EXHIBIT 10.1
AGREEMENT AND WAIVER
This Agreement and Waiver is entered into as of July 13, 2005, by and among
Diamond I, Inc., a Nevada corporation ("Diamond I"), and Xxxxx X. Xxxxx, Xxxx
Xxxxxx, Xxxx Xxxxxx, Xxxxx Xxxxxx and Xxxxxxx X. Xxxxxx, the former shareholders
of Diamond I Technologies, Inc., a Nevada corporation (such persons being
referred to collectively herein as the "Shareholders").
WHEREAS, Diamond I and the Shareholders are party to an Agreement and Plan of
Reorganization, dated as of January 7, 2005, and amended as of January 17, 2005
(the "Reorganization Agreement"), pursuant to which Diamond I acquired Diamond I
Technologies, Inc., a Nevada corporation ("DiTech"); and
WHEREAS, Diamond I and the Shareholders have, since Diamond I's acquisition of
DiTech, worked diligently to fulfill their respective obligations under the
Reorganization Agreement; and
WHEREAS, Diamond I is obligated under the Reorganization Agreement to provide
certain levels of capital during the next year, failing which could cause the
ownership of DiTech to revert to the Shareholders, which obligation is
burdensome and contrary to the best interests of Diamond I and its shareholders;
and
WHEREAS, the Shareholders, and each of them, desire to waive their rights to
cause the reversion of ownership of DiTech from Diamond I to them; and
WHEREAS, Diamond I and the Shareholders desire to enter into this Agreement and
Waiver, in an effort to improve Diamond I's public perception; and
NOW, THEREFORE, Diamond I and the Shareholders hereby agree as follows:
1. WAIVER BY SHAREHOLDERS
In consideration of the shares of Diamond I common stock to be issued to the
Shareholders pursuant to Section 2 hereof, the Shareholders, and each of them,
hereby waive any and all current and future rights arising under Sections 2.7(a)
and 2.7(b) of the Reorganization Agreement; provided, however, that no capital
that may be provided by Diamond I to DiTech shall be charged against the
profitability of the Target System (as that term is defined in the
Reorganization Agreement) for purposes of determining the vesting and issuance
of the Operational Shares (as that term is defined in the Reorganization
Agreement) pursuant to Section 1.6(b)(iii) of the Reorganization Agreement.
2. ISSUANCE OF SHARES OF DIAMOND I COMMON STOCK
In consideration of the waiver of the Shareholders contained in Section 1
hereof, Diamond I shall issue to the shareholders a total of 1,000,000 shares of
its $.001 par value common stock, as follows: Xxxxx X. Xxxxx, 250,000 shares;
Xxxx Xxxxxx, 200,000 shares; Xxxx Xxxxxx, 200,000 shares; Xxxxx Xxxxxx, 200,000
shares; and Xxxxxxx X. Xxxxxx, 150,000 shares.
3. REPRESENTATIONS OF DIAMOND I
Diamond I has all necessary corporate power and authority to enter into this
Agreement and Waiver and to carry out its obligations hereunder. The execution
and delivery of this Agreement and Waiver by Diamond I and the consummation by
Diamond I of the transactions contemplated hereby have been duly authorized by
all necessary corporate action. This Agreement and Waiver has been duly executed
and delivered by Diamond I and constitutes a legal, valid and binding obligation
of Diamond I.
4. REPRESENTATIONS OF THE SHAREHOLDERS
The Shareholders, and each of them, hereby represent and warrant to Diamond I
that:
A. the Shareholders, and each of them, are under no legal disability with
respect to entering into this Agreement and Waiver;
B. the Shareholders, and each of them, hereby represent and warrant that they
have reviewed all of Diamond I's filings with the Securities and Exchange
Commission, to date, and, with respect to such information, the Shareholders,
and each of them, further represent and warrant that they have had an
opportunity to ask questions of, and to receive answers from, the officers of
Diamond I;
C. the Shareholders, and each of them, represent and warrant to Diamond I that
the shares of Diamond I common stock being issued to them pursuant to this
Agreement and Waiver are being acquired for their own accounts and for
investment and not with a view to the public resale or distribution of such
shares and further acknowledge that the shares being issued have not been
registered under the Securities Act or any state securities law and are
"restricted securities", as that term is defined in Rule 144 promulgated by the
SEC, and must be held indefinitely, unless they are subsequently registered or
an exemption from such registration is available; and
D. the Shareholders, and each of them, consent to the placement of a legend
restricting future transfer on the share certificates representing the Diamond I
common stock delivered hereunder, which legend shall be in the following, or
similar, form: "THE STOCK REPRESENTED BY THIS CERTIFICATE HAS BEEN ISSUED IN
RELIANCE UPON THE EXEMPTION FROM REGISTRATION AFFORDED BY SECTION 4(2) OF THE
SECURITIES ACT OF 1933, AS AMENDED. THE STOCK MAY NOT BE TRANSFERRED WITHOUT
REGISTRATION EXCEPT IN TRANSACTIONS EXEMPT FROM SUCH REGISTRATION."
5. MISCELLANEOUS
A. Notices. All notices and other communications given or made pursuant hereto
shall be in writing and shall be deemed to have been duly given or made as of
the date delivered or mailed if delivered personally or mailed by registered or
certified mail (postage prepaid, return receipt requested) to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice, except that notices of changes of address shall be effective
upon receipt):
(1) If to Parent or Acquiror: Diamond I, Inc., 0000 Xxxxxx Xxxxxx, Xxxxx 000,
Xxxxx Xxxxx, Xxxxxxxxx 00000
(2) If to the Shareholders: Messrs. Xxxxx, Xxxxxx and Xxxxxx, 000 Xxxxx Xxxx,
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Xxxxx Xxxxxx ,0000 Deep Canyon Drive, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
B. Arbitration. Any dispute arising under this Agreement and Waiver shall be
resolved by arbitration in Dallas, Texas, under the Rules of the American
Arbitration Association, as then in effect. The determination and award of the
arbitrator, which aware may include punitive damages, shall be final and binding
on the parties and may be entered as a judgment in any court of competent
jurisdiction. It is expressly agreed that the arbitrators, as part of their
award, can award attorneys' fees to the prevailing party.
C. Binding Effect; Benefit. This Agreement and Waiver shall inure to the benefit
of and be binding upon the parties hereto and their successors and permitted
assigns. Nothing in this Agreement and Waiver, express or implied, is intended
to confer on any person other than the parties hereto and their respective
successors and permitted assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement and Waiver, including, without
limitation, third party beneficiary rights.
D. Severability. If any term or other provision of this Agreement and Waiver is
invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement and Waiver shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement and Waiver so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that transactions contemplated hereby are fulfilled to the extent
possible.
E. Entire Agreement. This Agreement and Waiver constitutes the entire agreement
and supersedes all prior agreements and undertakings, both oral and written,
among the parties, or any of them, with respect to the subject matter hereof
and, except as otherwise expressly provided herein, are not intended to confer
upon any other person any rights or remedies hereunder.
F. Assignability. This Agreement and Waiver shall not be assignable by either
party or by operation of law, except with the express written consent of each
other party.
G. Governing Law. This Agreement and Waiver shall be governed by, and construed
in accordance with, the laws of the State of Delaware applicable to contracts
executed in and to be performed in such State.
DIAMOND I: SHAREHOLDERS:
DIAMOND I, INC. /s/ XXXXX X. XXXXX
By: /s/ XXXXX XXXXXX Xxxxx X. Xxxxx, individually
Xxxxx Xxxxxx, President /s/ XXXX XXXXXX
Xxxx Xxxxxx, individually
/s/ XXXX XXXXXX
Xxxx Xxxxxx, individually
/s/ XXXXX XXXXXX
Xxxxx Xxxxxx, individually
/s/ XXXXXXX X. XXXXXX
Xxxxxxx X. Xxxxxx, individually
