Exhibit 10.1
AMENDED AND RESTATED INVESTORS
QUESTIONNAIRE AND SUBSCRIPTION AGREEMENT
This Amended and Restated Investors Questionnaire and Subscription
Agreement (the "Agreement"), dated as of November 1, 2002, is entered into by
and between US Data Authority, Inc., a Florida corporation (the "Company"),
Centro Inmobiliario RyC, S.L., a limited liability company organized under the
laws of the Kingdom of Spain, MAPET International Foundation, Inc., a Florida
non-profit corporation, Frontier Star, S.L., a limited liability company
organized under the laws of the Kingdom of Spain, Inverfape, S.A., a limited
liability company organized under the laws of the Dominican Republic, Xxxxx
Xxxxxx, X.X., a limited liability company organized under the laws of the
Kingdom of Spain (collectively, the "Old Investor Group"), BEHEER-EN
BELEGGINSMAATSCHAPPIJ SELMOK BV, a limited liability company formed under the
laws of the Netherlands and GOLDEN WORLDWIDE BUSINESS CORPORATION, a limited
liability company formed under the laws of the British Virgin Islands
(collectively, the "New Investor Group").
RECITALS
On February 28, 2002, the Company and the Old Investor Group entered into
an Investors Questionnaire and Subscription Agreement (the "Subscription
Agreement") whereby the Old Investor Group was to purchase an aggregate of
10,000,000 shares of common stock of the Company, par value $.02 per share
("Common Stock"), at a price equal to $0.16 per share of Common Stock, and
20,000,000 shares of Class A Convertible Preferred Stock, par value $1.00 per
share ("Preferred Stock"), at a price equal to $0.84 per share, for a total
purchase price of $18,400,000.
On April 17, 2002, the Company and the Old Investor Group entered into
Addendum No. 1 to the Subscription Agreement to clarify, among other things,
where the first disbursement of the funds would be deposited and the mechanics
for drawing down on such funds by the Company.
On April 29, 2002, the Company received $500,000 of the first disbursement
due under the Subscription Agreement, as amended, with the remaining $500,000
held in an attorney escrow account and disbursed on an as needed basis.
On August 1, 2002, the Company and the Old Investor Group entered into an
Agreement to further amend the Subscription Agreement, as amended (the "Amended
Subscription Agreement"), to, among other things, (i) increase the aggregate
number of shares of Common Stock to be purchased by the Old Investor Group from
10,000,000 to 20,000,000, (ii) to decrease the share price of the Common Stock
to be paid by the Old Investor Group from $0.16 to $0.10, (iii) to decrease the
share price of the Preferred Stock to be paid by the Old Investor Group from
$0.84 to $0.345, and (iv) to decrease the
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aggregate purchase price for the shares of Common Stock and Preferred Stock to
be paid by the Old Investor Group from $18,400,000 to $8,900,000.
As of the date of this Agreement, the Old Investor Group has funded
$1,000,000 (the "Funded Amounts") of the $8,900,000 required to be funded under
the Amended Subscription Agreement, with $7,900,000 (the "Unfunded Amounts")
remaining to be funded pursuant to the terms of the Amended Subscription
Agreement. Each member of the Old Investor Group wishes to assign its respective
rights and obligations with respect to the Unfunded Amounts to the New Investor
Group in accordance with the terms of this Agreement. The New Investor Group
wishes to collectively assume the aggregate obligations of the Old Investor
Group for the Unfunded Amounts pursuant to the terms of the Amended Subscription
Agreement. Upon the funding of $1,000,000 of the Unfunded Amounts (the "Minimum
Amount") by the New Investor Group to purchase shares of the Company and to show
its good faith intention to fund the remaining Unfunded Amounts, the Company
shall release the Old Investor Group of its obligations to fund the Unfunded
Amounts, all in accordance with the terms of this Agreement. This Agreement
shall evidence the intent of the parties going forward and clarify the
obligations under the Amended Subscription Agreement.
The above recitals are true and correct, are hereby confirmed and
ratified, and are incorporated into the body of the Agreement as if fully set
forth herein.
ARTICLE ONE
Assignment of Rights, Assumption of Certain
Liabilities and Release of Certain Obligations
Section 1.01. Assignment of Rights by Old Investor Group; Continuing Obligations
of Old Investor Group.
Each member of the Old Investor Group hereby assigns, transfers and sets
over unto the New Investor Group all of its remaining rights to purchase the
number of shares of Common Stock and Preferred Stock equal to the Unfunded
Amounts in accordance with the percentage of ownership set forth in Section 2.02
of this Agreement.
Each member of the Old Investor Group agrees and acknowledges that this
Agreement constitutes an assignment of its rights with respect to the Unfunded
Amounts. No inference shall be drawn from the making and execution of this
Agreement that any member of the Old Investor Group intended to assign or
transfer any other rights relative to the Company or otherwise, except as
specifically set forth in this Agreement.
Each member of the Old Investor Group hereby represents to each member of
the New Investor Group that it has the right to transfer the rights being
transferred pursuant hereto to each member of the New Investor Group.
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Each member of the Old Investor Group hereby acknowledges that prior to
the funding of the Minimum Amount, in the event that any member of the New
Investor Group fails to comply with any of the terms of this Agreement, each
member of the Old Investor Group shall be jointly and severally liable and
obligated to perform such obligations of the member of the New Investor Group.
Upon completion of the funding of the Minimum Amount, each member of the Old
Investor Group shall be released pursuant to Section 1.03 of this Agreement.
Section 1.02. Assumption of Obligations by New Investor Group.
Each member of the New Investor Group hereby accepts the assignment made
by each of the Old Investor Group pursuant to Section 1.01 of this Agreement,
and in consideration of such assignment, hereby assumes and agrees to perform
and observe all the covenants, agreements and obligations on the part of each
member of the Old Investor Group which were to be performed and observed by the
Old Investor Group under the Amended Subscription Agreement.
Section 1.03. Mutual Release.
In connection with the assignment by the Old Investor Group and the
assumption by the New Investor Group, and in consideration of the Old Investor
Group and the Company's execution of this Agreement and the performance of their
obligations hereunder, each member of the Old Investor Group and the Company
agree as follows:
(a) Each member of the Old Investor Group on its own behalf and on
behalf of its representatives, heirs, administrators, executors, and
assigns, on behalf of any other persons or entities claiming by,
through, or under any of the members of the Old Investor Group does
hereby fully release, acquit and forever discharge the Company, and
their subsidiaries or affiliates, and their respective employees,
officers, directors, member, trustees, committee-members, managers,
contractors, consultants, agents, representatives, attorneys,
successors, and assigns (the "Company Persons"), and, upon the
receipt by the Company of the Minimum Amount from the New Investor
Group, the Company, on its own behalf and on behalf of its
subsidiaries or affiliates does hereby fully release, acquit and
forever discharge each member of the Old Investor Group (the "Old
Investor Persons"), from and against any and all rights, benefits,
payments, claims, demands, causes of action, suits, debts, accounts,
controversies, agreements, promises, damages, judgments, and/or
liabilities whatsoever, in law or equity, of any and every
character, kind and nature whatsoever, for personal injury, property
damage or economic loss, whether known or unknown, contingent or
fixed, either in or arising out of the law of contracts, torts, or
under statutory law, or otherwise. This mutual release is to be
broadly construed and shall extend to and extinguish any and all
claims, demands or causes of action of every kind or nature
whatsoever, known or unknown, suspected or unsuspected, which each
member of the Old Investor Group or the Company has or hereafter
can, shall, or may have, in
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such party's own right or in a representative capacity, for, upon or
by reason of any matter, cause or thing whatsoever from the
beginning of the world to the date of receipt by the Company of the
Minimum Amount from the New Investor Group, including without
limitation of the generality hereof, any past, present or future
claims, matters or causes of action that such party has or may
hereafter have, including without limitation any claims under the
Amended Subscription Agreement, any claims relating to or arising in
respect of any and all prior discussions, representations,
understandings, or agreements between an Old Investor Person and a
Company Person contemporaneously or prior to the date of receipt by
the Company of the Minimum Amount from the New Investor Group and
any claims relating to or arising in respect of ownership of equity
and/or debt securities of the Company by any member of the Old
Investor Group at any time contemporaneously or prior to the date of
receipt by the Company of the Minimum Amount from the New Investor
Group. This mutual release does not apply with respect to, and none
of the Company or any member of the Old Investor Group, waives any
rights or claims arising out of or arising from, any willful
misconduct or fraudulent act by a Company Person or a member of the
Old Investor Group, as the case may be, which willful misconduct or
fraudulent act was not known to any member of the Old Investor Group
(in the case of acts by a Company Person), or not known to the chief
executive officer, president or comptroller of the Company (in the
case of acts by an Old Group Investor Person) as of the date of this
Agreement.
(b) It is expressly agreed that upon the date of this Agreement, no
future disputes between any of the Old Investor Persons and any of
the Company Persons, whether under this Agreement or otherwise,
shall in any way affect the enforceability of the release granted
above.
ARTICLE TWO. Shares to be Purchased, Purchase Price,
Percentage of Ownership and Terms
Section 2.01. Shares to be Purchased and Purchase Price
The New Investor Group shall and hereby does agree to purchase and the
Company shall sell, in the aggregate, (i) 9,532,842 shares of Common Stock of
the Company, and (ii) 20,111,495 shares of Class A Convertible Preferred Stock
(collectively, the "Shares"), for an aggregate purchase price of $7,900,000 (the
"Proceeds") subject to the terms and conditions of this Agreement.
In accordance with the assumption of the rights and obligations by the New
Investor Group in Article One above, the New Investor Group has agreed to accept
a reduction in the number of Class A Convertible Preferred Stock (the "Preferred
Shares") that are to be issued to the New Investor Group, of 23,913 Preferred
Shares, due to an accounting adjustment equal to $8,250.00 in connection with
the first disbursement by the Old Investor Group.
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Section 2.02. Percentage of Ownership.
Each member of the New Investor Group shall purchase a number of the
Shares based upon the following percentages:
BEHEER-EN
BELEGGINSMAATSCHAPPIJ
SELMOK BV 50%
GOLDEN WORLDWIDE
BUSINESS CORPORATION 50%
Section 2.03. Disbursement of Proceeds and Shares.
The first disbursement by the New Investor Group of $1,000,000 to purchase
9,532,842 shares of Common Stock and 111,495 shares of Class A Convertible
Preferred Stock, and the sale of the corresponding shares by the Company, shall
be due immediately upon execution of this Agreement.
The New Investor Group, upon receipt of a Distribution Notice (as defined
in Exhibit B attached hereto) from the Committee (as defined below), shall make
such disbursement of the Proceeds within five (5) business days to the Escrow
Agent (defined below) in accordance with the provisions set forth in Section
2.04. Payment of any portion of the Proceeds shall be made directly into Account
No. 0909021930 (the "Escrow Account") maintained by Xxxxxxx X. Xxxxx, III, Esq.
(the "Escrow Agent") pursuant to an Escrow Agreement, a copy of which is
attached hereto as Exhibit A.
Section 2.04. Balance of Shares and Investment Distribution Committee.
An investment distribution committee (the "Committee") shall be
established consisting of three individuals: (i) the CEO or President of the
Company, (ii) the Controller of the Company and (iii) an authorized
representative of the New Investor Group. All requests for disbursements by the
Company shall be directed to the Committee and handled pursuant to the Committee
Guidelines, attached hereto as Exhibit B. The Committee will be responsible for
the approval of each request for a disbursement to be made to Company for the
balance of the Proceeds under this Agreement.
Notwithstanding the foregoing, requests for funding relating to the Cisco
Systems Capital Master Agreement to Lease Equipment, dated June 30, 2000 and the
outstanding
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debt owed to the Internal Revenue Service for payroll taxes shall be accepted
directly from the President and Chief Executive Officer of the Company and by
the Board of Directors rather than from the Committee with no other changes in
the mechanics of the request. It is acknowledged by the New Investor Group that
requests relating to these specific obligations are time sensitive and shall be
handled in an expeditious manner.
Further, each member of the New Investor Group acknowledges that the
issuance of the 9,532,842 shares of Common Stock will deplete the Company's
treasury stock. It is also acknowledged, if there is a mathematical or other
human error and the number of shares in the treasury, authorized but not issued,
is not equal to the number of shares to be issued to each member of the New
Investor Group, each member of the New Investor Group agrees to accept any
outstanding balance of shares of Common Stock or Preferred Stock, as may be
applicable, due to such member on the date when such shares are next authorized
by the shareholders of the Company. Such date shall not to be later than four
(4) months from the date of this Agreement.
All rights of the New Investor Group to purchase the balance of the Shares
shall be contingent on the New Investor Group's funding of an aggregate of
$4,000,000 of the Unfunded Amounts (the "Target Amount") no later than August 1,
2003. If the Target Amount is not funded by the New Investor Group by August 1,
2003, pursuant requests from the Committee in accordance with the Committee
Guidelines, all rights of the New Investor Group to purchase the Shares shall
terminate.
All rights of the Old Investor Group to purchase Shares of the Company
terminate upon the release of the Old Investor Group pursuant to Section 1.03.
Section 2.05. Issuance of Shares.
The Company shall reserve for issuance under this Agreement, a number of
shares of Preferred Stock to enable the Company to issue the Shares as soon as
the increase in the authorized number of shares of Preferred Stock is authorized
by the shareholders of the Company. Such date not to be later than four (4)
months from the date of this Agreement.
In connection with the shareholder approval to increase the number of
authorized shares of Common Stock or Preferred Stock, each member of the New
Investor Group shall and hereby does agree to vote at a meeting of shareholders
of the Company in favor of approving the requisite increase in the number of
authorized shares of Common Stock and Preferred Stock.
Upon receipt of a disbursement of Proceeds into the operating account of
the Company from the Escrow Account and becoming fully available to the Company,
the Company shall, within two (2) business days, instruct its transfer agent,
StockTrans, Inc., to issue stock certificates evidencing the corresponding
number of Shares to each member of the New Investor Group.
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Section 2.06. Amendment of Terms of Class A Preferred.
The Company shall amend its Amended and Restated Articles of Incorporation
as soon as reasonably practicable after the date of this Agreement to modify the
automatic conversion period for each share of Class A Convertible Preferred
Stock issued after December 31, 2001 to February 15, 2007.
Section 2.07. Directors.
Any directors originally designated by the Old Investor Group, and
currently serving on the Board of Directors of the Company (the "Board") as of
the date of this Agreement, shall remain as members of the Board until such
director's successor shall have been elected or qualified or until his/her
earlier death, resignation or removal.
The Old Investor Group designees were: Xxxxx Xxxxx, Xxxxxxx X. Xxxxx, III,
Esq., Xxxxxx Xxxxxx, Xxxx Xxxxx and Xxxx Xxxxxxx. Xxxx Xxxxx and Xxxx Xxxxxxx
resigned at a special meeting of the Board on October 21, 2002.
Upon receipt of at least $2,000,000 in collective investment from the New
Investor Group and performance of the obligations of each member of the New
Investor Group, the New Investor Group shall be entitled to have four (4)
designated directors on the Company's Board of Directors. Prior to the date of
this Agreement, the Old Investor Group had designated three (3) of the seven (7)
directors currently serving on the Board. The New Investor Group hereby agrees
to accept the Old Investor Group designees that are currently serving on the
Board as New Investor Group designees.
In the event that the New Investor Group fails to disburse any Proceeds
upon request by the Committee and in accordance with the terms of the Committee
Guidelines, the parties hereto agree that the Board shall immediately remove one
(1) of the New Investor Group Board designees. In the event that a member of the
New Investor Group fails to disburse any Proceeds upon request by the Committee
and in accordance with the terms of the Committee Guidelines and thereafter the
members of the Old Investor Group do not comply with their obligations pursuant
to Section 1.01, the parties hereto agree that the Board shall immediately
remove all members of the Board designated by the New Investor Group or the Old
Investor Group, as the case may be.
ARTICLE THREE. Disclosure Information
Section 3.01. Receipt of Information.
Each member of the New Investor Group hereby acknowledges that it has
received a copy of (a) the Company's Annual Report on Form 10-KSB for the fiscal
year ended December 31, 2001, (b) the Company's Quarterly Reports on Form 10-QSB
for
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the quarters ended March 31, 2002 and June 30, 2002 and (c) the Company's
Current Reports on Form 8-K dated May 13, 2002 and August 20 (the "Disclosed
Information").
Section 3.02. Availability of Information.
Each member of the New Investor Group hereby acknowledges that the Company
has made available to it and its principals, employees and agents the
opportunity to ask questions of, and receive answers from, the Company and any
other person or entity acting on its behalf, concerning the contents of the
Disclosed Information.
ARTICLE FOUR. Representations and Warranties of the
Members of the New Investor Group
Each member of the New Investment Group represents and warrants to the
Company (and understands that the Company is relying upon the accuracy and
completeness of such representations and warranties in connection with the
availability of an exemption for the offer and sale of the Shares from the
registration requirements of the applicable federal and state securities laws)
the following:
Section 4.01. The Shares are Restricted Securities.
Each member of the New Investor Group understands that none of the Shares
have been registered under the Securities Act of 1933, as amended (the "Act"),
or any state securities laws (the "State Acts").
Each member of the New Investor Group understands that it cannot sell or
otherwise dispose of any of the Shares unless the Shares are registered under
the Act or the applicable State Acts or exemptions therefrom are available, and,
consequently, that each member of the New Investor Group must bear the economic
risk of the investment for an indefinite period of time.
Each member of the New Investor Group understands that the Company will
restrict the transfer of the Shares in accordance with the foregoing
representations.
Section 4.02. Legend.
Each member of the New Investor Group agrees that any certificate
representing the Shares will contain and be endorsed with the following, or a
substantially equivalent, legend:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended
(the "1933 Act"), and said shares cannot be sold,
transferred, disposed of, pledged or hypothecated UNLESS
registered with the Securities and Exchange Commission,
sold in compliance with Rule 144 under the 1933 Act, or, if
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in the opinion of Company counsel, an exemption from the
registration requirements is in fact applicable to said
shares."
Section 4.03. "Accredited Investor" Status; Accuracy of Information.
Each member of the New Investor Group is an "Accredited Investor" as such
term is defined in Rule 501(a) of the Act.
All information that each member of the New Investor Group has provided to
the Company concerning its financial position and knowledge of financial
business matters is correct and complete as of the date of this Agreement, and
if there should be any material change in such information prior to acceptance
of this Agreement by the Company, each member of the New Investor Group will
immediately provide the Company with such information.
Section 4.04. Good Standing.
Each member of the New Investor Group has been duly incorporated and is
validly existing under the laws of the jurisdiction under which it is
incorporated, has the corporate power and authority to enter into and perform
its obligations under, or as contemplated under, this Agreement.
Section 4.05. Authorization of Agreement.
This Agreement has been duly authorized, executed and delivered by each
member of the New Investor Group.
ARTICLE FIVE. Representations and Warranties of the Company
Section 5.01. Good Standing.
The Company has been duly incorporated and is validly existing under the
laws of the state of Florida, has the corporate power and authority to own,
lease and operate its properties and to conduct its business and to enter into
and perform its obligations under, or as contemplated under this Agreement.
Section 5.02. Authorization.
This Agreement has been duly authorized, executed and delivered by the
Company.
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ARTICLE SIX. Representations of each Member of
the Old Investor Group
Section 6.01. Good Standing.
Each member of the Old Investor Group has been duly incorporated and is
validly existing under the laws of the jurisdiction under which it is
incorporated, has the corporate power and authority to enter into and perform
its obligations under, or as contemplated under this Agreement.
Section 6.02. Authorization.
This Agreement has been duly authorized, executed and delivered by each
member of the Old Investor Group.
Section 6.03. Other Representations.
Each member of the Old Investor Group reaffirms that: (i) it received the
information more fully described in Section I the Subscription Agreement entered
into on February 28, 2002, (ii) that that the Company has made available to it
and its principals, employees and agents the opportunity to ask questions of,
and receive answers from, the Company and any other person or entity acting on
its behalf, concerning the contents of the Company information described in (i)
above, and (iii) that the representations and warranties that it made pursuant
to Section I. C. 1, 2, 3, 4 and 5 of the Subscription Agreement remain true and
correct as of the date of this Agreement.
ARTICLE SEVEN. INDEMNIFICATION
Section 7.01. Indemnification.
Each member of the New Investor Group hereby agrees to pay, and shall
indemnify, defend, protect, save and hold forever harmless each member of the
Old Investor Group and all directors, officers, employees, agents, successors
and assigns of each member of the Old Investor Group from and against, any and
all claims, demands, suits, causes of action, controversies, liabilities, costs,
expenses and losses, including, without limitation, court costs, expert witness
fees and reasonable attorneys, fees and expenses, which any member of the Old
Investor Group, or any of them, may suffer, incur or sustain, or for which any
member of the Old Investor Group, or any of them, may become liable or
obligated, by reason of or in connection with the failure by any member of the
New Investor Group to perform and observe, or the breach or violation by any
member of the New Investor Group of, any of the covenants, agreements,
conditions and obligations by any member of the New Investor Group to be
performed, and observed under and pursuant to this Agreement.
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Each member of the Old Investor Group hereby agrees to pay, and shall
indemnify, defend, protect, save and hold forever harmless each member of the
New Investor Group, and all directors, officers, employees, agents, successors
and assigns of each member of the New Investor Group from and against, any and
all claims, demands, suits, causes of action, controversies, liabilities, costs,
expenses and losses, including, without limitation, court costs, expert witness
fees and reasonable attorneys, fees and expenses, which any member of the New
Investor Group, or any of them, may suffer, incur or sustain, or for which any
member of the New Investor Group, or any of them may become liable or obligated,
by reason of or in connection with the failure by any member of the Old Investor
Group or any affiliate of any member of the Old Investor Group to perform and
observe, or the breach or violation by any member of the Old Investor Group or
any affiliate of any member of the Old Investor Group of, any of the covenants,
agreements, conditions and obligations by any member of the Old Investor Group
or any affiliate of any member of the Old Investor Group under and pursuant to
the Amended Subscription Agreement and prior to the date of this Agreement.
Each member of the Old and New Investor Group have been given the
opportunity to conduct and have conducted all investigations of the Company and
its affairs they have found necessary or appropriate in connection with their
proposed investment in the Company. Accordingly, each member of the Old and New
Investor Group (the "Releasing Parties") shall and hereby do release and promise
not to xxx the current directors, officers, employees and/or agents of the
Company (the "Released Parties") from and against any and all claims the
Releasing Parties may have with respect to disclosures made or alleged either
(i) to have been made or (ii) not to have been made, but which should have been
made, by the Released Parties to the Releasing Parties prior to the date of this
Agreement.
ARTICLE EIGHT. MISCELLANEOUS
Section 8.01. Spanish Interpretations; English Interpretation Controlling.
This document shall be executed in English and Spanish. The English
version is the only valid version for legal purposes but it is certified that
the Spanish version is a legal translation of the original document in English.
Section 8.02. Counterparts.
This document may be executed in counterparts, all of which shall
constitute one and the same Agreement.
Section 8.03. Assignment.
This Agreement may not be assigned without the prior written consent of
the Company.
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Section 8.04. Governing Law.
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Florida, without regard to the
conflicts of laws principles.
Section 8.05. Interpretation.
The paragraph headings of this Agreement and the captions of the Exhibits
attached hereto are for convenience only and are not intended, and shall not be
construed, to alter, limit, or enlarge in any way the scope or meaning of the
language contained in this Agreement and the Exhibits attached hereto.
Section 8.06. Whole Agreement.
Except as otherwise provided herein, this Agreement, including without
limitation, all the Exhibits attached hereto, and the document and instruments
described herein, contains the whole agreement between each member of the Old
Investor Group, each member of the New Investor Group and the Company.
[The rest of this page is intentionally left blank]
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IN WITNESS HEREOF, the parties have caused this Agreement to be executed
as of the date first written above.
OLD INVESTOR GROUP
Centro Inmobiliario RyC, S.L.
By: /s/ M. Xxxxx Xxxxx
-------------------------------------
Name: M. Xxxxx Xxxxx
Title: Attorney-in-fact
MAPET International Foundation, Inc.
By: /s/ M. Xxxxx Xxxxx
-------------------------------------
Name: M. Xxxxx Xxxxx
Title: Attorney-in-fact
Frontier Star, S.L.
By: /s/ M. Xxxxx Xxxxx
-------------------------------------
Name: M. Xxxxx Xxxxx
Title: Attorney-in-fact
Inverfape, S.A.
By: /s/ M. Xxxxx Xxxxx
-------------------------------------
Name: M. Xxxxx Xxxxx
Title: Attorney-in-fact
Xxxxx Xxxxxx, X.X.
By: /s/ M. Xxxxx Xxxxx
-------------------------------------
Name: M. Xxxxx Xxxxx
Title: Attorney-in-fact
NEW INVESTOR GROUP
BEHEER-EN
BELEGGINSMAATSCHAPPIJ
SELMOK BV
By: /s/ M. Xxxxx Xxxxx
-------------------------------------
Name: M. Xxxxx Xxxxx
Title: Attorney-in-fact
GOLDEN WORLDWIDE BUSINESS
CORPORATION
By: /s/ M. Xxxxx Xxxxx
-------------------------------------
Name: M. Xxxxx Xxxxx
Title: Attorney-in-fact
COMPANY
US DATA AUTHORITY, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: President and
Chief Executive Officer
EXHIBIT A
FORM OF ESCROW AGREEMENT
THIS ESCROW AGREEMENT dated as of ________, 2002 (the "Agreement") is
entered into by and between Centro Inmobiliario RyC, S.L., a limited liability
company organized under the laws of the Kingdom of Spain, MAPET International
Foundation, Inc., a Florida non-profit corporation, Frontier Star, S.L., a
limited liability company organized under the laws of the Kingdom of Spain,
Inverfape, S.A., a limited liability company organized under the laws of the
Dominican Republic, Xxxxx Xxxxxx, X.X., a limited liability company organized
under the laws of the Kingdom of Spain (collectively, the "Old Investor Group"),
BEHEER-EN BELEGGINSMAATSCHAPPIJ SELMOK BV, a limited liability company formed
under the laws of the Netherlands, GOLDEN WORLDWIDE BUSINESS CORPORATION, a
limited liability company formed under the laws of the British Virgin Islands
(collectively, the " New Investor Group"), US DATA AUTHORITY, INC., a Florida
corporation (the "Company") and Xxxxxxx X. Xxxxx, III, Esq. (the "Escrow
Agent"), upon the following recitals of fact:
WHEREAS, contemporaneously with the execution of this Agreement, the Old
Investor Group, the New Investor Group and the Company shall execute an Amended
and Restated Subscription Agreement, dated as of November 1, 2002 (the
"Subscription Agreement");
WHEREAS, the New Investment Group, pursuant to the Subscription Agreement,
assumed the rights and obligations of the Old Investor Group under a
Subscription Agreement, as amended, dated August 1, 2002;
WHEREAS, pursuant to the Subscription Agreement, the New Investor Group
agreed to purchase certain shares of Common Stock of the Company and certain
shares of Class A Convertible Preferred Stock of the Company (collectively, the
"Shares") and the Company agreed to sell such Shares to the Investor Group for
an aggregate purchase price of $7,900,000 (the "Proceeds");
WHEREAS, the Old Investment Group remains obligated to purchase the Shares
to the extent the New Investment Group does not fulfill its obligations pursuant
to the Subscription Agreement; and
WHEREAS, the Subscription Agreement provides that the Proceeds be
disbursed into an attorney escrow account pursuant to and in accordance with the
Investment Distribution Committee Guidelines, attached hereto as Exhibit A.
NOW THEREFORE, in consideration of the foregoing and of other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Deposit of Escrow Funds. Contemporaneously with the execution of this
Agreement, the Old Investor Group, the New Investor Group and the Company shall
have executed the Subscription Agreement dated as of November 1, 2002.
Immediately upon execution of the Subscription Agreement and this Agreement,
the first disbursement of $1,000,000 shall be paid by the New Investor Group
into an attorney escrow account with the Escrow Agent and disbursed according to
the Disbursement Notice dated October __, 2002 from the Investment Distribution
Committee of the Company. Any other Proceeds requested by the Investment
Distribution Committee from the New Investor Group and thereafter funded by the
New Investor Group shall also be deposited with the Escrow Agent in accordance
with this Agreement. Thereafter, Escrow Agent shall retain and disburse the
escrowed funds pursuant to this Agreement.
2. Escrow.
A. Escrow Agent agrees to hold all of the escrowed funds in escrow
subject to the terms and conditions contained in this Agreement.
B. Unless otherwise instructed by the Company that the Old Investor
Group is obligated to perform pursuant to Section 1.01 of the Subscription
Agreement, the Escrow Agent shall only accept instructions from the New Investor
Group and the Investment Distribution Committee of the Company. If the Escrow
Agent is instructed by the Company to accept instructions from the Old Investor
Group, all actions required to be taken by the New Investor Group pursuant to
this Agreement shall apply equally to the Old Investor Group.
C. Unless otherwise provided for in this Agreement or any addendum
hereto, Escrow Agent shall disburse the escrowed funds without interest or other
accumulation in value.
D. Escrow Agent shall not be deemed to have knowledge of any matter
or thing unless and until Escrow Agent has actually received written notice of
such matter or thing and Escrow Agent shall not be charged with any constructive
notice whatsoever.
E. In the event instructions from the New Investor Group or the
Investment Distribution Committee of the Company would require Escrow Agent to
expend any monies or to incur any cost as holder of the escrowed funds, Escrow
Agent shall be entitled to refrain from taking any action until it receives
payment for such costs.
F. The New Investor Group, the Old Investor Group and the Company
acknowledge and agree that nothing in this Agreement shall prohibit Escrow Agent
from serving in a similar capacity on behalf of others.
4. Release of Escrowed Funds.
A. Escrow Agent agrees to release the escrowed funds in accordance
with the terms and conditions set forth herein and with the Investment
Distribution Committee Guidelines attached hereto as Exhibit A.
B. In the event Escrow Agent shall be uncertain as to its duties or
rights hereunder or shall receive instructions from the New Investor Group or
the Investment Distribution Committee of the Company with respect to the
escrowed funds or any other sums or things which may be held hereunder, which,
in its sole opinion, are in conflict with any provision
of this Agreement, Escrow Agent shall be entitled to refrain from taking any
action until it shall be directed otherwise in writing by the Investment
Distribution Committee, or by a final order or judgment of a court of competent
jurisdiction.
C. If all or any portion of the escrowed funds delivered to Escrow
Agent are in the form of a check or in any other form other than cash, Escrow
Agent shall deposit same as required but shall not be liable for the nonpayment
thereof nor responsible to enforce collection thereof. If such check or other
instrument other than cash representing the escrowed funds is returned to Escrow
Agent unpaid, Escrow Agent shall notify the New Investor Group and the Company
for further instructions.
5. Liability of Escrow Agent. It is agreed that the obligations of
Escrow Agent hereunder are purely ministerial in nature and shall be expressly
limited to the safekeeping of the escrowed funds and for the disposition of same
in accordance with this Agreement. Each party hereby indemnifies Escrow Agent
and holds it harmless from and against any and all claims, liabilities, damages,
costs, penalties, losses, actions, suits or proceedings at law or in equity, or
any other expenses, fees or charges of any character or nature, which it may
incur or with which it may be threatened directly or indirectly arising from or
in any way connected with this Agreement or which may result from Escrow Agent's
following of joint instructions from the New Investor Group and the Investment
Distribution Committee of the Company, and in connection therewith, each party
indemnifies Escrow Agent against any and all expenses, including attorneys' fees
and the cost of defending any action, suit, or proceeding or resisting any such
claim, whether or not litigation is instituted.
6. Disputes.
A. In the event Escrow Agent is joined as a party to a lawsuit by
virtue of the fact that it is holding the escrowed funds, Escrow Agent shall, at
its option, either (1) tender the escrowed funds to the registry of the
appropriate court or (2) disburse the escrowed funds in accordance with the
court's ultimate disposition of the lawsuit, and the New Investor Group or the
Old Investor Group, as the case may be, or both and the Company shall indemnify
and hold Escrow Agent harmless from and against any damages or losses in
connection therewith including, but not limited to, reasonable attorneys' fees
and court costs at all trial and appellate levels.
B. In the event Escrow Agent tenders the escrowed funds to the
registry of the appropriate court and files an action of interpleader naming the
New Investor Group or the Old Investor Group, as the case may be, or both and
the Company and any affected third parties of whom Escrow Agent has received
actual notice (whether such action is instituted by Escrow Agent as a new
lawsuit or in response to an action to which Escrow Agent is a party or in which
the escrowed funds are involved), Escrow Agent shall be released and relieved
from any and all further obligation and liability hereunder or in connection
herewith and the New Investor Group or the Old Investor Group, as the case may
be, or both and the Company hereby, jointly and severally, indemnify and hold
Escrow Agent harmless from and against any damages or losses arising in
connection therewith including, but not limited to, all costs and expenses
incurred by Escrow Agent in connection with the filing of such action including,
but not limited to, reasonable attorneys' fees and court costs at all trial and
appellate levels.
7. Term of Agreement.
A. This Agreement shall remain in effect unless and until it is
canceled in any of the following manners:
(i) Upon written notice given and signed by the New Investor
Group and the Company of cancellation of designation of Escrow Agent to act and
serve in said capacity, in which event, cancellation shall take effect no
earlier than twenty (20) days after notice to Escrow Agent of such cancellation
and in which event the escrowed funds shall be delivered by Escrow Agent to
another escrow agent who shall agree to serve in such capacity under the terms
of this Agreement; or
(ii) Escrow Agent may resign as escrow agent at any time upon
giving notice to the New Investor Group and the Company of its desire to so
resign; provided, however, that resignation of Escrow Agent shall take effect no
earlier than twenty (20) days after the giving of notice of resignation; or
(iii) Upon compliance with all escrow provisions and
disbursement of all of the Proceeds pursuant to this Agreement.
B. In the event a successor escrow agent is not located, Escrow
Agent shall have the right to deposit all of the escrowed funds held hereunder
into the registry of an appropriate court and request judicial determination of
the rights between the parties asserting rights or interest to the escrowed
funds, by interpleader or other appropriate action, and the New Investor Group
or the Old Investor Group, as the case may be, or both and the Company shall
indemnify and hold Escrow Agent harmless from and against any damages or losses
in connection therewith including, but not limited to, reasonable attorneys'
fees and court costs at all trial and appellate levels.
C. Upon termination of the duties of Escrow Agent in any manner set
forth herein, Escrow Agent shall deliver all of the escrowed funds to the newly
appointed escrow agent, and, except as otherwise specified herein, Escrow Agent
shall not otherwise have the right to withhold escrowed funds from said newly
appointed escrow agent.
D. Escrow Agent shall not be bound by any modification or rescission
of this Agreement unless in writing and signed by the New Investor Group, the
Old Investor Group, the Company and Escrow Agent.
8. Notices. All notices, certificates, requests, demands, materials and
other communications hereunder shall be in writing and deemed to have been duly
given (1) upon delivery by hand to the appropriate address of the party
receiving notice, or (2) on the third business day after mailing by United
States registered or certified mail, return receipt requested, postage prepaid
to such party's address. Any notice given pursuant to this Section 8 to the
Escrow Agent, New Investor Group, the Old Investor Group or to the Company shall
be addressed to the following individuals at the following addresses:
If to the Escrow Agent: Xxxxxxx X. Xxxxx, III, Esq.
[Firm Name]
[Address]
[Telephone]
[Facsimile]
If to the New Investor Group: [Name]
[Address]
[Telephone]
[Facsimile]
If to the Old Investor Group: [Name]
[Address]
[Telephone]
[Facsimile]
If to the Company: Xxxxxxxx X. Xxxxxx
US Data Authority, Inc.
0000 XxXxxxx Xxxx, Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxx 00000
Tel: 000.000.0000
Fax: 000.000.0000
9. Choice of Law and Venue. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida. In the event any
action, suit or proceeding is instituted as a result of any matter or thing
affecting this Agreement, the parties hereto hereby designate Dade County,
Florida, as the proper jurisdiction and the venue in which same is to be
instituted.
10. Cumulative Rights. No right, power or remedy conferred upon Escrow
Agent by this Agreement is exclusive of any other right, power or remedy, but
each and every such right, power or remedy shall be cumulative and concurrent
and shall be in addition to any other right, power or remedy Escrow Agent may
have under the Agreement or now or hereafter existing at law, in equity or by
statute, and the exercise of one right, power or remedy by Escrow Agent shall
not be construed or considered as a waiver of any other right, power or remedy.
11. Binding Agreement. This Agreement shall be binding upon the Old
Investor Group, the New Investor Group, the Company and the Escrow Agent and
their respective successors and assigns.
[The rest of this page is intentionally left blank]
IN WITNESS WHEREOF, the parties have executed this Agreement the date set
forth above.
OLD INVESTOR GROUP
Centro Inmobiliario RyC, S.L.
By: _________________________
Name: M. Xxxxx Xxxxx
Title: Attorney-in-fact
MAPET International Foundation, Inc.
By: _________________________
Name: M. Xxxxx Xxxxx
Title: Attorney-in-fact
Frontier Star, S.L.
By: _________________________
Name: M. Xxxxx Xxxxx
Title: Attorney-in-fact
Inverfape, S.A.
By: _________________________
Name: M. Xxxxx Xxxxx
Title: Attorney-in-fact
Xxxxx Xxxxxx, X.X.
By: _________________________
Name: M. Xxxxx Xxxxx
Title: Attorney-in-fact
NEW INVESTOR GROUP
BEHEER-EN BELEGGINSMAATSCHAPPIJ
SELMOK BV
By: _________________________
Name: M. Xxxxx Xxxxx
Title: Attorney-in-fact
GOLDEN WORLDWIDE BUSINESS CORPORATION
By: _________________________
Name: M. Xxxxx Xxxxx
Title: Attorney-in-fact
COMPANY
US DATA AUTHORITY, INC.
By: _________________________
Name: Xxxxxxxx X. Xxxxxx
Title: President and
Chief Executive Officer
ESCROW AGENT
The Law Office of Xxxxxxx X.
Xxxxx, III, Esq.
By: ___________________________
Name: Xxxxxxx X. Xxxxx, III
EXHIBIT A
INVESTMENT DISTRIBUTION COMMITTEE
GUIDELINES FOR DISBURSEMENTS
See Exhibit B
EXHIBIT B
INVESTMENT DISTRIBUTION COMMITTEE
GUIDELINES FOR DISBURSEMENTS
November 1, 2002
The investment distribution committee (the "Committee") shall consist of
three (3) individuals: (i) the CEO or President of the Company, (ii) the
Controller of the Company and (iii) an authorized representative of the New
Investor Group. The Committee will be responsible for the approval of each
request for a disbursement to be made to Company for the balance of the Proceeds
(as defined in the Amended and Restated Investors Questionnaire and Subscription
Agreement, dated November 1, 2002 (the "Subscription Agreement")).
Currently, the Committee consists of Xxxxxxxx X. Xxxxxx, Xxxxxx Xxxxx and
Xxxxx Xxxxx, Jr., or any other authorized representative of the New Investor
Group.
Mechanics of Disbursements:
1. The Committee, upon request by the Company, shall decide,
unanimously, to request a disbursement (except as permitted pursuant
to Section 2.04 of the Subscription Agreement) pursuant to the
Subscription Agreement from the New Investor Group (the
"Disbursement Notice"). Any one member of the Committee may call, at
any time, a meeting (whether in person or by telephonic meeting) of
the Committee to discuss such Disbursement Notice. In the event that
any member of the Committee (with the exception of the authorized
representative of the New Investor Group) fails to join in such
meeting, the other members of the Committee shall be permitted to
call and conduct a valid meeting and the unanimous consent of such
members of the Committee may request such Disbursement Notice. In
the event the Committee members fail to reach an agreement on the
amount and/or use of proceeds in a Disbursement Request, the
Committee shall submit the matter to the Board of Directors of the
Company (the "Board") for resolution. A vote of a majority of the
Board shall constitute a binding action for the Committee. Such
notice shall include:
(i) the date of the request,
(ii) the amount of the disbursement,
(iii) the date the disbursement is required (the "Delivery
Date"), and
(iv) wire transfer instructions, if applicable.
Such Disbursement Notice shall be in the form attached hereto.
2. The Committee shall give at least five (5) business days notice to
the New Investor Group for a disbursement pursuant to a Disbursement
Notice.
3. Upon receipt of such request, the New Investor Group shall pay
directly, or cause payment through another entity, within five (5)
business days, by wire transfer, or other means, to the escrow agent
or the Company, as the case may be, in the amount set forth in the
Disbursement Notice.
4. If such disbursement pursuant to a Disbursement Notice is paid
directly to the escrow agent, the escrow agent shall wire transfer
the disbursement into the operating account, or any other account(s)
designated in the Wire Transfer Instructions in the Disbursement
Notice, of the Company no later than the second business day after
such receipt of the disbursement from the New Investor Group.
Disbursement Notices may be requested on an as needed basis;
provided that the total of such disbursements does not exceed the total
Proceeds (as defined in the Amended Subscription Agreement).
Within two (2) business days after a disbursement to the Company
pursuant to a Disbursement Notice and becoming fully available to the
Company, the Company shall instruct StockTrans, Inc., its transfer agent,
to deliver to each member of the New Investor Group their Shares pursuant
to Section 2.05 of the Subscription Agreement.
If, pursuant to Section 1.01 of the Subscription Agreement, the Old
Investor Group is required to perform under the Subscription Agreement,
any reference to New Investor Group shall also apply equally to the Old
Investor Group.
FORM DISBURSEMENT REQUEST
1. Date of Request:
2. Dollar Amount: US$
3. Delivery Date:
4. Wire Transfer Instructions
Bank Name:
Account Number:
ABA Routing Number:
Account Name:
