Exhibit 7.1
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT (this "Agreement") is entered into as of this
21st day of May, 1997 by and among Xxxxx X. Xxxxxxx, individually ("Xxxxxxx"),
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X. Xxxxxxxxx Holdings Co., a Colorado limited partnership ("G.S. Holdings"),
Xxxxxxx X. Xxxxxx, individually ("Xxxxxx"), Xxxx X. Xxxxxxxxx, individually ("X.
Xxxxxxxxx"), Jan E. Xxxxx, individually ("Xxxxx"), Xxxxxxx X. Xxxxxx,
individually ("Xxxxxx"), J. Xxxxxxx Xxxxxxx, individually ("Brittan"), Xxxxx X.
Xxxxx, individually ("Xxxxx"), Peregrine Investments, a Virginia general
partnership ("Peregrine"), Xxxx X. Xxxxxx, individually ("Xxxxxx") and Xxxx X.
Xxxx, Xx., individually ("Xxxx") (collectively, the "Exchanging Parties," and
each an "Exchanging Party"), Advance Display Technologies, Inc., a Colorado
corporation (the "Company"), Display Optics, Ltd., a Colorado limited
partnership (the "Partnership"), and Display Group, LLC, a Colorado limited
liability company (the "LLC").
RECITALS
A. The Exchanging Parties individually own the assets indicated on
Schedule A to this Agreement, including (i) Series B Preferred Stock of the
Company, (b) Class A limited partnership interests in the Partnership, (c) debt
of the Partnership, (d) equity interests in the LLC and (e) debt of the LLC. In
addition, as also indicated on Schedule A, the LLC holds debt of the
Partnership.
B. The Series B Preferred Stock of the Company is convertible into
common stock of the Company ("Common Stock"). All of the debt described above
is convertible into Class B limited partnership interests in the Partnership.
The Partnership Agreement of the Partnership provides that 99% of all
distributions by the Partnership will be made to the limited partners until the
limited partners have received distributions equal to 150% of their investment
in the Partnership. The Class A and Class B limited partnership interests are
convertible into Common Stock.
C. In order to simplify the structure of the Company's business,
while retaining to the extent practicable the economic characteristics of the
investments described above, the parties desire for the Exchanging Persons to
transfer to the Company the assets listed on Schedule A (the "Exchanged Assets")
in exchange for the assets and rights listed on Schedule B and otherwise
described in this Agreement.
D. The independent directors of the Company have unanimously
determined that the transactions contemplated by this Agreement are fair to, and
in the best interests of, the Company and the shareholders of the Company other
than the exchanging Persons.
The parties agree as follows:
Section 1 Exchange.
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1.1 (a) The parties hereto acknowledge that the exchange
contemplated by Section 1.1(b) below does not include value for any accrued
interest on the Loans. Each Exchanging Party hereby expressly waives all rights
to any accrued but unpaid interest on the Loans.
(b) Each Exchanging Party hereby transfers all of its right,
title and interest in and to all assets indicated as owned by such Exchanging
Party on Schedule A in exchange for the number of shares of Common Stock and
Series C Preferred Stock of the Company indicated for such Exchanging Party on
Schedule B and the other consideration referred to elsewhere in this Agreement.
The Company accepts such assignment and hereby issues to each Exchanging Party
the stock of the Company as indicated on Schedule B (the "Company Stock"). The
exchange contemplated by this Section 1.1(b) shall be immediately effective as
soon as this Agreement has been signed by all the parties (the "Effective
Time").
1.2 After the Effective Time, each Exchanging Party shall promptly
surrender to the Company all notes, certificates or other instruments of any
kind evidencing ownership of any of the Exchanged Assets, all duly endorsed to
the Company and accompanied by proper instruments of transfer to the Company, at
its office designated as herein provided. Upon receipt of the foregoing from an
Exchanging Person, the Company shall promptly deliver or send the following to
such Exchanging Person:
(a) certificates in the name of such Exchanging Person evidencing
the Company Stock to which such Exchanging Party is entitled as indicated on
Schedule B.
(b) a Registration Rights Agreement in the form attached to this
Agreement as Exhibit A, duly executed by the Company.
1.3 For each Exchanging Person, the exchange contemplated by this
Agreement shall be deemed to have occurred as of the Effective Time, and the
person or persons entitled to receive the shares of Company Stock shall be
treated for all purposes as the record shareholder or shareholders of such
shares of Company Stock on the Effective Time.
1.4 If any Exchanging Party is unable to locate a promissory note or
stock certificate to be surrendered by such Exchanging Party under Section 1.2,
such Exchanging Party shall be entitled nevertheless to receive the items
referred to in clauses (a) and (b) of Section 1.2 upon submission to the Company
of a lost note or lost certificate affidavit in customary form. The affidavit
shall state, among other things, that the lost note or certificate has not been
endorsed or otherwise transferred to encumbered and that such Exchanging Party
will indemnify the Company and the other Exchanging Parties for any damages they
may incur in connection with any claim by any third party to have any interest
in the lost note or certificate.
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1.5 All obligations of the Exchanging Parties under this Agreement
shall be several and not joint. Under no circumstances will any Exchanging
Party have any liability for any failure by any other Exchanging Party to comply
with any provision of this Agreement.
Section 2 Assignment and Assumption.
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2.1 In connection with and as part of the exchange described in
Section 1.2 above, the Company hereby assumes the obligation of the LLC to pay
$163,000 to Holme Xxxxxxx & Xxxx LLP ("HRO") for fees and disbursements relating
to legal services, pending review of the legal invoices therefor. The final
amount of legal fees shall be agreed upon by the LLC, the Company and HRO, and
in the event that the amount of such fees is not equal to $163,000, the Company
stock to be issued pursuant to Schedule B shall be adjusted accordingly.
Section 3 Company Representations and Warranties. As a material inducement to
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the Exchanging Parties to enter into this Agreement, the Company makes the
following representations and warranties to the Exchanging Parties, subject to
the disclosures set forth on Exhibit B attached hereto (the "Disclosure
Schedule"):
3.1 Organization, Standing, and Qualification. The Company is a
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corporation, duly organized, validly existing and in good standing under the
laws of the State of Colorado, and has all necessary power and authority to own
its properties owned by it and carry on its business as currently conducted.
3.2 Authorization; Enforceability. All action on the part of the
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Company necessary for the authorization, execution, delivery, and performance
of all the obligations of the Company under this Agreement and the consummation
of the transactions contemplated hereby has been taken. This Agreement
constitutes the valid and binding obligations of the Company, enforceable
against the Company in accordance with its terms. The members of the Company's
Board of Directors are Xxxxxx Xxxx, Xxxx Xxxxxxx, and Xxxxx Xxxxxxxx, and there
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are no other Directors of the Company. Each such person was duly appointed and
remains in good standing as a Director of the Company. The Company has provided
the Exchanging Parties and their respective counsel with true and accurate
copies of the appropriate resolutions of the Company's Board of Directors
relating to the transactions contemplated by this Agreement, certified by the
Secretary of the Company as true, accurate, and effective as of the date hereof.
3.3 Capitalization. The authorized capital stock of the Company
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consists of 100,000,000 shares of Common Stock, par value $.001 per share, and
100,000,000 shares of Preferred Stock par value $.001 per share, of which
1,000,000 shares have been designated as Series A Preferred Stock, 2,991,474
shares have been designated as Series B Preferred Stock and 1,843,900 shares
have been designated as Series C Preferred Stock. Of the authorized capital
stock of the Company, 3,834,505 shares of Common Stock, no shares of Series A
Preferred Stock, and 2,991,505 shares of Series B Preferred Stock are
outstanding. All outstanding shares of the Company's capital stock are duly
authorized, validly issued, fully paid and nonassessable. Upon completion of the
transactions contemplated by this Agreement, 21,343,923 shares of
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Common Stock, no shares of Series A Preferred Stock, no shares of Series B
Preferred Stock and 1,843,900 shares of Series C Preferred Stock will be issued
and outstanding. Except as set forth on the Disclosure Schedule, there are no
outstanding rights, subscriptions, options, warrants, conversion privileges,
preemptive rights, or other agreements or commitments obligating the Company to
issue or transfer any additional equity securities (with or without the passage
of time and/or the occurrence of any other events) except for the items being
transferred to the Company by the Exchanging Parties under Section 1 above, none
of which items will be outstanding upon completion of the transactions
contemplated by this Agreement.
3.4 Validity of Stock. The Articles of Amendment to the Articles of
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Incorporation (the "Articles of Amendment") of the Company, a complete and
accurate copy of which are attached hereto as Exhibit C, are duly authorized by
the Company's Amended and Restated Articles of Incorporation, have been duly
adopted by the Board of Directors of the Company and govern the terms of the
Series C Preferred Stock. The Articles of Amendment have been filed with the
Colorado Secretary of State and are in full force and effect. The shares of
Common Stock and Series C Preferred Stock to be issued pursuant to this
Agreement (collectively, the "Shares"), when issued, shall be duly authorized,
validly issued, fully paid, and non-assessable and will be free of any liens or
encumbrances.
3.5 Control of Shares. Upon completion of the transactions
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contemplated by this Agreement, the Exchanging Parties, in the aggregate, will
own stock possessing at least 80% of the total combined voting power of all
classes of stock of the Company entitled to vote and at least 80% of the total
number of shares of all other classes of stock of the Company.
3.6 Securities and Exchange Commission Filings. (a) True and
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complete copies of all reports, registration statements, definitive proxy
statements and other documents, including all amendments to any of the foregoing
(collectively the "Commission Filings") filed by the Company with the Securities
and Exchange Commission (the "Commission") have been furnished to Display Group
by the Company. The Commission Filings constitute all of the documents required
to be filed by the Company with the Commission during the last five years. As of
their respective dates, each of such Commission Filings complied in all material
respects with the applicable requirements of the Securities Act of 1933 and the
Securities Exchange Act of 1934, and none of such Commission Filings contained
as of such date any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(b) When filed with the Commission, the financial statements included
in the Commission Filings filed during the three-year period ending on the date
of this Agreement complied as to form in all material respects with the
applicable rules and regulations of the Commission and were prepared in
accordance with generally accepted accounting principles applied on a consistent
basis (except as may be indicated therein or in the notes or schedules thereto),
and such financial statements fairly present the financial position of the
Company as at the dates thereof and the results of its operations and its cash
flows for the periods then ended,
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subject, in the case of the unaudited interim financial statements, to normal,
recurring year-end audit adjustments. Except to the extent reflected or
reserved against in the financial statements included in the Company's Quarterly
Report on Form 10-Q for the quarter ended December 31, 1996 (the "10-Q"), the
Company does not have any liability or obligation of any kind, whether accrued,
absolute, contingent, unliquidated or other and whether due or to become due
(including any liability for breach of contract, breach of warranty, torts,
infringements, claims or lawsuits), other than liabilities for debt included in
the Exchanged Assets and immaterial liabilities incurred since December 31,
1996, in the ordinary course of business. Since December 31, 1996, the Company
has not entered into any agreement (other than this Agreement), or transaction
outside of the ordinary course of business, or declared or paid any dividend or
acquired or committed to acquire any of its capital stock (other than pursuant
to this Agreement) and there has not been any material adverse change in the
Company's financial position, results of operations or prospects.
3.7 Tax Returns and Audits. The Company has filed all federal,
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state, and local tax returns and reports within the times and in the manner
prescribed by law and has paid (or made adequate provision in the balance sheet
included in the 10-Q for) all taxes shown due on such returns, as well as all
other assessments and penalties which have become due and payable. The
Company's federal income tax returns have not been audited by the Internal
Revenue Service or any other taxing authority and no notice of audit has been
received. The provisions for taxes in the balance sheet included in the 10-Q
are adequate for any and all federal, state, county, local and other taxes for
the period ending on such date and for all prior periods, whether or not
disputed. The Company has not received notice of any disputes, deficiency
assessments, or proposed adjustments to taxes payable by the Company.
3.8 Articles of Incorporation and Bylaws: No Conflicts. The Company
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is not in violation of any provision of its Articles of Incorporation or Bylaws,
as amended and in effect as of the date hereof. There is no default or event
that, with notice or lapse of time, or both, would conflict with or constitute a
breach of the Company's Amended and Restated Articles of Incorporation or
Bylaws. The execution, delivery and performance of this Agreement by the
Company will not violate, cause a default under, otherwise breach or result in
the actual or potential acceleration of any obligations or any loss or
forfeiture of any rights by the Company pursuant to any existing agreement or
arrangement to which the Company or, to the best of the Company's knowledge, the
Partnership, is a party or by which their respective assets may be affected.
3.9 Litigation. There are no actions, suits, or legal,
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administrative, or other proceedings or investigations pending or, to the best
of the Company's knowledge, threatened before any court, agency, or other
tribunal to which the Company or, to the best of the Company's knowledge, the
Partnership, is a party or against or affecting any of the property, assets,
businesses, or financial condition of the Company or, to the best of the
Company's knowledge, the Partnership. Neither the Company nor, to the best of
the Company's knowledge, the Partnership, is in default with respect to any
order, writ, injunctions, or decree of any federal, state, local or foreign
court, department, agency, or instrumentality to which it is a party.
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3.10 Agreement Will Not Cause Breach or Violation. The consummation
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of the transactions contemplated by this Agreement (including the issuance of
the Company Stock) will not result in any violation of or constitute a default
or an event that, with notice or lapse of time, or both, would conflict with or
constitute a breach or default of the Partnership Agreement or the Articles of
Incorporation or Bylaws of the Company or of any contract commitment or other
arrangement or any material provision of state or federal law and will not
result in the creation or imposition of any lien or encumbrance on any of the
property of the Company or, to the best of the Company's knowledge, the
Partnership, or on the Company Stock, the limitation of any rights of the
Company or, to the best of the Company's knowledge, the Partnership, or the
increase or acceleration of any obligations of the Company or the Partnership.
3.11 Governmental Approvals/Third Party Consents. All consents,
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approvals, or authorizations of, or registrations, qualifications, designations,
declarations, or filings with any federal or state governmental authority, and
all consents, approvals or authorizations of any third party, required in
connection with the execution of this Agreement and the transactions
contemplated hereby (including the issuance and sale of the Company Stock) have
been obtained by the Company.
3.12 Registration Rights. The Company is not under any obligation to
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register any of its presently outstanding securities pursuant to the Securities
Act of 1933 (the "Securities Act") except as set forth in the Registration
Rights Agreement in form substantially similar to Exhibit A, to be executed by
the Exchanging Parties and the Company simultaneously with this Agreement.
3.13 The Company and its Board of Directors have received a written
opinion from Neidiger, Tucker, Bruner, Inc., independent financial advisors,
that the transactions contemplated by this Agreement are fair, from a financial
point of view, to the shareholders of the Company other than the Exchanging
Parties.
3.14 Accuracy of Information Furnished. The representations and
---------------------------------
warranties in this Agreement do not contain any untrue statement of a material
fact or omit to state any material fact that is necessary to make the statements
contained herein or therein not misleading as of the Effective Time.
3.15 Compliance with Laws. The Company (a) has complied with and is
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in compliance in all material respects with all federal, state and local
statutes, laws, ordinances, regulations, rules, judgments, orders and decrees
applicable to it and its assets, business and operations and (b) has not
received notice of any claim of default under or violation of any statute, law,
ordinance, regulation, rule, judgment, order or decree.
Section 4 Remedies on and Notices of Default. In addition to any other
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available legal or equitable remedies, if the representation and warranty in
Section 3.3 of this Agreement is ever determined to have been inaccurate in any
respect when made, then the Company shall promptly issue to each Exchanging
Person the number of shares of Common Stock and/or Series C
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Preferred Stock that will cause the total amount of Company Stock issued to each
Exchanging Party to represent the same percentage voting and economic interest
in the Company as such person would have received if there had been no
inaccuracy in Section 3.3.
Section 5 Representations and Warranties of the Exchanging Parties. (a) Each
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Exchanging Party represents severally, but not jointly, that this Agreement
is a valid and binding obligation of such Exchanging Party, enforceable against
such Exchanging Party in accordance with its terms, and that the Exchanging
Party has not taken any action that would cause any of the Exchanged Assets
owned by such Exchanging Party (as indicated on Schedule A to this Agreement) to
be subject to the claims of any third party.
(b) Each Exchanging Party acknowledges, represents and warrants as
follows:
(i) Each Exchanging Party that is a natural person is twenty-one (21)
years of age, of legal capacity to execute this Agreement, and in a financial
position to hold the Shares for an indefinite period of time and is able to bear
the economic risks and withstand a complete loss of his investment in the
Shares; and
(ii) Each Exchanging Party, either alone or with the assistance of his
own professional advisor, has such knowledge and experience in financial and
business matters that he is capable of evaluating the merits and risk of an
investment in the Shares and has the net worth to undertake such risks; and
(iii) Each Exchanging Party has received and had the opportunity to
review the Company's Annual Report on Form 10-KSB for the fiscal year ended June
30, 1996 and the Articles of Amendment to the Articles of Incorporation
describing the Series C Preferred Stock, and has been given access to full and
complete information regarding the Company and has utilized such access to his
satisfaction for the purpose of obtaining such information regarding the Company
as he has reasonably requested; and, particularly, each Exchanging Party has
been given reasonable opportunity to ask questions of, and receive answers from,
representatives of the Company concerning the terms and conditions of the
exchange and to obtain any additional information, to the extent reasonably
available; and
(iv) Each Exchanging Party recognizes that the Company has a limited
operating history and that the Shares as an investment involve a high degree of
risk, including but not limited to the risk of economic losses from operations
of the Company; and
(v) Each Exchanging Party realizes that (A) the purchase of the Shares
is a long-term investment; (B) the purchaser of the Shares must bear the
economic risk of investment for an indefinite period of time because the Shares
have not be registered under the Securities Act of 1933 or under the securities
laws of any state and, therefore, the Shares cannot be resold unless the Share
are subsequently registered under said laws or exemptions from such
registrations are available; and (C) the transferability of the Shares is
restricted and requires conformity with the restrictions contained in paragraph
(c) below.
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(c) Each Exchanging Party acknowledges that the Shares have not been
registered under the Securities Act of 1933 or applicable state securities laws
and that the Shares are being offered and sold pursuant to exemptions from such
laws and that the Company's reliance upon such exemptions is predicated in part
on each Exchanging Party's representations as contained herein. Each Exchanging
Party represents and warrants that the Shares are being purchased for his own
account and for investment purposes only, and without the intention of reselling
or redistributing the same, that each Exchanging Party has made no agreement
with others regarding any of the Shares, and that each Exchanging Party's
financial condition is such that it is not likely that it will be necessary to
dispose of any of such securities in the foreseeable future. Each Exchanging
Party further represents and agrees that if, contrary to the foregoing
intentions, he should later desire to dispose of or transfer any of such
securities in any manner, he shall not do so without first obtaining (i) the
opinion of counsel to the Company that such proposed disposition or transfer may
be lawfully made without the registration of such securities pursuant to the
Securities Act of 1933, as then amended, and applicable state securities laws,
or (ii) such registration (it being understood that the Company has no
obligation to register any securities). The Company will restrict transfer in
accordance with the foregoing representation.
(d) Each Exchanging Party hereby represents and warrants that he is an
"accredited investor" and within the meaning of Rule 501 of Regulation D of the
1933 Act.
(e) Each Exchanging Party has obtained independent tax counsel or
advice regarding the tax treatment and effect of the Exchange to such Exchanging
Party. None of the Exchanging Parties has relied on any advice from the Company
regarding the tax treatment of the Exchange, and understands that the Company
has made no representations or warranties to that effect.
(f) The financial statements of the LLC as of December 31, 1996 (the
"LLC Financials") and previously delivered to the Company are a true and
accurate statement of the financial condition of the respective entities as of
the dates therein stated, prepared in accordance with Federal Income Tax
principles. Except to the extent reflected or reserved against in the LLC
Financials, the LLC does not have any liability or obligation of any kind,
whether accrued, absolute, contingent, unliquidated or other and whether due or
to become due (including any liability for breach of contract, breach of
warranty, torts, infringements, claims or lawsuits), other than immaterial
liabilities incurred since December 31, 1996, in the ordinary course of
business.
Section 6 Covenants of the Company.
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6.1 Affirmative Covenants. The Company shall use its best efforts to
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make all required filings under Rule 14f-1 of the Securities Exchange Act of
1934 in connection with the election of additional directors of the Company.
6.2 Negative Covenants. For a period commencing as of the Effective
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Time through the earlier to occur of (i) 90 days thereafter, or (ii) the date on
which the holders of the Series C Preferred Stock have elected 4 of the 7
members of the Board of Directors of the Company after filing of all applicable
securities filing described in Section 6.1 above, the Company agrees that it
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will not take any of the following actions by the Company without the prior
written consent of a majority of the holders of Series C Preferred Stock of the
Company:
(a) Amend the Articles of Incorporation or Bylaws of the Company;
(b) Consummate any mergers, acquisitions, sales or leases of assets
and other significant transactions involving the Company;
(c) Sell or otherwise issue any equity or debt securities of the
Company;
(d) Approve any annual operating and capital budgets of the Company or
any significant changes thereto;
(e) Change the Company's business activities beyond the scope of
individual display screen products;
(f) Enter into any agreements with directors, officers and other
affiliates of the Company;
(g) Consummate any stock splits or other reclassifications by the
Company;
(h) Compromise or release any claims of, or debts owed to, the
Company;
(i) Consummate any other actions out of the ordinary course of
business of the Company; or
(j) Review and approve any publicity or other communications
pertaining to the technology being developed by the Company or the shareholders.
The holders of the Series C Preferred shall reply promptly to any request by the
Company to take any of the foregoing actions.
In addition, up to 2 representatives of the holders of Series C Preferred Stock
shall be permitted to attend all meetings of the Board of Directors of the
Company. Also, upon request of the holders of Series C Preferred Stock and at
the expense of the Company, the Company will engage auditors and attorneys to
conduct a due diligence review of the Company, and the Company agrees to
cooperate in such review.
Section 7 Miscellaneous Provisions.
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7.1 Modifications and Waivers. This Agreement may not be amended or
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modified, nor may the rights of any party be waived, except by a written
document that is executed by (a) the Company and (b) Exchanging Persons with at
least 50% of the "amount at risk" as indicated in Schedule A. No amendment to
this Agreement reducing the consideration to be
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received by any Exchanging Person shall be effective unless signed by each
Exchanging Person whose consideration is to be reduced.
7.2 Assignment. This Agreement is binding upon and shall inure to
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the benefit of the parties and their respective successors and permitted
assigns. No party hereto may assign this Agreement to any third party without
the prior written consent of (a) the Company and (b) Exchanging Persons with at
least 50% of the "amount at risk" as indicated in Schedule A.
7.3 Rights and Obligations of Third Parties. Nothing in this
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Agreement, whether express or implied, is intended to confer any rights or
remedies under or by reason of this Agreement on any persons other than the
parties to it and their respective successors and permitted assigns, nor is
anything in this Agreement intended to relieve or discharge the obligation or
liability of any third parties to any party to this Agreement, nor shall any
provision give any third party any right of subrogation or action against any
party to this Agreement.
7.4 Notices. Any notice, request, consent, or other communication
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hereunder shall be in writing, and shall be sent by one of the following means:
(i) by registered or certified first class mail, postage prepaid, return receipt
requested; (ii) by facsimile transmission with confirmation of receipt; (iii) by
overnight courier service; or (iv) by personal delivery, and shall be properly
addressed as follows:
If to the Company to:
Advance Display Technologies, Inc.
0000 Xxxxx Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxx
Facsimile: (000) 000-0000
With a copy to:
Xxxxx Xxxxxxx, Esq.
Xxxxxxx Xxxxxxx & Xxxxx
0000 X. Xxxxxxxxx Xxx., Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
If to Partnership, to:
Display Optics, Ltd.
0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxx
Facsimile: (000) 000-0000
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If to LLC, to:
Display Group, LLC
0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
If to an Exchanging Party, to such Exchanging Party at the address set
forth on Schedule C attached to this Agreement, or to such other address or
addresses as the Company, the Partnership or the LLC or any Exchanging Party
shall hereafter designate to the other parties in writing. Notices sent by mail
shall be effective 7 days after they are sent, and notices delivered personally
by facsimile or by courier shall be effective at the time of delivery thereof.
7.5 Further Actions. All parties hereto agree to execute and deliver
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to the other parties, from time to time hereafter, for no additional
consideration and at no additional cost to the requesting party, such further
assignments, certificates, instruments, records, or other documents, assurances
or things as may be reasonably necessary to give full effect to this Agreement
and to allow each party fully to enjoy and exercise the rights accorded and
acquired by it under this Agreement.
7.6 Entire Agreement. This Agreement, including the schedules and
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exhibits to this Agreement, constitutes the entire agreement between the parties
hereto in relation to the subject matter hereof. Any prior written or oral
negotiations, correspondence, or understandings relating to the subject matter
hereof shall be superseded by this Agreement and shall have no force or effect.
The representations, warranties, covenants and agreements made herein shall
survive any investigation made by the Exchanging Parties.
7.7 Severability. If any provision that is not essential to the
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effectuation of the basic purpose of this Agreement is determined by a court of
competent jurisdiction to be invalid and contrary to any existing or future law,
such invalidity shall not impair the operation of the remaining provisions of
this Agreement.
7.8 Headings. The headings of the Sections of this Agreement are
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inserted for convenience of reference only and shall not affect the construction
or interpretation of any provisions hereof.
7.9 Schedules and Exhibits. The schedules and exhibits to this
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Agreement are a part of this Agreement for all purposes. Terms which are
defined in this Agreement shall have the same meanings when used in such
schedules and exhibits.
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7.10 Counterparts. This Agreement may be executed in any number of
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counterparts, each of which when executed and delivered shall be an original,
but all of which together shall constitute one and the same instrument.
7.11 Expenses. Each party shall bear and pay its own expenses
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incurred in connection with negotiating and preparing this Agreement and the
exhibits hereto.
7.12 Governing Law. This Agreement shall be construed in accordance
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with and governed by the laws of the State of Colorado.
7.13 Delays or Omissions. No delay or omission to exercise any
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right, power, or remedy accruing to either party, upon any breach or default of
the other party under this Agreement, shall impair any such right, power, or
remedy, nor shall it be construed to be a waiver of any such breach or default,
or an acquiescence therein, or of or in any similar breach of default thereafter
occurring; nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter occurring. Any
waiver, permit, consent, or approval on the part of either party of any breach
or default by the other party under this Agreement, or any waiver of any
provisions or conditions of this Agreement must be made in writing signed by the
parties and shall be effective only to the extent specifically set forth in such
writing. All remedies, either under this Agreement or by law or otherwise
afforded to either party, shall be cumulative and not alternative.
7.14 Attorneys Fees. If any party elects to pursue legal action to
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enforce its rights under this Agreement, and if a court of competent
jurisdiction adjudicates the matter, then the prevailing party in such action
shall be entitled to receive from the losing party all reasonable costs and
expenses, including the reasonable fees of attorneys, accountants, and other
experts, incurred by the prevailing party in investigating and prosecuting (or
defending) such action at the arbitration, trial and appellate levels.
COMPANY:
ADVANCE DISPLAY
TECHNOLOGIES, INC.,
a Colorado corporation
By: /s/ Xxxxxxx Xxxx
-----------------------------
Name: Xxxxxxx Xxxx
Title: Chairman
-12-
PARTNERSHIP:
DISPLAY OPTICS, LTD.,
a Colorado limited partnership
By: Advance Display Technologies, Inc., a
Colorado corporation, General Partner
By: /s/ Xxxxxxx Xxxx
------------------------------
Name: Xxxxxxx Xxxx
Title: Chairman
LLC:
DISPLAY GROUP, LLC,
a Colorado limited liability company
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Manager
EXCHANGING PARTIES:
/s/ Xxxxx X. Xxxxxxx
---------------------------------
Xxxxx X. Xxxxxxx
X. XXXXXXXXX HOLDINGS CO.,
a Colorado limited partnership
By: /s/ Xxxx X. Xxxxxxxxx
----------------------------------
Xxxx X. Xxxxxxxxx
General Partner
/s/ Xxxxxxx X. Xxxxxx
----------------------------------
Xxxxxxx X. Xxxxxx
-13-
/s/ Xxxx X. Xxxxxxxxx
----------------------------------
Xxxx X. Xxxxxxxxx
/s/ Jan E. Xxxxx
-----------------------------
Jan E. Xxxxx
/s/ Xxxxxxx X. Xxxxxx
----------------------------------
Xxxxxxx X. Xxxxxx
/s/ J. Xxxxxxx Xxxxxxx
-----------------------------------
J. Xxxxxxx Xxxxxxx
/s/ Xxxxx X. Xxxxx
-------------------------------
Xxxxx X. Xxxxx
PEREGRINE INVESTMENTS,
a Virginia general partnership
By: /s/ Xxxxx Xxxx
---------------------------
Name: Xxxxx Xxxx
Title: General Partner
/s/ Xxxx X. Xxxxxx
-------------------------------
Xxxx X. Xxxxxx
/s/ Xxxx X. Xxxx, Xx.
----------------------------------
Xxxx X. Xxxx, Xx.
-14-
