Exhibit 10.1
AGREEMENT
Agreement (the "Agreement") made this 28th day of February, 2005 by and
among Defense Technology Systems, Inc., a Delaware corporation with offices at
000X Xxxxxx Xxxxxxxxx, Xxxxxxxxx, XX 00000 ("DFTS"), New Market Technology,
Inc., a Nevada corporation with offices at 00000 Xxxxxxxx Xxxxx, Xxxxxx, XX
00000 ("NMKT") and Digital Computer Integration Corporation, a Texas corporation
with offices at 0000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxx, XX 00000 ("DCI")
WHEREAS, NMKT presently owns or has the right to acquire a 51% ownership
interest in the common stock of DCI; and
WHEREAS, NMKT wishes to transfer and exchange its stock in DCI to DFTS
solely in exchange for certain preferred stock of DFTS, it being intended that
the said transaction will qualify under ss.368 of the Internal Revenue Code of
1986, as amended, as a tax free exchange of stock; and
WHEREAS, in order for the proposed transaction to proceed, DFTS requires
that both NMKT and DCI make certain representations and warranties concerning
the proposed transaction which both NMKT and DCI are willing to do.
NOW, THEREFORE, in consideration of the provisions and covenants herein
contained, the parties hereto agree as follows.
1 Tax Free Exchange
.1 NMKT and DCI hereby represent that NMKT presently owns or has the right
to acquire on or before the Closing Date (as hereinafter defined) 2,393,878
shares of the common voting stock of DCI representing 51% of the total issued
and outstanding common stock of DCI ("DCI Stock Interest"). NMKT and DCI further
represent that there is only one class of stock that DCI has the authority to
issue that being common stock with each share of stock entitled to one vote.
.2 Creation by DFTS of Class C and D Preferred Stock. DFTS hereby agrees
that on or before the Closing Date it shall cause to be created $1.50 Class C
convertible preferred stock and $1.50 Class D preferred stock, having such
rights, preferences and designations as set forth in the Certificates of
Designation attached hereto as Exhibits A and B, respectively and which are made
a part of this Agreement. The parties recognize that although the $1.50 Class C
preferred stock to be issued by DFTS will be convertible into common stock of
DFTS, that at present DFTS does not have a sufficient number of authorized but
unissued shares of common stock to permit this conversion. DFTS hereby agrees,
in good faith, to take appropriate steps to attempt to cause its corporate
charter to be amended to authorize an increase in its common stock from
40,000,000shares, .001 par value to 200,000,000 shares, .001 par value and to
authorize an increase in its preferred stock from 5,000,000 shares, .01 par
value to 20,000,000, .01 par value. However, the inability of DFTS to accomplish
this amendment will not affect the validity of this Agreement.
.3 Exchange of Stock. NMKT hereby agrees to transfer and exchange its DCI
Stock Interest to DFTS solely in exchange for the shares of newly created
classes of DFTS's preferred stock as follows: (a) 600,000 shares of $1.50 Class
C convertible preferred and (b) 3,400,000 shares of $1.50 Class D preferred.
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.4 Tax Free Status. DFTS and NMKT agree that it is their mutual intention
for the exchange of stock set forth in Section 1.3 above to be accomplished, if
possible, in such manner as to qualify under ss.368 of the Internal Revenue Code
of 1986, as amended, as a tax free exchange. However, the failure or inability
of either or both DFTS and/or NMKT to have the transaction qualify as a tax free
exchange will not affect on the validity of this Agreement. DFTS and NMKT agree
to cooperate with each other and provide such documentation as may be
appropriate to claim the desired tax status.
2 Further Agreements of NMKT.
.1 Investment Strategy. In order to strengthen DFTS and improve the value
of the stock investment being made by NMKT, the latter has agreed, on a best
efforts basis, to attempt to secure additional equity financing for DFTS in an
approximate amount of Five Million ($5,000,000) Dollars. The terms of such
equity financing will be a matter of negotiation between DFTS and prospective
investors. The parties agree that the inability of NMKT to secure such financing
will not affect the validity of this Agreement. In addition, NMKT, on a non
compensatory basis, will make available its president, Xxxxxx Xxxxxx, to explain
to the investment community and prospective investor, the benefits to be derived
by an investment in DFTS.
.2 Addition to DFTS' Board of Directors. NMKT will cause its president,
Xxxxxx Xxxxxx, to accept a position on the Board of Directors of DFTS to serve
for a minimum period of two (2) years and NMKT agrees, subject to the provision
of Section 2.3 below, to vote all of the preferred stock it will receive from
DFTS under this Agreement, to elect and retain Xx. Xxxxxx as a director of DFTS
for such minimum period.
.3 Irrevocable Proxy. NMKT hereby agrees and this provision shall be self
executing, that upon receipt by NMKT of the preferred stock to be issued by DFTS
under this Agreement, it has granted to Messrs. Xxxxxx XxXxxx, Xxxxxx Xxxxx and
Xxxxxx Xxxxxx, acting by majority vote, an irrevocable proxy coupled with an
interest to vote all of the DFTS preferred stock that will be issued to NMKT
under this Agreement. In the event that either Xx. XxXxxx or Xx. Xxxxx dies or
is unable to act or declines to act, the remaining proxy holders may act, by
unanimous vote if there are two proxy holders or by a single vote if there is
only one proxy holder. It is understood that upon the death of Xx. Xxxxxx or
upon his inability or declination to act, NMKT may appoint a successor proxy
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holder for Xx. Xxxxxx. Furthermore, if any one of the proxy holders is no longer
an officer, director or employee of DFTS or NMKT, that person may no longer be
entitled to be a proxy holder and the remaining proxy holders may vote.
Notwithstanding the foregoing, if Xx. Xxxxxx ceases to be an officer, director
or employee of NMKT, that company may appoint a successor proxy holder for Xx.
Xxxxxx. Said proxy may not be cancelled or rescinded by NMKT and shall remain
fully effective until the earlier of (a) three (3) years from the issuance of
the said preferred stock; (b) upon a permitted conversion, if any, of the
preferred stock into common stock; or (c) upon a permitted redemption by DFTS of
the preferred stock. If there is only a partial conversion or redemption of the
said preferred stock, the balance of the preferred stock not so converted or
redeemed shall remain subject to the said irrevocable proxy. At the Closing
Date, NMKT will execute such forms as may be reasonably satisfactory to legal
counsel of DFTS to memorialize the said irrevocable proxy. However, even if said
forms are not so executed, the irrevocable proxy coupled with an interest shall
nevertheless remain in full force and effect by virtue of the terms of this
Agreement.
3 Representations, Warranties and Covenants of DFTS. DFTS represents,
warrants and covenants to NMKT as follows:
.1 Organization of DFTS. DFTS is a corporation duly organized, valid
existing and in good standing under the laws of the State of Delaware and has
all requisite corporate and other power, authority and legal right to own, lease
and operate the properties used in its business, to carry on its business as
presently conducted and to execute, deliver and perform its obligations under
this Agreement. DFTS is qualified or licensed as a foreign corporation in each
jurisdiction or place in which it owns or leases real property or in which it
transacts business and where the nature of the business transacted legally
requires such registration or qualification and the failure to be so registered
or qualified could have a material adverse effect on the business or financial
condition of DFTS.
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.2 Corporate Documents. DFTS has heretofore furnished to NMKT complete and
correct copies of DFTS' Certificate of Incorporation, as amended to date,
certified by the Secretary of State of Delaware and DFTS's By-Laws, as currently
in effect, certified by the Secretary of DFTS.
.3 Authorization of Agreement. The execution, delivery, and performance of
this Agreement by DFTS has been duly and validly authorized and approved by the
Board of Directors of DFTS. This Agreement constitutes the legal, valid and
binding obligations of DFTS, enforceable against DFTS in accordance with the
terms of this Agreement. DFTS has taken or will take all action required by law,
its Certificate of Incorporation and By-Laws to authorize the execution,
delivery and performance of this Agreement and all other documents and
certificates as may be required to consummate the transactions contemplated
hereby.
.4 No Breach of Statute or Contract; Governmental Authorization.
.1 Neither the execution and delivery of this Agreement, nor compliance by
DFTS with the terms and provisions of the same, nor the consummation of the
transactions contemplated hereby , will:
.1 conflict with or result in a breach of or constitute or result in a
default under any of the terms, conditions or provisions of its Certificate of
Incorporation, By-Laws or other governing instruments or any judgment, order,
injunction, decree, regulation or ruling of any court or governmental authority,
domestic or foreign, to which it is subject or of any agreement, contract or
commitment to which it is a party or otherwise bound; or
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.2 give to others any rights of termination, cancellation or acceleration,
with respect to any of such agreements, contracts or commitments.
.2 DFTS will submit all notices, reports and other filing with the SEC in
connection with its execution and consummation of the transactions as
contemplated by this Agreement. However, DFTS is not required to obtain the
consent or approval of any governmental authority in connection therewith.
.5 Capital Stock of DFTS. The authorized capital stock of DFTS consists of
40,000,000 shares of common stock, par value $.001 per share of which
approximately 36,000,000 are issued and outstanding and 5,000,000 shares of
preferred stock, par value $.01 per share, of which _________ shares of Class A
preferred stock and _______ shares of Class B stock are issued and outstanding.
No shares of such capital stock are held in the treasury of DFTS. DFTS does not
own stock in and does not control, directly or indirectly, any corporation,
association or business organization. DFTS is not a party to any joint venture
or partnership agreement. All shares of the Class C and Class D preferred stock
that will be issued to NMKT hereunder will, when issued, be duly authorized,
validly issued and outstanding, fully paid, and nonassessable, and no person
shall have any preemptive rights in respect thereof. Except as set forth in
Schedule ___ to this Agreement, there is outstanding no security, option,
warrant, right, call, subscription, agreement, commitment, or understanding,
fixed or contingent, that directly or indirectly (i) calls for the issuance of,
or the granting of rights to acquire, any common or preferred stock of DFTS, or
any securities convertible into any such stock of DFTS, (ii) obligates DFTS to
grant, offer or enter into any of the foregoing, or (iii) relates to the voting
or control of such capital stock, securities or rights.
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.6 Financial.
.1 DFTS has furnished to NMKT true and complete copies of its latest 10K
Statement filed with the Securities and Exchange Commission ("SEC") for the
annual period ending June 30, 2004 and its latest 10Q Statement filed with the
SEC for the quarter-annual period ended December 31, 2004. Both of said
statements contain the latest financial statements of DFTS for the periods
indicated on said financial statements which have been prepared in conformity
with generally accepted accounting principles applied on a basis consistent with
prior periods ("DFTS Financial Statements"). The balance sheet of DFTS furnished
to NMKT present fairly the financial position of DFTS as at the date thereof,
and the related statements of income and retained earnings and changes in
financial position to DFTS furnished to NMKT present fairly the results of the
operations and changes in the financial positions for DFTS for the periods
indicated. For the purpose of this Agreement, all financial statements referred
to in this Section shall be deemed to include any notes to such financial
statements.
.2 Except as specifically reflected or disclosed on Schedule ___ or in
DFTS' 10K and 10Q Statements, or in the DFTS Financial Statements, there are no
claims against or liabilities or obligations of DFTS which individually or in
the aggregate (i) might result in a material decrease in the stockholders'
equity of DFTS from that shown in the DFTS Financial Statement; or (ii) might
result in a material charge against the annual net income of DFTS; or (iii)
might result in or cause any material adverse change in the financial condition,
results of operations, business or prospects of DFTS.
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.3 Since the date of the latest DFTS Financial Statements, except as
disclosed on Schedule 3.6.3, whether or not in the ordinary course of business,
there has not been, occurred or arisen:
.1 any material adverse change in the financial condition, results of
operations, business or prospects of DFTS; or
.2 any damage or destruction in the nature of a casualty loss, whether
covered by insurance or not, adversely affecting any property or business of
DFTS which is material to the financial condition, results of operations,
business or prospects of DFTS; or
.3 any increase in excess of $10,000 in compensation payable or to become
payable to DFTS to its directors, officers, management personnel, consultants or
agents, whether in the form of fees, salaries, bonuses or any other form of
compensation, or any increase in benefits under any bonus, insurance, pension or
other benefit plan made for or with any of such persons and no deferred salary
or similar obligations; or
.4 any actual or threatened strike or other labor trouble or dispute which
materially and adversely affects, or might materially and adversely affect, the
financial conditions, results of operations, business or prospects of DFTS; or
.5 any direct or indirect redemption, purchase or other acquisition by DFTS
of any shares of DFTS' stock, or any declaration, setting aside or payment of
any dividend or other distribution of DFTS in respect to its stock.
.4 Since the date of the latest DFTS Financial Statements, except as
indicated on Schedule 3.6.4, DFTS has not engaged in any transaction material to
the financial condition, results of operations, business or prospects of DFTS
not in the ordinary course of its business.
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.5 In all material respects, the books, records and accounts of DFTS
accurately and fairly reflect, in reasonable detail, the transactions and
dispositions of the assets of DFTS.
.7 Inventories. In all material respects, (i) the inventories shown as of
the date of the latest DFTS Financial Statement and any inventories thereafter
acquired by DFTS prior to the Closing Date consist, and will consist, of items
of a quality and quantity usable or saleable in the normal course of DFTS'
business; (ii) the value of all items of obsolete materials and all items of
below standard quality has been written down to realizable market value or
adequate reserves have been provided for such materials; and (iii) the values at
which such inventories are carried reflect the normal inventory valuation policy
of DFTS.
.8 Accounts Receivable. All accounts receivable reflected on the date of
the latest DFTS Financial Statements and any accounts receivable thereafter
acquired by DFTS prior to the Closing Date constitute, and will constitute, bona
fide receivables resulting from bona fide transactions in the ordinary course of
DFTS' business.
.9 Buildings and Equipment. The buildings, machinery and equipment owned or
used by DFTS are adequate for the conduct of DFTS' business as such business
presently is conducted and are in normal operating condition and repair,
ordinary wear and tear excepted, and free from any known defects except such
minor defects as do not substantially interfere with the continued use thereof
in the conduct of normal operations.
.10 Tax Returns and Reports. Except as specified in Schedule 3.10, all
required federal, state and local tax returns and tax reports and sales tax
reports have been filed and all required taxes have been paid.
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.11 Title to Properties. Except as specified in Schedule 3.11, DFTS has
good and marketable title or other ownership interest adequate for the conduct
of its operations and business in all of its assets (including capitalized lease
agreements, if any), in each case, free and clear of all mortgages, liens,
pledges, restrictions, charges or encumbrances of any nature whatsoever, except
(i) liens for current taxes which are not yet due and payable or are being
contested in good faith in appropriate proceedings, (ii) liens of carriers,
warehousemen, mechanics, laborers and material men incurred in the ordinary
course of business for sums not yet due, and (iii) such other encumbrances and
imperfections of title, if any, as in the aggregate, are not substantial in
character, amount or extent, and do not materially detract from the value or
interfere with the use of the properties of the purposes for which they are
presently used or otherwise materially impair business operations.
.12 Agreements, Contracts and Commitments.
.1 Except as set forth in Schedule 3.12, DFTS does not have in effect and
is not a party to:
.1 any Welfare Plan or Pension Plan Profit Sharing Plan, except for routine
life and disability insurance plans which may be cancelled on not more than
thirty (30) days notice; or
.2 any research, development, license, consulting, distribution or sales
agency agreement, contract or commitment with any person involving aggregate
payment by or to DFTS in excess of $10,000 or extending beyond 12 months from
the date hereof; or
.3 any agreement, contract or commitment relating to capital expenditures
and involving future payments of $10,000 or more in any one instance or $50,000
or more in the aggregate; or
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.4 any agreement, indenture or other instrument relating to the money or
the guarantee of any obligation for, to service the repayment of, borrowed
money; or
.5 any lease with a term of more than one year or requiring payments of
$10,000 or more;
.6 any agreement, commitment relating to the future disposition of any
interest in any business enterprise; or
.7 any agreement, commitment (other than purchase orders in the ordinary
course of business) for the production and sale, or product or material by DFTS
requiring $20,000 or more to, or by, DFTS; or
.8 any other agreement, contract or commitment or performance or surety
bond not entered into in the ordinary course of business and involving an
aggregate payment by or to DFTS in excess of $10,000 or not terminable within
four months without payment of a penalty greater than $10,000 by DFTS.
.13 Licenses and Permits. Schedule 3.13 contains a list of all licenses,
franchises, permits and other governmental authorizations held by DFTS that are
material in connection with the ownership and conduct of the business of DFTS.
Each of such licenses, franchises, permits and other governmental authorizations
is valid and in good standing. The governmental authorizations set forth on
Schedule ___ constitute all governmental authorizations necessary for all
businesses currently carried on by DFTS.
.14 Litigation. Except as set forth on a schedule previously delivered by
DFTS to NMKT (which has been initialed by both parties), there are no suits,
actions or legal, administrative, arbitration or other proceedings and
governmental investigations involving DFTS pending or, to the knowledge of DFTS,
threatened. DFTS is not in default with respect to any order, writ, injunction,
or decree of any court or before any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign.
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.15 Compliance with Law. Except as set forth on Schedule 3.15, to the
knowledge of DFTS after reasonable inquiry, DFTS has complied and is in
compliance in all material respects with all applicable federal, state, local
and foreign laws, statutes, licensing requirements, rules and regulations, and
judicial or administrative decisions (including without limitation, any that
relate to health and safety environmental matters, sale and distribution of
products and services, anti-competitive practices, collective bargaining, equal
opportunity and improper payments), pertaining to its properties or assets, the
ownership thereof or to the operation of its business, except for violations, if
any, which do not and will not (assuming continued operations on the same basis
as heretofore operated) have a material adverse effect on the business,
operations or financial condition of DFTS. Except as set forth on Schedule 3.15,
to the knowledge of DFTS after reasonable inquiry, no violation by DFTS is being
alleged of any applicable law, statute, order, rule or regulation promulgated or
judgment entered by any federal, state, local, foreign court or governmental
authority relating to the operation, conduct or ownership of the property or
business of DFTS.
.16 Environmental Matters. To the knowledge of DFTS after reasonable
inquiry, DFTS is not subject to any material liability or obligation relating to
(i) the environmental conditions on, under or about the properties or assets
owned or used by DFTS, including without limitations, the soil and groundwater
conditions at such properties; or (ii) the use, management, handling, transport,
treatment, generation, storage, disposal, release or discharge of any hazardous
wastes, hazardous substances, toxic substances or related materials defined,
listed or identified under any federal, state or local statutes or regulations
relating to environmental matters (collectively, "Hazardous Materials"). DFTS
has disclosed and made available to NMKT all written information, including
without limitations, all studies, analyses and test results, in their
possession, custody or control relating to Hazardous Materials used, managed,
handled, transported, treated, generated, stored, dispose, released or
discharged by DFTS or on its properties or in connection with the operation of
its business. For purposes of this Agreement, the term "Hazardous Material"
shall include, without limitation, all hazardous substances, extremely hazardous
substances, hazardous materials, hazardous wastes, solid wastes, toxic
substances and related materials defined, listed or identified under any
federal, state or local statutes or regulations relating to environmental
matters, including without limitation the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C.ss.ss.9601, et
seq., and the Hazardous Materials Transportation Act, 49 U.S.C. ss.ss.1802, et
seq.
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.17 Labor Relations. Except as set forth on Schedule 3.17, DFTS is not a
party to any labor or collective bargaining agreement. Except as set forth on
Schedule ___, DFTS has not received any written notice from any labor union or
group of employees that such union or group represents or believes or claims it
represents or intends to represent any of the employees of DFTS. To the
knowledge of DFTS, no strike or work interruption by any employees of DFTS is
threatened. No claim that DFTS has engaged in any unfair labor practices is
pending or, to the knowledge of DFTS, is threatened.
.18 Insurance Policies. All policies of insurance relating to the
properties, assets, business, products, operations or employees of DFTS are
listed on Schedule 3.18 and except as set forth on Schedule 3.18 are in full
force and effect and DFTS has not received any notice of the cancellation of any
such policies. DFTS is not in default with respect to any provisions contained
in any insurance policy listed on Schedule 3.18 nor has it failed to give any
notice or present any claim under any such insurance policy in due and timely
fashion which would materially and adversely affect the financial condition,
results of operations, business or prospects of DFTS.
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.19 Notice from Governmental Entities. DFTS has not received any demand,
notification or other written notice form any governmental entity which, if
complied with, would require capital expenditures by DFTS aggregating in excess
of $10,000.
.20 Broker's or Finder's Fees. No agent, broker, investment banker, person
or firm acting on behalf of DFTS or under its authority is or will be entitled
to any broker's or finder's fee or any other commission or similar fee directly
or indirectly from DFTS in connection with any of the transactions contemplated
herein.
.21 Investment Purposes. DFTS represents and acknowledges that the DCI
Stock Interest is being acquired for its own account (and not for the account of
others) for investment purposes and not with a view to the distribution or
resale thereof. DFTS acknowledges and agrees that the DCI Stock Interest will
not be registered under the Securities Act of 1933 (as amended), and that any
certificate or other instrument issued representing the DCI Stock Interest and
any certificates or other instruments issued in substitution therefor shall bear
an appropriate restrictive legend.
.22 No Governmental Restriction. DFTS represents that neither DFTS, members
of its Board of Directors, its officers nor its employees are currently under
investigation by any federal, state or local government for contract violations
and that none of them have ever been suspended or disbarred by any such
governments for contract violations. Further, DFTS represents that no member of
its Board of Directors, officers or employees have ever been convicted of a
crime (other than minor infractions not punishable as a felony) nor are any of
such persons currently under investigation by any such governments for such
matters.
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4 Representations, Warranties and Covenants of DCI. DCI represents and
warrants to DFTS as follows:
.1 Organization of DCI. DCI is a corporation duly organized, valid existing
and in good standing under the laws of the State of Texas and has all requisite
corporate and other power, authority and legal right to own, lease and operate
the properties used in its business, to carry on its business as presently
conducted and to execute, deliver and perform its obligations under this
Agreement. DCI is duly qualified or licensed as a foreign corporation in each
jurisdiction or place in which it owns or leases real property or in which it
transacts business and where the nature of the business transacted legally
requires such registration or qualification and the failure to be so registered
or qualified could have a material adverse effect on the business or financial
condition of DCI. DCI presently has two directors on its Board of Directors,
being Xxxxx Xxxxxxxxxxx and Xxxx Xxxxxxxxxxx. Each director is elected for a
term of one (1) year.
.2 Corporate Documents. Attached hereto as Exhibit C is a complete and
correct copy of DCI's Certificate of Incorporation, as amended to date,
certified by the Secretary of State of Texas, and DCI's By-Laws, as currently in
effect, certified by the Secretary of DCI.
.3 Authorization of Agreement. The execution, delivery and performance of
this Agreement by DCI has been duly and validly authorized and approved by the
Board of Directors of DCI. This Agreement constitutes the legal, valid and
binding obligations of DCI, enforceable against DCI in accordance with the terms
of this Agreement.
.4 Capital Stock of DCI. The authorized capital stock of DCI consists only
of 10,000,000 shares of DCI's common stock, par value ____ per share, of which
4,693,878 shares are issues and outstanding. Each share of common stock is
entitled to one vote and neither DCI's Certificate of Incorporation or its
By-Laws permit the cumulative voting of its common stock. No shares of such
common stock are held in the treasury of DCI. A list of the holders of all such
common stock are set forth in Schedule 4.4. DCI does not own stock in and does
not control, directly or indirectly, any corporation, association or business
organization. DCI is not a party to any joint venture or partnership agreement.
All shares of common stock that are outstanding, including the DCI Stock
Interest are duly authorized, validly issued and outstanding, fully paid, and
nonassessable, and no person has any preemptive rights in respect thereof.
Except as set forth on Schedule ___, there is outstanding no security, option,
warrant, right, call, subscription, agreement, commitment, or understanding,
fixed or contingent, that directly or indirectly (i) calls for the issuance of,
or the granting of rights to acquire, any capital stock of DCI, or any
securities convertible into any stock of DCI; (ii) obligates DCI to grant, offer
or enter into any of the foregoing; or (iii) relates to the voting or control of
such stock, securities or rights.
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.5 Financial.
.1 DCI has furnished to DFTS true and complete copies of (i) the financial
statements for DCI as follows: Balance Sheet for the calendar years ending
December 31, 2002, 2003 and 2004 and Profit & Loss Statements for those same
periods .These financial statements , while not certified by a public accounting
firm, have nevertheless been prepared in conformity with generally accepted
accounting principles applied on a basis consistent with prior periods. These
financial statements present fairly the financial position of DCI as at the
dates thereof. DCI has also furnished to DFTS financial statements as of
___________, which have been certified by a public accounting firm, ("Certified
Financials") and which are attached to this Agreement as Exhibit D. The DCI
Certified Financials have been prepared in conformity with generally accepted
accounting principles applied on a basis consistent with prior periods and
present fairly the financial position of DCI as of the date of the said
Certified Financials. For the purpose of this Agreement, the DCI Certified
Financials referred to in this Section shall be deemed to include any notes to
such financial statements, if any.
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.2 As of the dates specified in the DCI Certified Financials included in
Exhibit D, DCI has no liabilities or obligations, either accrued, contingent or
otherwise, which are material to DCI which have not been specifically reflected
or disclosed in the said Certified Financials.
.3 Except as specifically reflected or disclosed on Schedule 4.5.3 or in
the DCI Certified Financials, there are not claims against or liabilities or
obligations of, or any reasonable basis known to DCI, any claims against or
liabilities or obligations of DCI, which individually or in the aggregate (i)
might result in a material decrease in the stockholders' equity of DCI from that
shown in the DCI Certified Financials; or (ii) might result in a material charge
against the annual net income of DCI; or (iii) might result in or cause any
material adverse change in the financial condition, results of operations,
business or prospects of DCI.
.4 Since the date of the DCI Certified Financials, except as disclosed on
Schedule 4.5.4, whether or not in the ordinary course of business, there has not
been, occurred or arisen:
.1 any material adverse change in the financial condition, results of
operations, business or prospects of DCI; or
.2 any damage or destruction in the nature of a casualty loss, whether
covered by insurance or not, adversely affecting any property or business of DCI
which is material to the financial condition, results of operations, business or
prospects of DCI; or
.3 any increase in excess of $10,000 in the compensation payable or to
become payable to DCI to its directors, officers, management personnel,
consultants or agents, whether in the form of fees, salaries, bonuses or any
other form of compensation, or any increase in benefits under any bonus,
insurance, pension or other benefit plan made for or with any of such persons
and no deferred salary or similar obligation; or
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.4 any actual or threatened strike or other labor trouble or dispute which
materially and adversely affects, or might materially and adversely affect, the
financial conditions, results of operations, business or prospects of DCI; or .5
any direct or indirect redemption, purchase or other acquisition by DCI of any
shares of DCI's stock, or any declaration, setting aside or payment of any
dividend or other distribution by DCI in respect of its stock.
.5 Since the date of the DCI Certified Financials, DCI has not engaged in
any transaction material to the financial condition, results of operations,
business or prospects of DCI not in the ordinary course of its business;
.6 In all material respects, the books, records and accounts of DCI
accurately and fairly reflect, in reasonable detail, the transactions and
dispositions of the assets of DCI.
.7
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.6 No Breach of Statute or Contract; Governmental Authorization.
.1 Neither the execution and delivery of this Agreement nor compliance by
DCI with the terms and provisions of the same, nor the consummation of the
transactions contemplated hereby will:
.1 conflict with or result in a breach of or constitute or result in a
default under any of the terms, conditions or provisions of its Certificate of
Incorporation, By-Laws or other governing instruments or any judgment, order,
injunction, decree, regulation or ruling of any court or governmental authority,
domestic or foreign, to which it is subject or of any agreement, contract, or
commitment to which it is a party or otherwise bound; or
.2 give to others any rights of termination, cancellation or acceleration,
with respect to any of such agreements, contracts or commitments.
.7 DCI is not required to submit any notice, report or other filing with,
or obtain the consent or approval of , any governmental authority in connection
with its execution or delivery of this Agreement, the consummation or the
transactions as contemplated by this Agreement.
.8 Inventories. In all material respects, (i) the inventories shown on the
DCI Certified Financials and any inventories thereafter acquired by DCI prior to
the Closing Date consist, and will consist, of items of a quality and quantity
usable or saleable in the normal course of DCI's business; (ii) the value of all
items of obsolete materials and of all items of below standard quality has been
written down to realizable market value or adequate reserves have been provided
for such materials; and (iii) the values at which such inventories are carried
reflect the normal inventory valuation policy of DCI.
19
.9 Accounts Receivable. All accounts receivable reflected on the DCI
Certified Financials and any accounts receivable thereafter acquired by DCI
prior to the Closing Date constitute, and will constitute, bona fide receivables
resulting from bona fide transactions in the ordinary course of DCI's business
with adequate reserves provided.
.10 Buildings and Equipment. The buildings, machinery and equipment owned
or used by DCI are adequate for the conduct of DCI's business as such business
presently is conducted and are in normal operating condition and repair,
ordinary wear and tear excepted, and free from any known defects except such
minor defects as do substantially interfere with the continued use thereof in
the conduct of normal operations.
.11 Tax Returns & Reports. Except as specified in Schedule 4.11, all
required federal, state and local tax returns and tax reports and sales tax
reports have been filed and all required taxes have been paid.
.12 Title to Properties. Except as specified in Schedule 4.12, DCI has good
and marketable title or other ownership interest adequate for the conduct of its
operations and business in all of its assets (including capitalized lease
agreements, if any) in each case, free and clear of all mortgages, liens,
pledges, restrictions, charges or encumbrances of any nature whatsoever, except
(i) liens for current taxes which are not yet due and payable or are being
contested in good faith in appropriate proceedings, (ii) liens of carriers,
warehousemen, mechanics, laborers and material men incurred in the ordinary
course of business for sums not yet due, and (iii) such other encumbrances and
imperfections of title, if any, as in the aggregate, and are not substantial in
character, amount or extent, and do not materially detract from the value or
interfere with the use of the properties for the purposes for which they are
presently used or otherwise materially impair business operations.
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.13 Agreements, Contracts and Commitments.
.1 Except as set forth in Schedule 4.13, DCI does not have in effect and is
not a party to:
.1 any Welfare Plan or Pension Plan Profit Sharing Plan, except for routine
life and disability insurance plans which may be cancelled on not more than
thirty (30) days notice; or
.2 any research, development, license, consulting, distribution or sales
agency agreement, contract or commitment with any person involving aggregate
payment by or to DCI in excess of $10,000 or extending beyond 12 months from the
date hereof; or
.3 any agreement, indenture or other instrument relating to the money or
the guarantee of any obligation for, to service the repayment of, borrowed
money; or
.4 any employment agreement requiring annual payment of compensation of
more than $25,000 and/or for a term more than one (1) year; or
.5 any lease with a term of more than one year or requiring payments of
$10,000 or more;
.6 any agreement, commitment relating to the future disposition of any
interest in any business enterprise; or
.7 any agreement, commitment (other than purchase orders in the ordinary
course of business) for the production and sale, or product or material by DCI
requiring $20,000 or more to, or by, DCI; or
.8 any agreement (whether or not in the ordinary course of business)
involving an amount over the duration of the agreement of $50,000 or more;
21
.9 any other agreement, contract or commitment or performance or surety
bond not entered into in the ordinary course of business involving an aggregate
payment by or to DCI in excess of $10,000 or not terminable within four months
without payment of a penalty greater than $10,000 by DCI.
.14 With respect to Schedule 4.13, DCI has not breached, and to the
knowledge of DCI, there exists no claim or threat that DCI has breached, any of
the terms or conditions of any agreement, contract or commitment set forth in
said Schedule 4.13 in such manner as would permit any other party to cancel or
terminate the same. If any such breach or breaches singly or in the aggregate
could materially and adversely affect the financial condition, results of
operations, business or prospects of DCI. Each agreement, contract, commitment
or other document set forth in Schedule 4.13 is valid and in full force and
effect and there is currently no default with respect thereto by either DCI or,
to the knowledge of DCI, by any party obligated to DCI pursuant thereto. DCI has
delivered to DFTS a true and complete original or copy of each agreement,
contract, commitment or other document set forth in Schedule 4.13.
.15 Licenses and Permits. Schedule 4.15 contains a list of all licenses,
franchises, permits and other governmental authorizations held by DCI that are
material in connection with the ownership and conduct of the business of DCI.
Each of such licenses, franchises, permits and other governmental authorizations
is valid and in good standing. The governmental authorizations set forth on
Schedule 4.15 constitute all governmental authorizations necessary for all
businesses currently carried on by DCI.
.16 Litigation. Except as set forth on Schedule 4.16, there are no suits,
actions or legal, administrative, arbitration or other proceedings and
governmental investigations involving DCI pending or, to the knowledge of DCI
threatened. DCI is not in default with respect to any order, writ, injunction,
or decree of any court or before any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign.
22
.17 Compliance with Law. Except as set forth on Schedule ___, to the
knowledge of DCI after reasonable inquiry, DCI has complied and is in compliance
in all material respects with all applicable federal, state, local and foreign
laws, statutes, licensing requirements, rules and regulations, and judicial or
administrative decisions (including without limitation, any that relate to
health and safety environmental matters, sale and distribution of products and
services, anti-competitive practices, collective bargaining, equal opportunity
and improper payments), pertaining to its properties or assets, the ownership
thereof or to the operation of its business, except for violations, if any,
which do not and will not (assuming continued operations on the same basis as
heretofore operated) have a material adverse effect on the business, operations
or financial condition of DCI. Except as set forth on Schedule 4.17, to the
knowledge of DCI after reasonable inquiry, no violation by DCI is being alleged
of any applicable law, statute, order, rule or regulation promulgated or
judgment entered by any federal, state, local, foreign court or governmental
authority relating to the operation, conduct or ownership of the property or
business of DCI.
.18 Environmental Matters. To the knowledge of DCI after reasonable
inquiry, DCI is not subject to any material liability or obligation relating to
(i) the environmental conditions on, under or about the properties or assets
owned or used by DCI, including without limitations, the soil and groundwater
conditions at such properties; or (ii) the use, management, handling, transport,
treatment, generation, storage, disposal, release or discharge of any hazardous
wastes, hazardous substances, toxic substances or related materials defined,
listed or identified under any federal, state or local statutes or regulations
relating to environmental matters (collectively, "Hazardous Materials"). DCI has
disclosed and made available to DFTS all written information, including without
limitations, all studies, analyses and test results, in their possession,
custody or control relating to Hazardous Materials used, managed, handled,
transported, treated, generated, stored, dispose, released or discharged by DCI
or on its properties or in connection with the operation of its business. For
purposes of this Agreement, the term "Hazardous Material" shall include, without
limitation, all hazardous substances, extremely hazardous substances, hazardous
materials, hazardous wastes, solid wastes, toxic substances and related
materials defined, listed or identified under any federal, state or local
statutes or regulations relating to environmental matters, including without
limitation the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended, 42 U.S.C.ss.ss.9601, et seq., and the Hazardous
Materials Transportation Act, 49 U.S.C. ss.ss.1802, et seq.
23
.19 Labor Relations. Except as set forth on Schedule 4.19, DCI is not a
party to any labor or collective bargaining agreement. Except as set forth on
Schedule 4.19, DCI has not received any written notice from any labor union or
group of employees that such union or group represents or believes or claims it
represents or intends to represent any of the employees of DCI. To the knowledge
of DCI, no strike or work interruption by any employees of DCI is threatened. No
claim that DCI has engaged in any unfair labor practices is pending or, to the
knowledge of DFTS, is threatened.
.20 Insurance Policies. All policies of insurance relating to the
properties, assets, business, products, operations or employees of DCI are
listed on Schedule 4.20 and except as set forth on Schedule 4.20 are in full
force and effect and DCI has not received any notice of the cancellation of any
such policies. DCI is not in default with respect to any provisions contained in
any insurance policy listed on Schedule 4.20 nor has it failed to give any
notice or present any claim under any such insurance policy in due and timely
fashion which would materially and adversely affect the financial condition,
results of operations, business or prospects of DCI.
24
.21 Bank Accounts and Powers of Attorney. The name of each bank in which
DCI has an account or safe deposit box, and the names of all persons authorized
to draw thereon or have access thereto and the names of all persons, if any,
holding powers of attorney, from DCI are listed on Schedule 4.21.
.22 Minute Books. The minute books of DCI for the period since the
incorporation of DCI contain complete and accurate records of all official
meetings and other official material corporate actions of its stockholders,
Board of Directors and Committees of its Board of Directors.
.23 Notice from Governmental Entities. DCI has not received any demand,
notification or other written notice form any governmental entity which, if
complied with, would require capital expenditures by DCI aggregating in excess
of $10,000.
.24 Representation as to DCI Stock Interest. The books and records of DCI
reflect that to the best of DCI's knowledge, NMKT is the beneficial and record
owner of the DCI Stock Interest with good and marketable title to such stock,
free and clear of all liens, encumbrances, claims, charges, agreements, rights,
options and warrants of any kind; that said DCI Stock Interest represents 51% of
the issued and outstanding shares of the common stock of DCI.
5 Representations, Warranties and Covenants of NMKT. NMKT represents and
warrants to DFTS as follows:
.1 Representations of NMKT. NMKT is the beneficial owner of the DCI Stock
Interest and is the record owner thereof or will be the record owner of such
stock on or before the Closing Date and is or will have good title to the said
DCI Stock Interest on or before such Closing Date with the full power and
authority to transfer and otherwise dispose of the said DCI Stock Interest, free
and clear of all security interests, judgment, liens, pledges, adverse claims,
charges, escrows, options, warrants, rights of first refusal, rights of first
offer, mortgages, indentures or other agreements, arrangements, encumbrances or
defects of any kind or character. There are no agreements or understandings,
either written or oral, with any other person or entity with respect to the
voting (through a voting trust, proxy or otherwise), sale or other disposition
of the said DCI Stock Interest. NMKT has not granted and there is not presently
in effect any proxy for anyone other than NMKT to vote the DCI Stock Interest.
25
.2 Organization of NMKT. NMKT is a corporation duly organized, valid
existing and in good standing under the laws of the State of Nevada and has all
requisite corporate and other power, authority and legal right to execute,
deliver and perform its obligations under this Agreement.
.3 Authorization of Agreement. The execution, delivery and performance of
this Agreement by NMKT has been duly and validly authorized and approved by the
Board of Directors of NMKT. This Agreement constitutes the legal, valid and
binding obligations of NMKT, enforceable against NMKT in accordance with the
terms of this Agreement. Neither the execution and delivery of this Agreement
nor the consummation of the transaction contemplated hereby will conflict with
or result in a breach of or constitute or result in a default under any of the
terms, conditions or provisions of its Certificate of Incorporation, By-Laws or
other governing instruments or any judgment, order, injunction, decree,
regulation or ruling of any court or governmental authority, domestic or
foreign, to which it is subject. NMKT is not required to obtain the consent or
approval of, any governmental authority in connection with its execution or
delivery of this Agreement or the consummation of the transactions as
contemplated by this Agreement.
26
.4 Broker's or Finder's Fees. No agent, broker, investment banker, person
or firm acting on behalf of NMKT or under its authority is or will be entitled
to any broker's or finder's fee or any other commission or similar fee directly
or indirectly from DFTS or DCI in connection with any of the transactions
contemplated herein.
.5 Investment Purposes. NMKT represents and warrants that it is acquiring
the Shares for its own account (and not for the account of others) for
investment purposes and not with a view to the distribution or resale thereof.
However, NMKT has stated that when and if permitted under the terms of this
Agreement, it intends to convert a portion of the Class C preferred stock that
it receives from DFTS into common stock which it will then distribute (without a
sale thereof) to the stockholders of NMKT. NMKT acknowledges and agrees that the
preferred stock it receives under this Agreement and the common stock of DFTS
that may be issued upon a permitted conversion by NMKT of the Class C preferred
stock of DFTS will not be registered under the Securities Act of 1933 (as
amended) and that any certificate or other instrument issued representing the
said stock and any certificates or other instruments issued in substitution
therefor shall bear an appropriate restrictive legend.
.6 Representations and Warranties of DCI. All of the representations and
warranties of DCI contained in this Agreement including but not limited to those
representations and warranties contained in Article 4 of this Agreement and
including all information contained on the attached Exhibits and Schedules are
true and accurate as of the date of this Agreement and will also be true and
accurate as of the Closing Date.
6 Certain Agreements.
.1 Operation of Business of DCI. Except as set forth in Schedule 6 between
the date of the execution of this Agreement and the Closing Date,
27
.1 DCI will preserve and keep intact the business organization of DCI and
keep available the services of the present officers, directors and employees of
DCI, and preserve the present relationships of DCI with persons having
significant business relations therewith; and
.2 DCI shall conduct its business only in the ordinary course and, by way
of amplification and not limitation, DCI, without prior written consent of DFTS,
will not:
.1 issue or commit to issue any capital stock of DCI;
.2 grant or commit to grant any options, warrants, convertible securities
or other rights to subscribe for, purchase or otherwise acquire any share of its
capital stock;
.3 declare, set aside, or pay any dividend or distribution with respect to
the capital stock of DCI;
.4 directly or indirectly redeem, purchase or otherwise acquire or commit
to acquire any capital stock of DCI;
.5 effect a split or reclassification of any capital stock of DCI or a
recapitalization of DCI;
.6 change the Certificate of Incorporation or By-Laws or other governing
instruments of DCI;
.7 increase or decrease the number of directors of DCI or add or remove any
of its existing directors;
.8 enter into any employment, consulting, agency, distribution or supply
agreement, contract or commitment (other than purchase orders in the ordinary
course of business) with any person or modify or cancel any such agreement,
commitment or contract in effect on the date hereof containing an obligation to
pay or accrue more than $10,000;
28
.9 enter into, or modify or cancel, any agreement, contract or commitment
relating to capital expenditures containing an obligation to pay or accrue xxx
xxxx $10,000;
.10 enter into, or modify or cancel, any agreement, contract, indenture or
other instrument relating to the borrowing of money or other contracting or
payment of indebtedness or the guarantee of any obligation for the borrowing of
money or other contracting payment of indebtedness payable in more than 90 days;
.11 enter into, or modify or cancel, any lease having a term of more than
one year or containing an obligation to pay or accrue more than $10,000 other
than the exercise of existing renewal options;
.12 enter into, or modify or cancel, any agreement, contract or commitment
relating to the disposition or acquisition of any interest in any business
enterprise; or
.13 enter into, modify or cancel, any other agreement, contract or
commitment of DFTS (other than any agreement, contract or commitment for the
purchase of raw materials, supplies, tools or inventory or for the production
and sale of any product by DCI entered into in the ordinary course of business)
not terminable within thirty days without payment of a penalty by DCI.
.2 Information for Governmental Filings. DFTS, DCI and NMKT hereby agree
that each will furnish the others with such information as shall be necessary in
the preparation of any filing required by any governmental or regulatory
authority in connection with the transactions contemplated by this Agreement.
29
.3 Further Assurances. Each party hereby agrees to (i) execute and deliver
such instruments and take such other actions as another party may reasonably
require in order to carry out the intent of this Agreement; (ii) use its best
efforts to obtain consent from all third parties and governmental bodies
necessary for the consummation of the transactions contemplated by this
Agreement; and (iii) diligently support this Agreement in any proceeding before
any regulatory authority whose approval of any of the transactions contemplated
hereby is required.
.4 Exchange of Information. DFTS and DCI each hereby agree to give to each
other and their respective representatives and agents full access to all the
premises and books and records of DFTS and DCI and to cause each of DFTS' and
DCI's officers and independent auditors to furnish such financial and operating
data and other information with respect to the business and properties of DFTS
and DCI as each shall from time to time request; provided, however, that any
investigation (i) shall be conducted in such manner as not to interfere
unreasonably with the operation of the business of DFTS or DCI; and (ii) shall
not affect any of the representations and warranties hereunder. In the event the
transactions contemplated by this Agreement are not consummated for reasons
other than a breach by one or more parties of their obligations under this
Agreement, DFTS, DCI and NMKT each hereby agree to return all documents and
other material obtained from DFTS, DCI and/or NMKT, as the case may be, in
connection with the transactions contemplated hereby. Except in the event of a
breach by one or more parties to their obligations under this Agreement, the
parties will each keep confidential all inforamtion concerning DFTS, DCI or
NMKT, as the case may be, obtained pursuant to this Agreement or in connection
with the transactions contemplated hereby unless such information is readily
ascertainable from public or published information or trade sources and will
take such other steps in regard to the confidentiality of such material as have
ben mutually agreed upon.
30
.5 Transfer and Similar Taxes. All taxes or similar charges due to the
Internal Revenue Service or any state or local taxing agency imposed upon any
party arising in respect of the transfer or ownership provided for under this
Agreement shall be paid by the person or entity that incurred such liability.
7 Conditions of Closing.
.1 Conditions of Obligations of DFTS. The obligations of DFTS to close
hereunder shall be subject to the following conditions:
.1 Each of the substantive representations and warranties of DCI and NMKT
herein contained shall be true and correct in all material respects to the
reasonable satisfaction of DFTS on and as of the Closing Date with the same
effect as though made at such time except (i) insofar as such representations
and warranties are given as of a particular date; or (ii) as affected by the
transactions contemplated by this Agreement. In all cases, except to the extent
waived hereunder or affected by the transactions contemplated or permitted
herein, DCI and NMKT shall have performed in all material respect to the
reasonable satisfaction of DFTS all obligations and complied with all covenants
and conditions required by this Agreement to be performed or complied with by
each of DCI and NMKT at or prior to the Closing Date.
.2 No suit, action or other proceeding shall be pending before any court or
governmental agency in which it is sought to restrain or prohibit the
consummation of the transactions contemplated hereby, or in which it is sought
to obtain substantial damages in connection therewith. No order of any court or
administrative agency which restrains or prohibits the transactions contemplated
hereby shall be in effect and no governmental agency shall be seeking such or
threatening to do so.
31
.3 All statutory requirements for the valid consummation by DCI and NMKT of
the transactions contemplated by this Agreement shall have been fulfilled; all
authorizations, consents and approvals of all federal, state and local
governmental agencies and authorities required to be obtained in order to permit
consummation by DCI and NMKT of the transactions contemplated by this Agreement
shall have been obtained and shall be in full force and effect.
.4 The form and substance of all legal documents and/or papers used or
delivered hereunder by DCI and NMKT shall be reasonably satisfactory to counsel
for DFTS.
.5 On or prior to the Closing Date, NMKT shall have delivered to DFTS
certified copies of the resolutions of the Board of Directors of NMKT
authorizing and consenting to the transactions contemplated hereby.
.2 Conditions of Obligations of NMKT. The obligations of NMKT to close
hereunder shall be subject to the following conditions:
.1 Each of the substantive representations and warranties of DFTS herein
contained shall be true and correct in all material respects to the reasonable
satisfaction of NMKT on and as of the Closing Date with the same effect as
though made at such time except (i) insofar as such representations and
warranties are given as of a particular date; or (ii) as affected by the
transactions contemplated in this Agreement. In all cases, except to the extent
waived hereunder or affected by the transactions contemplated or permitted
herein, DFTS shall have performed in all material respects to the reasonable
satisfaction of NMKT all obligations and complied with all covenants and
conditions required by this Agreement to be performed or complied with by DFTS
at or prior to the Closing Date.
32
.2 No suit, action or other proceeding shall be pending before any court or
governmental agency in which it is sought to restrain or prohibit the
consummation of the transactions contemplated hereby, or in which it is sought
to obtain substantial damages in connection therewith. No order of any court or
administrative agency which restrains or prohibits the transactions contemplated
hereby shall be in effect and no governmental agency shall be seeking such or
threatening to do so.
.3 All statutory requirements for the valid consummation by DFTS of all
transactions contemplated by this Agreement shall have been fulfilled; all
authorizations, consents and approvals of all federal, state and local
governmental agencies and authorities required to be obtained in order to permit
consummation by DFTS of the transactions contemplated by this Agreement shall
have been obtained and shall be in full force and effect.
.4 The form and substance of all legal documents, and/or papers used or
delivered hereunder by DFTS shall be reasonably satisfactory to counsel for
NMKT.
.5 On or prior to the Closing Date, DFTS shall have delivered to NMKT
certified copies of the resolutions of the Board of Directors of DFTS
authorizing and consenting to the transactions contemplated hereby.
8 Closing. The closing ("Closing") shall take place at the offices of
Xxxxxx & Xxxxxxxx, LLP, 00 Xxxxxxx Xxxxxxxxx Xxxx., Xxxxx 000, Xxxxxxx Xxxxx, XX
00000 on April 29, 2005 (the "Closing Date").
.1 DFTS' Documents. At the Closing DFTS shall deliver the following to
NMKT:
.1 The stock certificates representing the Class C and Class D of preferred
stock of DFTS to be issued pursuant to Section 1.3 of this Agreement.
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.2 Certified copies or other copies of such documents as NMKT or its
counsel may reasonably request, including but not limited to a certificate(s)
signed by the President or Chief Financial Officer of DFTS certifying that all
of the obligations of DFTS have been performed and that all warranties and
representations contained in this Agreement remain true and accurate.
.3 Copies of all consents, approvals, notices and waivers which may be
required by this Agreement in form and substance reasonably satisfactory to
NMKT.
.2 NMKT's Documents. The Purchaser shall deliver to DFTS the following:
.1 Stock certificate(s) effectively transferring the DCI Stock Interest to
DFTS (being either a stock certificate of DCI for the DCI Stock Interest
registered to DFTS or a stock certificate of DCI for the DCI Stock Interest
registered to NMKT together with an effective stock power transferring the DCI
Stock Interest to DFTS).
.2 A proxy, in the form annexed hereto as Exhibit E conveying an
irrevocable proxy coupled with an interest, as required by Section 2.3 of this
Agreement.
.3 A certified copy of a resolution of the Board of Directors of DCI
appointing Xxxxxx Xxxxx to the DCI Board of Directors.
.4 Certified copies or other copies of such documents as DFTS or its
counsel may reasonably request, including but not limited to a certificate(s)
signed by the President or Chief Financial Officer of NMKT certifying that all
of the obligations of NMKT have been performed and that all warranties and
representations contained in this Agreement remain true and accurate.
.5 Copies of all consents, approvals, notices and waivers which may be
required by this Agreement in form and substance reasonably satisfactory to
DFTS.
9 Termination of Agreement.
34
.1 Termination for Cause. DFTS or NMKT may terminate this Agreement at or
prior to the Closing Date if the non-terminating party has failed or refused to
perform its obligations under this Agreement or any of the representations and
warranties made by such non-terminating party are untrue in any material respect
and/or cannot be corrected on or prior to the Closing Date, then the other party
may terminate this Agreement. Such termination for cause shall not, in any way,
waive or relieve the non-terminating party from any remedy which may be
available at either law or equity.
.2 Termination Without Cause. In addition to the rights of the parties
hereto to terminate this Agreement under any other provision hereof, the
transactions contemplated hereby may be terminated at any time before the
Closing Date, (i) by mutual consent of DFTS and NMKT; or (ii) by either DFTS or
NMKT, if the Closing of this Agreement shall not have occurred (for reasons
other than a breach by a party of its obligations as set forth in this
Agreement) on or before the close of business on May 31, 2005, which date may be
extended by mutual agreement of DFTS and NMKT.
.3 Notice of Termination. In the event of the termination of this Agreement
pursuant to Sections 9.1 or 9.2 above, notice shall forthwith be given by the
terminating party to the other parties to this Agreement. If termination was
pursuant to Section ___ hereof, there shall be no liability on the part of any
party hereto to any other party.
10 Specific Performance. Each of the parties acknowledges and agrees that
the other parties would be damaged irreparably in the event any of the
provisions of this Agreement are not performed in accordance with their specific
terms or otherwise are breached. Accordingly, each of the parties agrees that
the other parties shall be entitled to an injunction or injunctions to prevent
breaches of the provisions of this Agreement and to enforce specifically this
Agreement and the terms and provisions hereof without the need to post a bond or
other surety and without the requirement of establishing the insufficiency of
monetary damages only.
35
11 Arbitration. The parties agree that any dispute, controversy or claim
arising out of or relating to this Agreement or the breach thereof shall be
submitted to and determined by arbitration in New York City or Nassau County,
New York, pursuant to the rules of the American Arbitration Association. Unless
otherwise provided in this Agreement, any Arbitration must be commenced within
two years from the arising of the breach, dispute, controversy or claim. If not
timely commenced, no arbitration or lawsuit may be commenced thereafter with
regard to such matter nor may the same be asserted in any subsequent arbitration
or lawsuit by way of a counterclaim or affirmative defense. The issues shall be
submitted to three impartial arbitrators selected from panels of arbitrators of
the said association. The majority decision of the arbitrators shall be
sufficient. Any award rendered shall be binding upon the parties and judgment
upon such award may be entered in any court of competent jurisdiction. The
arbitrators shall have the power to award a decree of specific performance,
punitive damages, temporary or permanent injunctive relief or any other legal or
equitable remedy and said award shall be binding upon the parties as though
decreed by a court of competent jurisdiction. In addition, the arbitrators shall
retain the right to award equitable relief in order to carry out the provisions
of this Agreement and/or to effectuate the mechanisms set forth in this
Agreement. However, the decisions and rulings of the arbitrators must be in
writing setting forth findings of fact and law and shall be consistent with and
limited to the terms of this Agreement. Any decree or finding inconsistent with
this Agreement may be challenged by any party in a court of competent
jurisdiction. All costs, expenses and fees of the arbitration and attorneys'
fees shall be paid as directed by the arbitrators, who shall have the power to
award the prevailing party all attorneys' fees, costs and expenses. Each party
shall bear its own costs, fees and expenses not awarded by the arbitrators.
Notwithstanding anything to the contrary contained in this Article, any party
shall have the right to apply to a court of competent jurisdiction for and to
obtain a temporary restraining order and/or injunctive relief in order the
prevent or ameliorate irreparable damage pending the commencement and outcome of
arbitration.
36
12 Payment of Expenses. Each party hereby agrees to pay all of their own
costs and expenses incident to its negotiation and preparation of this Agreement
and their performance of and compliance with all agreements and conditions
contained herein, including the fees, expenses and disbursements of its counsel
and its auditors.
13 Survival of Representations, Warranties and Indemnities. Subject to the
limitations and other provisions of this Agreement, the representations,
warranties, indemnities, agreements and covenants made by any party in this
Agreement, or pursuant hereto, shall survive this Agreement and the Closing, for
three years from the Closing Date, notwithstanding any investigation made at any
time by or on behalf of the other parties.
14 Notices. Any notice required or given under this Agreement shall be in
writing and delivered in person, sent by certified or registered mail, return
receipt requested, or next day mail or by recognized overnight courier (such as
Federal Express or UPS) and addressed to the other party at the address set
forth below, or at such other address as the party may designate in writing.
Notices delivered in person or sent by next day mail or courier shall be deemed
to have been given on the day actually received. Notices sent by registered or
certified mail shall be deemed to have been given on the earlier of the third
day after the date such notice was sent or the day actually received; provided,
however, that if such day falls on a weekend or legal holiday, receipt shall be
deemed to occur on the business day following such weekend or legal holiday. All
such notices or communications shall be deemed intended given as provided above
unless the recipient refuses to accept the same or the notice is returned as
undeliverable because the intended recipient did not sign the requested receipt
or failed to pick up the notice from the office of the carrier. In such event,
such notice or communication shall be deemed given when such delivery was first
attempted to be made on the intended recipient.
37
If to DFTS:
000 X Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
With a copy to:
Xxxxxx & Xxxxxxxx, LLP
00 Xxxxxxx Xxxxxxxxx Xxxxxxxxx., Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx, Esq.
If to NMKT:
00000 Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
If to DCI:
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxx, XX 00000
1 Governing Law; Jurisdiction. This Agreement shall be construed in
accordance with and governed by the laws of the State of New York, without
regard to the effect of principles or conflicts of laws thereof. Except as
otherwise set forth in Article ___ (Arbitration) hereof, each party hereto
hereby irrevocably submits to the jurisdiction of the Supreme Court of the State
of New York, County of Nassau or to the United States District Court, Eastern
District, in any action, suit or proceeding brought against it and related to or
in connection with this Agreement or any of the transactions contemplated
hereby, and to the extent permitted by applicable law, each party hereby waives
and agrees not to assert by way of motion, as a defense or otherwise, in any
such suit, action or proceeding any claim that it is not personally subject to
the jurisdiction of such courts, that the suit, action or proceeding is brought
in an inconvenient forum, or that the venue of the suit, action or proceeding is
improper.
2 Additional Documents. Each party hereto shall execute and deliver such
consents, proxies, certificates, instruments, agreements and documents as shall
be reasonably necessary to carry out and effectuate the terms and conditions of
this Agreement.
38
3 Complete Agreement; Amendments. This Agreement contains the entire
agreement among the parties with respect to the subject matter of this
Agreement, and supersedes each course of conduct previously pursued or
acquiesced in, and each oral agreement and representation previously made, by
the parties with respect thereto, whether or not relied or acted upon. No course
of performance or other conduct subsequently pursued or acquiesced in, and no
oral agreement or representation subsequently made by the parties, whether or
not relied or acted upon, and no usage of trade, whether or not relied or acted
upon, shall amend this Agreement or impair or otherwise affect any parties'
obligations pursuant to this Agreement or any rights and remedies of a party
pursuant to this Agreement. No amendment to this Agreement shall be effective
unless made in a writing duly executed by all parties and specifically referring
to each provision of this Agreement being amended.
4 Construction. The parties have participated jointly in the negotiation
and drafting of this Agreement. In the event an ambiguity or question of intent
or interpretation arises, this Agreement shall be construed as if drafted
jointly by the parties and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any of the
provisions of this Agreement. Any reference to any Federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
parties intend that each representation, warranty and covenant contained herein,
shall have independent significance. If any party has breached any
representation, warranty, or covenant contained herein in any respect, the fact
that there exists another representation, warranty, or covenant relating to the
same subject matter (regardless of the relative levels of specificity) which the
party has not breached shall not detract from or mitigate the fact that such
party is in breach of the first representation, warranty, or covenant. Provided,
however, that if disclosure or other information has been provided in this
Agreement or by separate written document which relate to a particular
representation, warranty or covenant, the fact that it has not been restated or
repeated with regard to every representation, warranty or covenant to which the
disclosure or information may have applicability, will not cause a party to be
considered to be in breach of such other representation, warranty or covenant.
39
5 Plural/Gender. Whenever the singular number is used in this Agreement and
when required by the context, the same shall include the plural and vice versa,
and the masculine gender shall include the feminine and neuter genders and vice
versa.
IN WITNESS WHEREOF, the parties have executed and delivered this Stock
Purchase Agreement on the date first above written.
DEFENSE TECHNOLOGY SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxx
---------------------
XXXXXX XXXXX, Chief Operating Officer
NEW MARKET TECHNOLOGY, INC.
By: /s/ Xxxxxx Xxxxxx
------------------
XXXXXX XXXXXX, Chief Executive Officer
DIGITAL COMPUTER INTEGRATION CORP.
By: /s/ Xxxxx Xxxxxxxxxxx, Xx.
---------------------------
XXXXX XXXXXXXXXXX, XX., Chief Executive Officer
40
ACKNOWLEDGMENTS
---------------
STATE OF )
: ss.:
COUNTY OF )
On the ___ day of February in the year 2005, before me personally came
XXXXXX XXXXX, to me known, who, being by me duly sworn, did depose and say that
he resides in _______________; that he is the Chief Operating Officer of DEFENSE
TECHNOLOGY SYSTEMS, INC., the corporation described in and which executed the
above instrument; and that he signed his name thereto by authority of the board
of directors of said corporation.
Notary Public
STATE OF )
: ss.:
COUNTY OF )
On the ___ day of __________ in the year 2005, before me personally came
______________ to me known, who, being by me duly sworn, did depose and say that
he/she/they reside(s) in _______________; that he/she/they is(are) the
______________ of NEW MARKET TECHNOLOGY, INC., the corporation described in and
which executed the above instrument; and that he/she/they signed his/her/their
name(s) thereto by authority of the board of directors of said corporation.
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF )
On the ___ day of __________ in the year 2005, before me personally came
______________ to me known, who, being by me duly sworn, did depose and say that
he/she/they reside(s) in _______________; that he/she/they is(are) the
______________ of DIGITAL COMPUTER INTEGRATION CORP., the corporation described
in and which executed the above instrument; and that he/she/they signed
his/her/their name(s) thereto by authority of the board of directors of said
corporation.
Notary Public
41
Attachment to Agreement By and Among
Defense Technology Systems, Inc.,
New Market Technology, Inc. and
Digital Computer Integration Corp.
----------------------------------
Schedule
--------
42
