
other person or entity in employing or soliciting for employment, any
employee or representative of the Company, either for Employee or any
other person or entity.
(d) Unenforceability. If any court shall determine that the
duration, geographic limitations, subject or scope of any restriction
contained in this Paragraph 6 is unenforceable, it is the intention of
the parties that this Paragraph 6 shall not thereby be terminated but
shall be deemed amended to the extent required to make it valid and
enforceable, such amendment to apply only with respect to the operation
of this Paragraph 6 in the jurisdiction of the court that has made the
adjudication.
6.3 Survival. The terms of this Paragraph 6 shall survive the
termination of this Agreement.
7. Termination.
7.1 Salary Through Termination Date. Upon termination of Employee's
employment for any reason, Employee shall be entitled to all salary and bonus
earned through the date of termination.
7.2 "Cause". For purposes of this Agreement, "Cause" shall mean the
occurrence of any one of the following events:
(a) Employee's refusal to obey directions of the Board or
senior executive officers (so long as such directions do not involve
illegal, unethical or immoral acts).
(b) Employee's failure to perform his duties and
responsibilities with diligence.
(c) Employee's refusal to comply with the travel requirements
which from time to time may be a necessary part of his
responsibilities;
(d) Employee's action, or failure to act, in violation of any
provision of the Company's standard employee guidelines, including but
not limited to any policy concerning sexual harassment or substance
abuse, as such policies may be in effect from time to time, if such
violation of the Company's policy would generally result in the
termination of a Company employee;
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(e) Fraud or dishonesty by Employee, in the good faith opinion
of the Board of the Company; or
(f) Commission by Employee of a criminal offense that
constitutes a felony in the jurisdiction in which the offense is
committed.
7.3 Termination "Without Cause". If Employee is terminated "Without
Cause" by the Company under this Agreement, the Company shall continue to pay
Employee his base salary, less applicable withholdings, for an additional six
months after the date of termination of Employee's employment by the Company.
Such base salary shall be paid at the usual times for the payment of the
Company's senior employees (in addition to all other benefits or compensation
payable to Employee hereunder up to the date of the termination). Employee shall
also receive all other amounts that are owed to him under this Agreement as a
result of his activities prior to such termination.
7.4 Termination "With Cause". If Employee is terminated "With Cause" by
the Company, then Employee shall be entitled to no further payment, other than
those described in Paragraph 7.1 hereto.
8. Facilities and Expenses. The Company shall make available to
Employee office space, office equipment and furnishings in offices to be
arranged in, or in close proximity to, [San Francisco, California] or [Tucson,
Arizona]. The Company shall promptly reimburse Employee for all reasonable
expenses incurred in the performance of his duties hereunder, including expenses
for entertainment and travel, subject to Employee satisfying the Company's
reasonable requirements with respect to the approval, reporting and
documentation of such expenses.
9. Arbitration. In the event of any dispute or claim arising out of or
relating to this Agreement or the employment relationship between the Company
and Employee, including but not limited to any claims for breach of contract,
discrimination, harassment or wrongful termination, Employee and the Company
agree that all such disputes shall be fully and finally resolved by binding
arbitration administered by the American Arbitration Association in accordance
with its National Rules for the Resolution of Employment Disputes then in
effect; provided, however, that this arbitration provision will not apply to any
claims arising out of or relating to Paragraph 6 of this Agreement or Employee
Confidentiality Agreement attached hereto as Exhibit 1. Any arbitration will be
held in Utah before a single arbitrator.
10. Miscellaneous.
10.1 Withholding. All payments made to or for the benefit of Employee
under this Agreement shall be subject to withholdings for federal, state and
local taxes, FICA, and other withholdings required by applicable law.
10.2 Notices. For purposes of this Agreement, notices, approvals and
other communications provided for herein shall be in writing and shall be deemed
to have been duly given when delivered in person, by facsimile transmission, by
express courier, or by first class United States Mail, postage prepaid, return
receipt requested. Notices to the Company shall be sent to the attention of the
current President and Chief Executive Officer of the Company at its legally
registered address in Utah as shall be provided in writing to Employee in
accordance with this section. Notices to Employee shall be addressed to
Employee's most recent address as set forth in the personnel records of the
Company. Notices shall be effective upon receipt. Either party shall be entitled
to change the address at which notice is to be given by providing notice to the
other party of such change in the manner provided herein.
10.3 Integration. This Agreement, together with Employee
Confidentiality Agreement attached hereto as Exhibit 1 sets forth the entire
agreement of the parties with respect to the subject matter hereof, and
supersedes all prior agreements, whether written or oral. This Agreement may be
amended only by a writing signed by both parties hereto.
10.4 Successors and Assigns. This Agreement shall be binding upon, and
inure to the benefit of, the parties and their respective personal
representatives, successors and assigns.
10.5 Waiver. No waiver of any provision of this Agreement shall be
valid unless it is in writing and signed by the party against whom it is
charged.
10.6 Severability. The invalidity or unenforceability of any provision
of this Agreement shall not affect the other provisions hereof, and this
Agreement shall be construed as if such invalid or unenforceable provision were
omitted.
10.7 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Utah (without resort to the conflict
of law principles thereof).
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10.8 Attorneys' Fees. If any suit or other action is brought with
respect to the interpretation or enforcement of this Agreement, the prevailing
party shall be entitled to receive, among other remedies, reimbursement for its
costs and expenses, including but not limited to reasonable attorneys' fees.
EXECUTED as of the date first set forth above.
THE COMPANY:
VISIONGLOBAL CORP.
By:
Name:
Its:
EMPLOYEE:
_____________________
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EXHIBIT 1
EMPLOYEE CONFIDENTIALITY AGREEMENT
<PAGE>
EMPLOYEE CONFIDENTIALITY AGREEMENT
VISIONGLOBAL CORP. AND
This EMPLOYEE CONFIDENTIALITY AGREEMENT (this "Agreement"), effective as of
___________, 1999 (the "Effective Date"), is by and between VISIONGLOBAL CORP.,
a Nevada corporation (the "Company") and ("Employee").
Relationship of Trust and Confidence. Employee's employment by Company creates a
relationship of confidence and trust between Employee and Company with respect
to certain information applicable to the business of Company and its clients or
customers. Company possesses and will continue to possess information that has
commercial value and is treated by Company as confidential. Such information may
include information created, discovered or developed by Employee before and/or
during the period of or arising out of his or her employment by Company, and
whether before or after the date hereof. Such information may also include
information belonging to Company's clients, business partners, customers or
suppliers. All such information is hereinafter called "Confidential
Information," which term includes, without limitation, algorithms, discoveries,
developments, designs, improvements, inventions, blueprints, designs,
trademarks, information relating to copyrights, all material that is capable of
being copyrighted or trademarked by the Company, structures, software,
processes, computer programs, know-how, data, techniques, formulas, marketing
and business plans and outlines, strategies, budgets, forecasts, projections,
unpublished financial statements, costs, fee schedules, client and supplier
lists, client and prospective client databases, access codes and similar
security information and procedures, and all patents, copyrights, maskworks,
trade secrets and other proprietary rights thereto; provided, however, that the
term "Confidential Information" shall not include any of the foregoing that is
in the public domain other than as the result of a breach of an obligation of
confidentiality.
Possibility of Harm to the Company. Employee recognizes that any unauthorized
use or disclosure of Confidential Information would cause serious injury to
Company. Company's willingness to employ Employee depends upon his or her
commitment to protect Company's Confidential Information and to comply with this
Agreement. Therefore, Employee hereby agrees as follows.
Protection of the Confidential Information. During and after Employee's
employment, Employee shall hold the Confidential Information in confidence and
shall protect it with utmost care. Employee shall not disclose, copy, or permit
any unauthorized person to disclose or copy any of the Confidential Information,
except as may be necessary for the conduct of the Company's business. Employee
shall not use any of the Confidential Information except as necessary to perform
his or her duties as an employee of Company.
Third Parties. In the event that Employee has or has had access to any
Confidential Information belonging to any third party, including but not limited
to any of Employee's previous employers, Employee shall hold all such
Confidential Information in confidence and shall comply with the terms of any
and all agreements between Employee or Company and the third party with respect
to such Confidential Information.
Exceptions. This Agreement will not be interpreted to prevent the use or
disclosure of information that (i) is required by law to be disclosed, but only
to the extent that such disclosure is legally required, (ii) becomes a part of
the public knowledge other than by a breach of an obligation of confidentiality,
or (iii) is rightfully received from a third party and the Company is not
obligated to hold such information confidential.
Return of Confidential Information. Upon Company's request, and in any event
upon termination of Employee's employment for any reason, Employee shall
promptly return to Company all materials in his or her possession or control
that contain or represent Confidential Information, including but not limited to
documents, drawings, diagrams, flow charts, computer programs, memoranda, notes,
and every other medium, and all copies thereof.
Assignment of Inventions and Patent Rights. Employee will promptly disclose to
Company all Confidential Information, whether or not patentable or registrable
under patent, copyright, trademark or similar statutes, made or conceived or
reduced to practice or learned by Employee, either alone or jointly with others,
during the period of his or her employment that (i) at the time of conception or
reduction to practice are related to the actual or demonstrably anticipated
business of Company, (ii) result from tasks performed by Employee for Company,
or (iii) are developed on any amount of Company's time or result from the use of
premises or property (including computer systems) owned, leased, or contracted
for by Company (collectively "Inventions"). All Inventions shall at all times
and for all purposes be the sole property of Company. Employee hereby assigns
and agrees to assign any rights he or she may have or acquire in any
Confidential Information or Inventions and agrees to execute such instruments of
assignment, acknowledgment or other instruments that the Company reasonably
requests from time to time.
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List of Inventions. Attached as Attachment A is a list of all Inventions and
information created, discovered, or developed by Employee whether or not
patentable or registrable under patent, copyright, trademark or similar
statutes, made or conceived or reduced to practice or learned by Employee,
either alone or jointly with others, including any Inventions, relating in any
way to Company's business or demonstrably anticipated research and development
that were made by Employee prior to his or her employment with Company that
Employee claims to own that are not subject to this Agreement (the "Employee
Inventions"). Employee represents that Attachment A is complete and contains no
confidential information. Employee understands that he or she has no rights in
any Employee Inventions other than those listed on Attachment A. If there is
nothing identified on Attachment A or if "none" is indicated on Attachment A,
employee represents that he or she has made no Employee Inventions as of the
time of signing this Agreement.
Responsibilities of Employee. Employee shall (i) treat all information with
respect to Inventions as Confidential Information within the meaning of this
Agreement; (ii) keep complete and accurate records of the Inventions, which
records will be the property of Company; (iii) testify in any proceedings or
litigation related to the Inventions; and (iv) in case Company will desire to
keep secret any Inventions or will for any reason decide not to have letters
patent applied for thereon, refrain from disclosing the Invention and from
applying from letters patent thereon.
Assistance of Company. Employee shall assist Company in every way deemed
necessary or desirable by Company (but at Company's expense) to obtain and
enforce patents, copyrights, trademarks and other rights and protections
relating to any Confidential Information and Inventions in any and all
countries, and to that end Employee will execute all documents for use in
obtaining and enforcing such patents, copyrights, trademarks and other rights
and protections as Company may desire, together with any assignments thereof to
Company or persons designated by it. If Company is unable for any reason to
secure Employee's signature to any document required to apply for or execute any
patent, copyright, maskwork or other applications with respect to any Inventions
(including improvements, renewals, extensions, continuations, divisions or
continuations in part thereof), Employee hereby irrevocably designates Company
and its duly authorized officers and agents as Employee's agents and
attorneys-in-fact and on Employee's behalf to execute and file any such
application and to do all other lawfully permitted acts to further the
prosecution and issuance of patents, copyrights, maskworks or other rights
thereon with the same legal force and effect as if executed by Employee.
Employee's obligation to assist Company shall continue beyond the termination of
his or her employment, but Company shall compensate employee at a reasonable
rate after his or her termination for time actually spent by Employee at
Company's request on such assistance.
No Conflicts With Prior Obligations. Employee represents and warrants that his
or her employment by Company and his or her performance of this Agreement will
not conflict with any obligations that Employee may have with third parties.
Without limiting the foregoing, Employee agrees that he or she will not disclose
to Company or use in Company's behalf any confidential or proprietary
information belonging to a third party, unless the third party has consented to
the disclosure or use of the information.
Equitable Remedies. Employee acknowledges that breach of this Agreement would
cause Company to suffer irreparable harm for which monetary damages would be
inadequate compensation. Employee agrees that Company will be entitled to an
injunction restraining any actual or threatened breach of this Agreement, or
specific performance, if applicable, in addition to any monetary damages.
Ethical Behavior. Employee acknowledges that it is the Company's policy to
comply with all applicable laws and to conduct its business in accordance with
the highest ethical standards. Employee agrees to comply with this policy in all
aspects and matters relating to Employee's employment by the Company. Employee
agrees not to break or contravene any law, civil or criminal, in performing
Employee's obligations or in carrying out Employee's duties as an employee of
the Company. Employee agrees not to place himself in any position that would
create a conflict of interest so far as Employee's duties as an employee of the
Company are concerned. Employee agrees to disclose to the Company immediately
any conflicts of interest or potential conflicts of interest relating to
Employee's employment by the Company. Without the prior written consent of the
Company, Employee agrees to not accept gifts or gratuitous or below-market-price
services, products, tickets, passes or other remuneration from any person or
entity that would normally be judged as influencing Employee's judgment or
activities as an employee of the Company, provided that Employee may accept
gifts on rare occasions that have a total value of less than $150, of which any
amount exceeding shall have approval of the Company.
Waiver and Amendment. This Agreement may be amended only by a writing signed by
both parties hereto. No oral waiver, amendment or modification of this Agreement
shall be effective under any circumstances. The waiver by Company of a breach of
any provision of this Agreement shall not operate or be construed as a waiver of
any other or subsequent breach of this Agreement by Employee.
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Term of Agreement. This Agreement will remain in force during Employee's
employment and will continue thereafter until all Confidential Information
acquired by Employee becomes part of the public knowledge other than through a
violation of this Agreement.
I HAVE READ THIS ENTIRE AGREEMENT AND FULLY UNDERSTAND THE LIMITATIONS THAT IT
IMPOSES UPON ME.
EMPLOYEE:
- ---------------------------------
ACKNOWLEDGEMENT OF
VISIONGLOBAL CORP.:
- ----------------------------
By:_________________________
Title:_______________________
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ATTACHMENT A
The following is a list of all Inventions made, conceived, developed or reduced
to practice by Employee prior to the date of this Agreement:
