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STOCK EXCHANGE CLOSING AGREEMENT
THIS AGREEMENT (the "Agreement"), dated and effective as of May 14, 2001 by and
among:
M-I VASCULAR INNOVATIONS, INC. ("M-I"), a corporation organized and
existing under the laws of the State of Delaware, and
DBS HOLDINGS INC. ("DBS"), a corporation organized and existing under the
laws of the State of Nevada. Certain capitalized terms in this Agreement are
defined in Section 11.11.
RECITALS:
A. By Stock Exchange and Finance Agreement (dated April 25, 2001) (the "Stock
Agreement") DBS, M-I and certain M-I Stockholders have executed the said
Stock Agreement and the same is nor executory and effective having net the
criteria of sec. 11.11 of the Stock Agreement.
B. M-I and DBS have been advised by the finance advisers to the parties that
financing is impeded or not reasonably possible while the Stock Agreement
continues to await closing and, after discussion and acquiring sufficient
comfort that the finance advice is reasonable, the parties have determined
to provide for closing hereby and to declare closing and that the Stock
Agreement is fully effective and binding on the parties;
WHEREFORE THE PARTIES HERETO AGREE, in consideration of the mutual covenants,
agreements, representations and warranties herein contained hereby agree as
follows:
ARTICLE I
STOCK AGREEMENT TERMS AND CONDITIONS
1.01. Satisfaction of Terms. The parties hereto agree:
(a) Sec. 11.11 of the Stock Exchange is acknowledged to be fulfilled and M-I
hereby agrees to accept subscriptions from DBS for 9,000,000 shares, on the
terms and prices set forth in the Stock Agreement, and a demand debenture
for $2,000,000US on standard industry terms as suggested by counsel for M-I
and DBS, subject to advancement of sufficient funding.
(b) the parties acknowledge and agreement that the following have been
delivered each to the other and are executory and binding:
(i) A Stock Exchange and Finance Agreement (also the "Transaction") signed
by each of the companies and by M-I stockholders and tendering and
totaling 8,645,000 M-I shares and with accredition certificates for
the signing stockholders.
(ii) An original Stock Redemption Agreement signed by DBS and all the
redeeming shareholders and such shares in trust with counsel for DBS
and subject thereto.
(iii) A consent resolution of M-I approving the Transaction;
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(iv) A consent resolution of DBS approving the Transaction;
(v) A finance management agreement from Elco Bank & Trust.
(c) The parties agree that terms of commitments in regard to finance are
satisfactory for the purpose of sec. 1.06, 7.13, and 8.11 of the Stock
Agreement.
(d) DBS agrees to reserve sufficient capital for the finance of up to
$7,000,000 at or about $1.50US per unit with a unit composed of a share
and a six month warrant for another share at $4.00US and shall take the
directions of the board of M-I as to such finance until replacement of the
board of DBS by nominees of M-I.
(e) DBS shall advance $120,000 from first finance funds received for
redemption of DBS shareholders pursuant to the Redemption Agreement and
shall defer the remainder until receipt by closing of finance sufficient
for such purpose and the corporate purposes of DBS and M-I and at the
direction of the M-I directors..
(f) DBS hereby and concurrently herewith agrees to appoint as officers of DBS,
Xxxxxxx Xxxxxxx as President, Xxxx Xxxxxxx as V-P, Xxxx Xxxxxxxx as Second
V-P, Xxxxx Xxxxxx as Third V-P, Xxxx Xxxxxx as Fourth V-P and Xxxxx Xxxxxx
as Secretary, all of which shall be required signatories on the bank of
DBS and required signatories for approval of any documentation or debt or
finance of DBS.
(g) DBS shall appoint a new board composed of representatives of M-I and shall
file necessary filings forthwith for an initial board which M-I shall
provide on or before May 18, 2001 failing which such board shall be
composed of Xxxx Xxxxxxx, Xxxxxxx Xxxxxxx, Xxxxx Xxxxxx, and Xxxx
Xxxxxxxx.
(h) DBS and M-I warrant each to the other that the warranties of the Stock
Agreement are in good standing. The parties hereby agree that the Article
VII and Article VIII conditions of the Stock Agreement are satisfied or
are hereby waived and that parties hereby agree that closing is hereby
effected.
1.02. Post-Closing Matters. The parties hereby agree:
(a) To pursue completion of financing on a best efforts basis and to make all
reasonable efforts to complete $3,000,000 into treasury of DBS within 10
business days of the date of this agreement.
(b) DBS shall file a 14-f notice and appoint the above M-I board at the
earliest possible moment.
(c) Upon completion of not less than $1,000,000 by May 31, 2001 then DBS shall
issue an offer to the remaining M-I Stockholders contemplated by the Stock
Agreement and the counsel for DBS shall maintain in trust, for conversion
to DBS stock or undertakings, the shares of the Stock Exchange executing
shareholders and accepting M-I stockholders until the financing is
complete, the Redemption Agreement is effected and DBS shall be thereby
able to ascertain the sufficiency of capital to make issuance to such
executing M-I Stockholders - that is to say DBS shall retain sufficient
capital for financing on a priority basis. Shares and undertakings for
shares (in the event of insufficiency of capital) for M-I Stockholders
shall be issued pro rata in accordance with such M-I Stockholders
shareholdings in M-I.
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(d) DBS shall at the earliest reasonable time alter its capital in accordance
with the Stock Agreement.
ARTICLE II
MISCELLANEOUS PROVISIONS
2.01. Notices. All notices, requests, demands and other communications required
or permitted hereunder shall be in writing and shall be deemed to have been duly
given if delivered by hand or mailed, certified or registered mail with postage
prepaid to:
(a) If to M-I, to:
Law Offices of Xxxx & Xxxx;
0000 00xx Xxxxxx,
Xxxxx 000,
Xxxxxxx, Xxxxxxxx
00000
Att: Xxxxx Xxxx
or to such other person or address as M-I shall furnish to DBS in writing.
(b) If to DBS, to:
Xxxxxx X. Xxxxxxxxxx
Ducker, Montgomery, Xxxxx & Xxxxxxxxx, P.C.
0000 Xxxxx xxx, Xxxxx 0000
Xxxxxx, XX 00000
or to such other person or address as DBS shall furnish to M-I in writing.
2.02. Assignment. This Agreement and all of the provisions hereof shall be
binding upon and enure to the benefit of the Parties hereto and their respective
successors and permitted assigns, but neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto without the prior written consent of the other parties.
2.03. Governing Law. This Agreement and the legal relations among the parties
hereto shall be governed by and construed in accordance with the laws of
Colorado.
2.04. Counterparts. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This Agreement shall be
enforceable and considered an original by facsimile signed copy.
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2.05. Entire Agreement. This Agreement, including the Disclosure Schedules and
other documents referred to herein which form a part hereof, embodies the entire
agreement and understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises, warranties,
covenants or undertakings, other than those expressly set forth or referred to
herein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
The parties hereto have caused this Agreement to be duly executed all as of the
day and year first above written.
ATTEST DBS HOLDINGS INC.
By: /s/ Xxxxxx Xxxxxxxxxxx
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Secretary Xxxxxx Xxxxxxxxxxx - President
ATTEST M-I VASCULAR INNOVATIONS, INC.
By: /s/ Xxxxxxx Xxxxxxx
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Secretary President
