AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (hereinafter called the "Merger
Agreement") is made effective as of December 31, 1998, by and between
LeaseSource Online, Inc., an Ohio corporation ("LSI"), CarWizard, Inc., an Ohio
corporation ("CarWizard") and sometime collectively ("Acquirees"), the
undersigned shareholders of LSI and CarWizard (the "Shareholders") and Navidec,
Inc., a Colorado corporation ("NAV"). LSI, CarWizard and NAV are sometimes
referred to as the "Constituent Corporations," with reference to the following
facts:
A. The authorized capital stock of NAV consists of 20,000,000 shares of no
par value common stock. The authorized capital stock of both LSI and CarWizard
consists of eight hundred fifty (850) shares of common stock, no par value.
B. There are currently 3,606,221 shares of stock of NAV outstanding and
options and warrants to purchase an additional ____________ shares of common
stock.
C. LSI and CarWizard both have no subsidiaries, and each has a total of 100
shares of no par value common stock issued and outstanding, and there are no
options or other rights to acquire any newly issued shares available to any
person. The undersigned Shareholders are the sole Shareholders of LSI and
CarWizard.
D. The directors of the Constituent Corporations deem it advisable and to
the advantage of such corporations that LSI and CarWizard merge into NAV upon
the terms and conditions herein provided.
NOW, THEREFORE, the parties do hereby adopt the plan of merger encompassed
by this Merger Agreement and do hereby agree that the Acquirees shall merge with
and into NAV on the following terms, conditions, and other provisions:
1. TERMS AND CONDITIONS OF PLAN OF MERGER
1.1 Merger. The Acquirees shall be merged with and into NAV(the "Merger"),
and NAV shall be the surviving corporation (the "Surviving Corporation")
effective upon the later of the date when this Merger Agreement or a Certificate
of Merger is filed with the Secretaries of State of Colorado and Ohio or
December 31, 1998 (the "Effective Date").
1.2 Closing. The closing of the Merger (the "Closing") will take place on
or before December 16, 1998 at 10:00 a.m. MDT at the offices of ▇▇▇▇▇ ▇▇▇▇▇ &
▇▇▇▇▇ Professional Corporation, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, unless another date or place is agreed to in writing by the parties
hereto.
1.3 Succession. On the Effective Date, NAV shall continue its corporate
existence under the laws of the State of Colorado, and the separate existence
and corporate organization of LSI and CarWizard, except insofar as it may be
continued by operation of law, shall be terminated and cease.
1.4 Transfer of Assets and Liabilities. On the Effective Date, the rights,
privileges, powers and franchises, both of a public as well as of a private
nature, of each of the Constituent Corporations shall be vested in and possessed
by the Surviving Corporation, subject to all of the disabilities, duties and
restrictions of or upon each of the Constituent Corporations; and all singular
rights, privileges, powers and franchises of each of the Constituent
Corporations, and all property, real, personal and mixed, of each of the
Constituent Corporations, and all debts due to each of the Constituent
Corporations on whatever account, and all things in action or belonging to each
of the Constituent Corporations shall be transferred to and vested in the
Surviving Corporation; and all property, rights, privileges, powers and
franchises, and all and every other interest, shall be thereafter the property
of the Surviving Corporation as they were of the Constituent Corporations, and
the title to any real estate vested by deed or otherwise in either of the
Constituent Corporations shall not revert or be in any way impaired by reason of
the Merger; provided, however, that the liabilities of the Constituent
Corporations and of their stockholders, directors and officers shall not be
affected and all rights of creditors and all liens upon any property of either
of the Constituent Corporations shall be preserved unimpaired, and any claim
existing or action or proceeding pending by or against either of the Constituent
Corporations may be prosecuted to judgments as if the Merger had not taken place
except as they may be modified with the consent of such creditors and all debts,
liabilities and duties of or upon each of the Constituent Corporations shall
attach to the Surviving Corporation, and may be enforced against it to the same
extent as if such debts, liabilities and duties had been incurred or contracted
by it.
1.5 Manner of Accomplishing Merger. The Merger shall be accomplished by way
of the exchange of 100% (100 shares) of the issued and outstanding shares of LSI
for 125,000 shares of the common stock of NAV, 100% of the issued and
outstanding shares of CarWizard for an additional 125,000 shares of the Common
Stock of NAV. The transfer agent will automatically be instructed to issue new
certificates of NAV to each of the shareholders of LSI and CarWizard in
accordance with Exhibit A attached hereto, at the address listed in the register
of LSI shareholders. No fractional shares will be issued, but each fractional
share will be rounded up to the next share and a certificate for NAV will be
issued to each record holder of LSI accordingly. The exchange will be
accomplished pursuant to an exemption from registration provided by Section 4(2)
of the Securities Act of 1933.
1.6 Rights of Appraisal. This Merger shall be subject to the unanimous
approval by the Shareholders and there shall be no outstanding dissenter's or
appraisal rights.
1.7 Obligations of the Acquirees Not to Issue its Securities. As of the
date of this Merger Agreement and until the date of closing, the Acquirees shall
not issue any additional shares of its common stock to any person or entity
whatsoever, including as a result of having previously issued any warrants to
acquire common stock, any options to acquire its securities as a result of any
employee stock option plan or otherwise, or pursuant to any employee benefit
plan. The Acquirees further represent that the capitalization, as set forth in
paragraph C of the preamble to this Agreement, is true and accurate in all
respects.
1.8 Pre Effective Date Assignments. On the Effective Date the Acquirees
shall assign all existing accounts payable, all existing accounts receivable and
all cash or cash equivalents to the Shareholders who shall be responsible for
the payment of all Acquirees' debt accrued as of December 31, 1998 except the
Note Payable to the Computer Group, Inc. as defined in Section 5.2 which NAV
shall assume and pay.
2. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 Certificate of Incorporation and Bylaws. The Articles of Incorporation
of NAV in effect on the Effective Date shall continue to be the Articles of
Incorporation of the Surviving Corporation. The Bylaws of NAV shall be the
Bylaws of the Surviving Corporation, as they may be amended from time to time.
2.2 Directors. The directors of NAV immediately preceding the Effective
Date shall become the directors of the Surviving Corporation on and after the
Effective Date to serve until the expiration of their terms and until their
successors are elected and qualified and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ shall be appointed
as the seventh member of NAV's board of directors and so long as he is eligible,
shall be nominated for re-election at NAV's next annual meeting of shareholders.
2.3 Officers. The officers of NAV immediately preceding the Effective Date
shall remain the officers of the Surviving Corporation on and after the
Effective Date to serve at the pleasure of its Board of Directors.
3. REPRESENTATION AND WARRANTIES
3.1 Representations and Warranties by the Acquirees. As a material
inducement to NAV to execute and perform its obligations under this Agreement,
the Acquirees and the Shareholders hereby jointly and severally represent and
warrant to NAV that except as disclosed on Schedule 3.1:
(1) Organization and Standing of the Acquirees. The Acquirees are
corporations duly organized and validly existing and in good standing under the
laws of the State of Ohio. They have all requisite corporate power and authority
to carry on its business as now being conducted, to enter into this Agreement
and to carry out and perform the terms and provisions of this Agreement. The
Acquirees have no direct or indirect interest, either by way of stock ownership
or otherwise, in any other firm, corporation, association or business.
(2) Capitalization. The Acquirees are both duly and lawfully
authorized by its Articles of Incorporation, as amended, to issue 850 shares of
common stock, no par value per share, of which 100 shares of each Acquiree are
validly issued and outstanding on the date of this Agreement. LSI has 400 shares
of treasury stock. All of the outstanding shares of the Acquirees' common stock
have been duly authorized and validly issued and are fully paid and
nonassessable. There are no outstanding subscriptions, options, warrants, calls,
contracts, demands, commitments, convertible securities or other agreements or
arrangements of any character or nature whatever under which the Acquiree is or
may be obligated to issue or purchase shares of its capital stock.
(3) Ownership of the Acquirees' Common Stock. The shares of the
Acquirees' common stock are held by the Shareholders in the amounts set forth
opposite their signatures.
(4) The Acquirees' Authority. The execution, delivery and performance
of this Agreement shall have been duly authorized by all requisite corporate
action. This Agreement constitutes a valid and binding obligation of the
Acquirees and the Shareholders enforceable in accordance with its terms (except
as limited by bankruptcy, insolvency or other laws affecting the enforcement of
creditors' rights). No provision of the Articles of Incorporation or any
amendments thereto, Bylaws or any amendments thereto, minutes or share
certificates of the Acquirees, or of any contract to which the Acquirees are a
party or otherwise bound, prevents the Shareholders from delivering good title
to their shares of such capital stock in the manner contemplated herein.
(5) Due Diligence. The Acquirees have furnished NAV with all
financial, corporate and business records requested by NAV.
(a) Financial Statements. The financial statements furnished by
the Acquirees were prepared in accordance with generally accepted accounting
principles applied on a consistent basis and present fairly the financial
condition of the Acquirees at such dates and the results of its operations for
the periods therein specified. Specifically, but not by way of limitation, the
financial statements presented disclose all of the assets, debts, liabilities
and obligations of any nature (whether absolute, accrued, contingent or
otherwise and whether due or to become due) of the Acquirees at the date thereof
and include appropriate reserves for all taxes and other liabilities accrued or
due at such date, but not yet payable. Except as may have been disclosed to NAV,
there has not been any material change to the financial condition of the
Acquirees since the date of the last financial statements delivered.
(b) Litigation. Except as may have been disclosed to NAV in
writing, there are no legal actions, suits, arbitrations or other legal or
administrative proceedings pending or threatened against the Acquirees which
would materially affect it or its properties, assets or business; and the
Acquirees are not aware of any facts which to its knowledge might result in any
action, suit, arbitration or other proceeding which in turn might result in any
material adverse change in the business or condition (financial or otherwise) of
the Acquirees or their properties or assets. The Acquirees are not in default
with respect to any judgment, order or decree of any court or any government
agency or instrumentality.
(c) Compliance With the Law and Other Instruments. To the best of
the Acquirees' knowledge, the business operations of the Acquirees have been and
are being conducted in material compliance with all applicable laws, rules and
regulations of all authorities. The Acquirees are not in violation of, or in
default under, any term or provision of its Articles of Incorporation, as
amended, or its Bylaws, as amended, or of any license, lien, mortgage, lease,
agreement, instrument, order, judgment or decree, or subject to any restriction,
contained in any of the foregoing, of any kind or character which materially
adversely affects in any way the business, properties, assets or prospects of
the Acquirees, or prevents consummation of the exchange of securities
contemplated by this Agreement.
(d) Title to Properties and Assets. The Acquirees have good and
marketable title to all their properties and assets, including without
limitation those reflected in the Acquirees' financial statements and those used
or located on property controlled by the Acquirees, subject to no mortgage,
pledge, lien, charge, security interest, encumbrance or restriction except a
security interest granted to the Computer Group, Inc. by LSI pursuant to the
Promissory Note defined in Section 5.2. The buildings and equipment of LSI are
in good condition and repair, reasonable wear and tear excepted. LSI has not
been, to the knowledge of any officer of LSI, threatened with any action or
proceeding under any building or zoning ordinance, regulation. Neither LSI or
CarWizard own and they are not therefore conveying title to all intellectual
property rights in and to the book, Look Before You Lease: Secrets to Smart
Vehicle Leasing (Library of Congress Catalog Card Number 97-76990 and previous
editions) and intellectual property rights in and to the LeaseWizard(R)Lease and
Loan Software and related trademarks belonging to ▇▇▇▇▇▇▇ Enterprises, Inc.
(e) Contracts and Other Obligations. The Acquirees have provided
NAV with copies of all material contracts to which it is a party, including all
leases for real or personal property. The Acquirees have in all material
respects performed all obligations required to be performed by it to date and is
not in material default under any of the contracts to which it is a party or by
which it is otherwise bound. To the best of Acquirees' knowledge, all parties
with whom the Acquirees have contractual arrangements are in material compliance
therewith and are not in default thereunder, except as otherwise disclosed to
NAV.
(f) Records. The books of account, minute books, stock
certificate books and stock transfer ledgers of the Acquirees are complete and
correct, and there have been no transactions involving the business of the
Acquirees which properly should have been set forth in the respective books,
other than those set forth therein.
(6) Brokers or Finders. All negotiations on the parts of the Acquirees
relative to this Agreement and the transactions contemplated hereby have been
carried on by the Acquirees without the intervention of any person or as the
result of any act of the Acquirees in such manner as to give rise to any valid
claim against the Acquirees, NAV or the Shareholders for a brokerage commission,
finder's fee or other like payment.
(7) Taxes. The Acquirees have duly filed all federal, state, county
and local income, franchise, excise, real and personal property and other tax
returns and reports (including, but not limited to, those relating to social
security, withholding, unemployment insurance and occupation (sales) and use
taxes) required to have been filed by the Acquirees up to the date hereof. All
of the foregoing returns are true and correct in all material respects and the
Acquirees have paid all taxes, interest and penalties shown on such returns or
reports as being due. The Acquirees have paid or made adequate provision in the
Acquirees' financial statements or its books and records for all taxes payable
in respect of all periods ending on or before the date hereof. The Acquirees
have no material liability for any taxes, interest or penalties of any nature
whatsoever, except for those taxes which are not yet due.
(8) Indemnification Liabilities. There are no existing liabilities or
facts known to the Acquirees which would require the Acquirees to indemnify
their officers or directors for acts or omissions by such persons acting on
behalf of the respective companies.
(9) Full Disclosure. The Acquirees and the Shareholders have made full
disclosure to NAV concerning all material elements of the business of the
Acquirees.
3.2 Representations and Warranties by NAV. As a material inducement to the
Acquirees and the Shareholders to execute and perform their obligations under
this Agreement, NAV hereby represents and warrants that except as disclosed in
NAV's Financial Statements or on Schedule 3.2:
(1) Organization and Standing of NAV. NAV is a corporation duly
organized and validly existing and in good standing under the laws of the State
of Colorado. It has all requisite corporate power and authority to carry on its
business as now being conducted, to enter into this Agreement and to carry out
and perform the terms and provisions of this Agreement. NAV has no direct or
indirect interest, either by way of stock ownership or otherwise, in any other
firm, corporation, association or business.
(2) Capitalization. NAV is duly and lawfully authorized by its
Articles of Incorporation, as amended, to issue 20,000,000 shares of common
stock, no par value per share. 3,606,221 shares of the common stock are issued
and outstanding as of the date hereof. NAV has no treasury stock and no other
authorized series or class of stock. All the outstanding NAV common shares have
been duly authorized and validly issued and are fully paid and nonassessable and
free of preemptive rights. There are outstanding subscriptions, options,
warrants and other agreements or arrangements under which NAV is or may be
obligated to issue or purchase shares of its capital stock.
(3) NAV's Authority. The execution, delivery and performance of this
Agreement shall have been duly authorized by all requisite corporate action.
This Agreement constitutes a valid and binding obligation of NAV enforceable in
accordance with its terms (except as limited by bankruptcy, insolvency or other
laws affecting the enforcement of creditors' rights). No provision of the
Articles of Incorporation and any amendments thereto, Bylaws and any amendments
thereto, minutes or share certificates of NAV, or of any contract to which NAV
is a party or otherwise bound, prevents NAV from delivering good title to the
shares of common stock to be issued pursuant to this Agreement.
(4) Brokers or Finders. All negotiations on the part of NAV relative
to this Agreement and the transactions contemplated hereby have been carried on
by NAV without the intervention of any person or as the result of any act of NAV
in such manner as to give rise to any valid claim against NAV, the Acquirees or
the Shareholders for a brokerage commission, finder's fee or other like payment.
(5) Financial Statements. NAV has furnished to the Acquirees its
audited balance sheets as of December 31, 1997 and 1996, its audited statements
of income and retained earnings and cash flows for each of the three years ended
December 31, 1997, its unaudited balance sheet as of September 30, 1998, and its
unaudited statements of income and cash flows for the nine months ended
September 30, 1998 (collectively, the "NAV Financial Statements"). All of the
NAV Financial Statements present fairly the financial position of NAV as of the
respective balance sheet dates, and the results of its operations and cash flows
for the respective periods therein specified. The NAV Financial Statements were
prepared in accordance with generally accepted accounting principles applied
upon a basis consistent with prior accounting periods.
(6) Litigation. Except as disclosed in the NAV Financial Statements or
in Schedule 3.2, there are no legal actions, suits, arbitrations, or other legal
or administrative proceedings pending or threatened against NAV which would
reasonably be expected to have a material adverse effect upon it, its
properties, assets, or business; and NAV is not aware of any facts which to its
knowledge would reasonably be expected to result in any action, suit,
arbitration, or other proceeding which in turn would reasonably be expected to
result in any material adverse change in the business or condition (financial or
otherwise) of NAV or its properties or assets. NAV is not in default of any
judgment, order, or decree of any court or, in any material respect of, any
requirements of a government agency or instrumentality, except as set forth in
the NAV Financial Statements.
(7) Compliance With the Law and Other Instruments. To the best of
NAV's knowledge, the business operations of NAV have been and are being
conducted in substantial compliance with all applicable laws, rules, and
regulations of all authorities. NAV is not in violation of, or in default under,
any term or provision of its Certificate of Incorporation, as amended, or its
Bylaws, as amended, or in any material respect of any lien, mortgage, lease,
agreement, instrument, order, judgment, or decree, or subject to any
restriction, contained in any of the foregoing, of any kind or character which
materially adversely affects the business, properties, assets, or prospects of
NAV, or which would prohibit NAV from entering into this Agreement.
(8) Title to Properties and Assets. NAV has good and marketable title
to all of its material properties and assets, including without limitation those
reflected in the NAV Financial Statements and those used or located on property
controlled by NAV in its business (except assets leased or sold in the ordinary
course of business), subject to no mortgage, pledge, lien, charge, security
interest, encumbrance, or restriction except those which (a) are disclosed in
the NAV Financial Statements as securing specified liabilities; or (b) do not
materially adversely affect the use thereof.
(9) Records. The books of account, minute books, stock certificate
books, and stock transfer ledgers of NAV are complete and correct, and there
have been no transactions involving the business of NAV which properly should
have been set forth in said respective books, other than those set forth
therein.
(10) Absence of Certain Changes or Events. Since September 30, 1998,
there has not been any material adverse change in, or event or condition
materially and adversely affecting the condition (financial or otherwise),
properties, assets, liabilities or, to the knowledge of NAV, the business or
prospects of NAV, except for conditions generally affecting the segments of the
oil and gas industry in the locales in which NAV conducts its business.
(11) Taxes. NAV has duly filed all federal, state, county and local
income, franchise, excise, real and personal property and other tax returns and
reports (including, but not limited to, those relating to social security,
withholding, unemployment insurance, and occupation (sales) and use taxes)
required to have been filed by NAV up to the date hereof. All of the foregoing
returns are true and correct in all material respects and NAV has paid or
provided for all taxes, interest and penalties shown on such returns or reports
as being due. NAV has no liability for any material amount of taxes, interest or
penalties of any nature whatsoever, except for those taxes which may have arisen
up to the Closing Date in the ordinary course of business and are properly
accrued on the books of NAV as of the Closing Date.
(12) Full Disclosure. To NAV's knowledge and belief, this Agreement,
NAV's periodic public reports filed with the SEC pursuant to the requirements of
the Exchange Act, and any schedules and certificates delivered by NAV in
connection herewith or with the transactions contemplated hereby, taken as a
whole, neither contain any untrue statement of a material fact nor omit to state
any material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading. To NAV's knowledge and belief, there are no facts which
(individually or in the aggregate) materially adversely affect the business,
assets, liabilities, financial condition or operations of NAV that have not been
set forth in this Agreement, the Schedules hereto, the periodic public reports
of NAV or in other documents delivered by NAV in connection herewith or
disclosed orally by an executive officer of NAV.
3.3 Representations and Warranties of the Shareholders. In connection with
the establishment of the availability of an exemption from registration under
the Act and the securities laws of the state of Ohio, the Shareholders make the
following representations and warranties to NAV:
(1) The Shareholders own free and clear of any mortgage, lien, claim
or rights of any third party whatsoever the shares being acquired by NAV in this
Merger and no consent or authority of any other party is required to convey
clear title thereto.
(2) The Shareholders are aware and understand that there are
substantial investment risks incident to acquisition of the NAV Shares. No
federal or state agency has made any finding or determination as to the fairness
of the Share Exchange, nor any recommendation or endorsement, of the NAV Shares.
(3) The Shareholders acknowledge that the NAV Shares have not been
registered under the Act or the blue sky laws of any state and, therefore,
cannot be resold unless they are subsequently registered under the Act or
applicable state blue sky laws or an exemption from such registration is
available and a favorable opinion of counsel satisfactory to NAV to that effect
is obtained. Certificates evidencing ownership of the NAV Shares will be
endorsed with a legend providing that the transfer thereof is restricted, except
in compliance with the Act.
(4) Each of the Shareholders has been furnished all materials and
information he desires on NAV, its current and proposed activities and the
offering of the NAV Shares to enable him to make an informed investment
decision.
(5) The Shareholders have had the opportunity to ask questions of and
receive answers from NAV and its management and to obtain any additional
information necessary to verify the accuracy of the information received
concerning NAV and the Share Exchange.
(6) Each Shareholder is acquiring the NAV Shares for investment
purposes only and not with a view to any "distribution" of such shares within
the meaning of the Securities Act except in compliance with the provisions
thereof.
(7) Each Shareholder has such knowledge and experience in financial,
investment and business matters that he is capable of evaluating the merits and
risks of his acquisition of the NAV Shares and of making an informed decision in
acquiring such shares.
4. NATURE AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES
For purposes of this Article 4 only, any party or other person seeking to
enforce, or claiming the benefit of, any representation and warranty hereunder
is called a Claimant, and any party or other person against which right is
claimed is called a Defendant. All representations and warranties of the parties
shall survive the Closing and all inspections, examinations or audits on behalf
of the parties; provided however that all representations and warranties shall
terminate and expire, and be without further force and effect whatever from and
after one year from the date of the Closing, hereinafter referred to as the
Expiration Date, and neither party hereto shall have liability whatsoever on
account of any inaccurate representation or warranty or for any breach of
warranty, unless Claimant shall on or prior to such date, serve written notice
on Defendant, with a copy to Defendant's counsel herein, setting forth in
reasonable detail any claims (and to the extent possible an estimate of the
damages) which Claimant may have under this Agreement.
5. OTHER AGREEMENTS
5.1 Earn-Out Provision. The current shareholders of CarWizard and
LeaseSource shall receive a distribution of profits from the continuing
operation of LeaseSource and CarWizard through the end of the year 2000 ("Earn
Out"). The Earn Out shall be calculated solely with reference to Exhibit 5.1.
The Earn Out at the end of calendar year 1999 shall be equal to 60% of the
difference between the "Earn Out Amount" set forth in Exhibit 5.1 and $275,000.
The Earn Out at the end of calendar year 2000 shall be equal to 55% of the
difference between the "Earn Out Amount" set forth in Exhibit 5.1 and $300,000,
provided the previous year's Earn Out Amount was equal to or greater than
$275,000. The Earn Out shall be paid to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, who shall be
responsible for dividing said amounts between himself and his wife based upon
their shares in LeaseSource and CarWizard.
5.2 Indemnification of Personal Liability. As part of the consideration to
shareholders of LSI, Navidec shall assume and indemnify ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ against
any personal liability pursuant to a Promissory Note dated October 18, 1997
executed by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ for the benefit of The Computer Group as Payee in
the amount of $100,000.
5.3 Board of Directors. Upon Closing, the NAV directors shall cause the
Board of Directors to be enlarged to seven directors and the vacancy created by
such enlargement shall be filled by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇. ▇▇. ▇▇▇▇▇▇▇ shall be
nominated as a director at NAV next annual meeting of shareholders so long as he
qualifies for a director seat without adverse disclosure requirements.
5.4 Employment Agreement. At Closing, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ shall be offered
an employment agreement substantially in the form attached as Schedule 5.4.
Additionally, at Closing ▇▇▇▇▇▇▇ shall be reimbursed for expenses related to his
family's relocation to the Denver, Colorado metro area in an amount not to
exceed $15,000.
6. MISCELLANEOUS
6.1 Termination. This Agreement may be terminated at any time prior to the
Effective Time, by action taken or authorized by the Board of Directors of the
terminating party or parties, whether before or after approval of the matters
presented in connection with the Merger by the shareholders of NAV or LSI or
CarWizard:
(a) By mutual written consent of NAV and the Acquirees, by action of their
respective Boards of Directors;
(b) By either the Acquirees or NAV if the Effective Time shall not have
occurred on or before the elapse of one month from the date of this Agreement
(the "Termination Date"); provided, however, that the right to terminate this
Agreement under this Section 6.1(b) shall not be available to any party whose
failure to fulfill any obligation under this Agreement (including without
limitation Section 4.3) has to any extent been the cause of, or resulted in, the
failure of the Effective Time to occur on or before the Termination Date.
6.2 Amendment. This Agreement may be amended by the parties hereto, by
action taken or authorized by their respective Boards of Directors, at any time
before or after approval of the matters presented in connection with the Merger
by the shareholders of the Acquirees. This Agreement may not be amended except
by an instrument in writing signed on behalf of each of the parties hereto.
6.3 Extension; Waiver. At any time prior to the Effective Time, the parties
hereto, by action taken or authorized by their respective Boards of Directors,
may, to the extent legally allowed, (i) extend the time for the performance of
any of the obligations or other acts of the other parties hereto, (ii) waive any
inaccuracies in the representations and warranties contained herein or in any
document delivered pursuant hereto and (iii) waive compliance with any of the
agreements or conditions contained herein. Any agreement on the part of a party
hereto to any such extension or waiver shall be valid only if set forth in a
written instrument signed on behalf of such party. The failure of any party to
this Agreement to assert any of its rights under this Agreement or otherwise
shall not constitute a waiver of those rights.
6.4 Assignment. Neither this Agreement nor any right created hereby shall
be assignable by the parties hereto without the prior written consent of the
others, except by the laws of succession. Nothing in this Agreement, as
expressly set forth herein, is intended to confer upon any person, other than
the parties hereto and their respective successors, assigns, heirs, executors,
administrators or personal representations, any rights or remedies under or by
reason of this Agreement.
6.5 Notices. Any notice, communication, request, reply or advice,
hereinafter severally and collectively called "notice," in this Agreement
provided or permitted to be given, made, or accepted by either party to the
other must be in writing and may be given or be served by depositing the same in
the United States mail, addressed to the party to be notified, postage prepaid
and registered or certified with return receipt requested, or by delivering the
same in person to an officer of such party. Notice deposited in the mail in the
manner hereinabove described shall be effective only if and when received by the
parties to be notified. For purposes of notice the addresses of the parties
shall, until changed as hereinafter provided, be as follows:
(1) If to NAV:
▇▇▇▇▇ ▇▇▇▇▇▇, President
Navidec, Inc.
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇. ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ Professional Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(2) If to LSI, CarWizard or the Shareholders:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to :
[--------------]
6.6 Parties in Interest. This Agreement shall be binding on and inure to
the benefit of the parties hereto, their respective heirs, executors,
administrators, legal representatives, successors and assigns except as
otherwise expressly provided herein.
6.7 Attorneys' Fees. If any action at law or inequity, including an action
declaratory relief, is brought to enforce or interpret the provisions of this
Agreement, the prevailing party shall be entitled to recover reasonable
attorney's fees from the other party, which fees may be set by the court in the
trial of such on or may be enforced in a separate action brought for that
purpose, and which fees shall be in addition to any other relief which may be
awarded.
6.8 Governing Law. This Agreement shall be governed by the laws of the
State of Colorado. Any action brought to enforce this Agreement or any term
thereof shall be brought in a court of competent jurisdiction in Denver,
Colorado and each party hereto affirmatively agrees to submit to the
jurisdiction in that city and state.
6.9 Severability. In case any provision of this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
6.10 Counterparts. This Agreement and all other copies of this Agreement
insofar as they relate to the rights, duties and remedies of parties, shall be
deemed to be one agreement. This Agreement may be executed concurrently in one
or more counterparts, each which shall be deemed an original, but all which
together shall constitute one and the same instrument. Facsimile signatures
shall be treated as original until replaced by the original copy which shall
then be substituted.
6.11 Integrated Agreement. This Agreement constitutes the entire agreement
between the parties hereto, and there are no agreements, understandings,
restrictions, warranties or representations between the parties other than those
set forth herein or herein provided for.
IN WITNESS WHEREOF, this Agreement and Plan of Share Exchange has been
executed the day and year set forth above.
NAVIDEC, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
LEASESOURCE ONLINE, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
CARWIZARD, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
SHAREHOLDERS OF LEASESOURCE ONLINE, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ... 51 shares
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ ... 49 shares
SHAREHOLDERS OF CARWIZARD, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ... 100 shares
