EX-2.3
AGREEMENT AND PLAN OF MERGER
BY AND BETWEEN
DIAMOND XXXXX PRODUCTION, INC. (NEVADA)
AND
DIAMOND XXXXX PRODUCTION, INC. (FLORIDA)
This Agreement and Plan of Merger ("Agreement") between Diamond
Xxxxx Production, Inc. ("DHTT Nevada" or "Surviving Corporation") and
Diamond Xxxxx Production, Inc. ("DHTT Florida"), the two corporations
acting by their respective boards of directors and sometimes
collectively referred to as the "Constituent Corporations," is entered
into this 9th day of August, 2001 in Irvine, California, and will have
an effective date, if approved as set forth in Article I, Section 1
hereafter, of August 30,2001 ("Effective Date").
WHEREAS, DHTT Nevada is a corporation organized and existing
under the laws of the State of Nevada, having been incorporated on
June 20, 2001, with its principal business office to be located at 00
Xxxxxxxxx Xxxx, X-000, Xxxxxx, XX 00000;
WHEREAS, the authorized capital stock of DHTT Nevada is Five
Hundred and Fifty Million (550,000,000) shares of common stock, par
value of One Tenth of One Cent ($0.001) per share, none of which have
been issued; Five Million (5,000,000) Class A Preferred shares, par
value of One Tenth of One Cent ($0.001) per share, none of which have
been issued; and Ten Million (10,000,000) Class B Preferred shares,
par value of One Tenth of One Cent ($0.001) per share, none of which
have been issued.
WHEREAS, Nevada Revised Statutes 92A.190 confers upon DHTT Nevada
the power to merge with a foreign corporation, and Nevada Revised
Statutes 92A.250 confers upon DHTT Nevada the right to issue its own
shares in exchange for shares of any corporation to be merged into
DHTT Nevada;
WHEREAS, DHTT Florida is a corporation organized and existing
under the laws of the State of Florida, having been originally
incorporated in July 1998 as Xxxxxxxxxx.xxx, a closely held Nevada
corporation. On March 19,1999, Xxxxxxxxxx.xxx merged, in a reverse
merger transaction, with Systems Communication, Inc., a Florida
corporation, and the name of the surviving corporation was changed to
Xxxxxxxxxx.xxx, Inc. On February 16, 2001, an Amended Certificate of
Incorporation was filed with the Secretary of State, Florida amending
the First Article of the Certificate of Incorporation to change the
name of the corporation to Diamond Xxxxx Production, Inc.
WHEREAS, the authorized capital stock of DHTT Florida consists of
Five Hundred and Fifty Million (550,000,000) shares of common stock,
par value of One Tenth Cent ($0.001) per share, of which One Hundred
and Eighty Four Million, Two Hundred Thousand, One Hundred and Seventy
Two (184,200,172) shares are presently issued and outstanding; Five
Million (5,000,000) Class A Preferred shares, par value of One Tenth
Cent ($0.001) per share, of which none have been issued; and Ten
Million (10,000,000) Class B Preferred shares, par value of One Tenth
Cent ($0.001) per share, of which One Hundred Thousand (100,000) have
been issued Florida Statutes provide that a foreign corporation and
a domestic corporation may be merged and the foreign corporation can
be the surviving entity.
WHEREAS, the respective boards of directors of DHTT Nevada and
DHTT Florida deem it desirable and in the best interests of the
corporations and their stockholders that the corporations enter into
this Agreement and merge pursuant to the terms and conditions
contained herein and for the sole purpose of redomiciling the
corporation into the State of Nevada; and
WHEREAS, in order to consummate this merger and in consideration
of the mutual benefits to be derived and the mutual agreements
contained herein, DHTT Nevada and DHTT Florida approve and adopt this
Agreement.
NOW, THEREFORE, in consideration of the promises and mutual
agreements, provisions and covenants herein contained, it is agreed by
and between the parties that, in accordance with the provisions of the
laws of the State of Nevada, DHTT Nevada and DHTT Florida shall be,
and they are, as of the merger date (as defined in Article I, Section
2 hereafter) merged into a single surviving corporation, which shall
be and is DHTT Nevada, one of the Constituent Corporations, which
shall continue its corporate existence and remain a Nevada corporation
governed by the laws of that state, all on the terms and conditions
set forth as follows:
ARTICLE I
MERGER
1. Shareholder Approval.
This Agreement shall be submitted for approval and adoption,
pursuant to and in accordance with the applicable provisions of the
laws of the State of Nevada and the State of Florida, to the holders
of common stock of DHTT Nevada and to the holders of common shares of
DHTT Florida at duly held shareholders' meetings or by majority
written consent. This Agreement shall be approved and adopted upon
receiving the affirmative vote of the holders of a majority of the
common stock of DHTT Nevada outstanding on the record date established
for determining the holders of DHTT Nevada common stock entitled to
vote at such DHTT Nevada shareholders' meeting, and the affirmative
vote of a majority of the common shares of DHTT Florida outstanding on
the record date established for determining the holders of common
shares entitled to vote at such DHTT Florida shareholders' meeting.
If this Agreement shall be so approved and adopted, DHTT Nevada and
DHTT Florida shall immediately proceed to effectuate the merger of
DHTT Florida into DHTT Nevada. If this Agreement shall not be so
approved and adopted, it shall, without any further action by the
parties, other than certification to the other Constituent Corporation
of the results of the vote by the Secretary or Clerk, as the case may
be, of the Constituent Corporation the shareholders of which shall not
have approved or adopted this Plan, be cancelled without liability
from either party to the other.
2. Filings After Shareholder Approval.
Under Florida Statutes, DHTT Florida will cease to exist and DHTT
Nevada will possess all the powers and property formerly possessed by
DHTT Florida upon approval of this Agreement by its shareholders, and
the filing with the Florida Secretary of State the following (A) an
agreement that DHTT may be served with process in Florida, in any
proceeding for enforcement of any obligation of any constituent
corporation of Florida, as well as for enforcement of any obligation
of the surviving or resulting corporation arising from the merger or
consolidation, including any suit or other proceedings pursuant to
Florida Statutes, and shall irrevocably appoint the Secretary of State
as its agent to accept service of process in any such suit or other
proceedings and shall specify the address to which a copy of such
process shall be mailed by the Secretary of State.
As soon as practicable after the approval of the merger by the
shareholders of DHTT Nevada has been obtained and all other conditions
to the obligations of the parties to this agreement to the effect the
merger shall have been satisfied or waived, DHTT Nevada shall file
with the Nevada Secretary of State a duly executed Articles of Merger,
as required by Nevada Revised Statutes 92A.200, and take such other
and future actions as may be required by Nevada law to make the merger
effective. The merger of DHTT Florida into DHTT Nevada shall become
effective upon the filing of the Articles of Merger with the Nevada
Secretary of State ("Merger Date").
3. Effect of Merger.
DHTT Nevada shall succeed to, without other transfer, and shall
possess and enjoy all rights, privileges, powers and franchises of a
public as well as of a private nature, and be subject to all
restrictions, disabilities and duties of each of two Constituent
Corporations, and all and singular, the rights, privileges, powers and
franchises of each of corporations, and all property, real, personal
and mixed, and all debts to either of Constituent Corporations on
whatever account, as well for stock subscriptions as all other things
in action or belonging to each of the corporations shall be vested in
the Surviving Corporation; and all property, rights, privileges,
powers and franchises, and all and every other interest shall be as
effectually property of the Surviving Corporation as they were of
Constituent Corporations, provided, that all rights of creditors and
all liens on any property of each of Constituent Corporations shall be
preserved unimpaired, limited to property affected by the liens at
time of merger, and all debts, liabilities and duties of Constituent
Corporations shall attach to the Surviving Corporation, and may be
enforced against it to the same extent as if debts, liabilities and
duties had been incurred or contracted by it. If at any time the
Surviving Corporation shall deem or be advised that any further
assignments or assurances in law or things are necessary or desirable
to vest, or to perfect or confirm, of record or otherwise, in the
Surviving Corporation the title to any property acquired or to be
acquired by reason of or as a result of merger provided for by this
agreement, proper officers and directors of each of Constituent
Corporations shall execute and deliver all proper deeds, assignments
and assurances in law and do all things necessary or proper to vest,
perfect or confirm title to property in the Surviving Corporation and
otherwise to carry out the purpose of this Agreement.
ARTICLE II
NAME AND CONTINUED CORPORATE EXISTENCE
OF SURVIVING CORPORATION
The corporate name of DHTT Nevada, the Constituent Corporation
whose corporate existence is to survive this merger and continue
thereafter as the Surviving Corporation, and its identity, existence,
purposes, powers, objects, franchises, rights and immunities shall
continue unaffected and unimpaired by the merger, and the corporate
identity, existence, purposes, powers, objects, franchises, rights and
immunities of DHTT Florida shall be wholly merged into DHTT Nevada.
Accordingly, on the Merger Date the separate existence of DHTT
Florida, except insofar as continued by statute, shall cease.
ARTICLE III
GOVERNING LAW
CERTIFICATE OF INCORPORATION
As stated, the laws of State of Nevada shall govern the Surviving
Corporation. From and after the Merger Date, the Articles of
Incorporation of DHTT Nevada shall be and become the certificate of
incorporation of the Surviving Corporation.
ARTICLE IV
BYLAWS OF SURVIVING CORPORATION
From and after the Merger Date the present bylaws of DHTT Nevada
shall be and become the bylaws of the Surviving Corporation until they
shall be altered, amended or repealed, or until new bylaws shall be
adopted, in accordance with the provisions of law, the bylaws and the
certificate of incorporation of the Surviving Corporation.
ARTICLE V
DIRECTORS AND OFFICERS
1. Directors.
The number of directors of the Surviving Corporation, who shall
hold office until their successors have been duly elected and shall
have qualified, or as otherwise provided in the certificate of
incorporation of DHTT Nevada or its bylaws, shall be five (5) until
changed by action of the Board of Directors of the Surviving
Corporation pursuant to its bylaws; and the respective names of the
first directors of the Surviving Corporation are as follows:
Xxxx Xxxxx
Xxx X. Xxxxxxxx
Xxxx X. Xxxxx
Xxxxxxx Xxxxxxx
Xxxxx X. Xxxxx
If, on or after the Merger Date, a vacancy shall for any reason
exist
in the Board of Directors of the Surviving Corporation, or in any of
the offices, the vacancy shall be filled in the manner provided in the
certificate of incorporation of DHTT Nevada or in its bylaws.
2. Annual Meeting.
The first annual meeting of the shareholders of the Surviving
Corporation after the Merger Date shall be the annual meeting provided
by the bylaws of DHTT Nevada for the year 2001.
3. Officers.
The first officers of the Surviving Corporation, who shall hold
office until their successors have been elected or appointed and shall
have qualified, or as otherwise provided in its bylaws, are as
follows:
Xxxx Xxxxx, President
Xxxxxxx Xxxxxxx, Secretary
Xxx Xxxxxxx, Treasurer
ARTICLE VI
CAPITAL STOCK OF SURVIVING CORPORATION
The capitalization of the Surviving Corporation upon the Merger
Date shall be as set forth in the certificate of incorporation of DHTT
Nevada.
ARTICLE VII
CONVERSION OF SHARES ON MERGER
Each of the shares of common stock, par value of One Tenth Cent
($0.001) per share, of DHTT Florida outstanding on the Merger Date
("DHTT Florida Stock"), and all rights shall upon the Merger Date be
converted into one share of common stock, par value One Tenth of One
Cent ($0.001) per share of DHTT Nevada ("DHTT Nevada Stock"). At any
time and from time to time after the Merger Date, each holder of an
outstanding certificate or certificates representing shares of DHTT
Florida Stock shall be entitled, upon the surrender of the certificate
or certificates at the office of an transfer agent of DHTT Nevada to
be designated by the Board of Directors of DHTT Nevada to receive in
exchange a certificate or certificates representing the number of
shares of DHTT Nevada Stock into which the shares of DHTT Florida
Stock represented by the certificate or certificates surrendered shall
have been converted. No dividend shall be paid by DHTT Nevada to the
holders of outstanding certificates expressed to represent shares of
DHTT Florida Stock, but, upon surrender and exchange as provided,
there shall be paid to the record holder of the certificate or
certificates for DHTT Nevada Stock issued in exchange therefor an
amount with respect to each such share of DHTT Nevada Stock equal to
all dividends which shall have been paid or become payable to holders
of record of DHTT Nevada Stock between the Merger Date and the date of
exchange.
ARTICLE VIII
ASSETS AND LIABILITIES
On the Merger Date, all property, real, personal and mixed, and
all debts due to either of the Constituent Corporations on whatever
account, as well for stock subscriptions as all other choses in
action, and all and every other interest of or belonging to either of
Constituent Corporations shall be taken by and deemed to be
transferred to and vested in the Surviving Corporation without further
act or deed; and all property and every other interest shall be as
effectually the property of the Surviving Corporation as it was of the
respective Constituent Corporations, and the title to any real estate
or any interest, whether 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 all rights of creditors
and all liens upon the property of either of the Constituent
Corporations shall be preserved unimpaired, and all debts,
liabilities, obligations and duties of the respective Constituent
Corporations shall attach to the Surviving Corporation, and may be
enforced against it to the same extent as if the debts, liabilities,
obligations and duties had been incurred or contracted by it. Any
action or proceeding pending by or against either of the Constituent
Corporations may be prosecuted to judgment as if the merger had not
taken place, or the Surviving Corporation may be submitted in place of
either of the Constituent Corporations. The parties respectively agree
that from time to time, when requested by the Surviving Corporation or
by its successors or assigns, they will execute and deliver or cause
to be executed and delivered all deeds and instruments, and will take
or cause to be taken all further or other action, as the Surviving
Corporation may deem necessary or desirable in order to vest in and
confirm to the Surviving Corporation or its successors or assigns
title to and possession of all the property and rights and otherwise
carry out the intent and purposes of this Agreement.
ARTICLE IX
CONDUCT OF BUSINESS BY CONSTITUENT CORPORATIONS
Prior to the Merger Date DHTT Florida shall conduct its business
in its usual and ordinary manner, and shall not enter into any
transaction other than in the usual and ordinary course of such
business except as provided. Without limiting the generality of the
above, DHTT Florida shall not, except as otherwise consented to in
writing by DHTT Nevada or as otherwise provided in this agreement:
1. Issue or sell any shares of its capital stock in addition to
those outstanding on this date, except shares issued pursuant to
rights or options outstanding at that date;
2. Issue rights to subscribe to or options to purchase any shares of
its stock in addition to those outstanding on this date;
3. Amend its certificate of incorporation or its bylaws;
4. Issue or contract to issue funded debt;
5. Declare or pay any dividend or make any other distribution upon
or with respect to its capital stock.
6. Repurchase any of its outstanding stock or by any other means
transfer any of its funds to its shareholders either selectively or
rateably, in return for value or otherwise, except as salary or other
compensation in the ordinary or normal course of business;
7. Undertake or incur any obligations or liabilities except current
obligations or liabilities in the ordinary course of business and
except for liabilities for fees and expenses in connection with the
negotiation and consummation of the merger in amounts to be determined
after the Merger Date;
8. Mortgage, pledge, subject to lien or otherwise encumber any
realty or any tangible or intangible personal property;
9. Sell, assign or otherwise transfer any tangible assets of
whatever kind, or cancel any claims, except in the ordinary course of
business;
10. Sell, assign, or otherwise transfer any trademark, trade name,
patent or other intangible asset;
11. Default in performance of any material provision of any material
contract or other obligation;
12. Waive any right of any substantial value; or
13. Purchase or otherwise acquire any equity or debt security of
another corporation except to realize on an otherwise worthless debt.
ARTICLE X
WARRANTIES OF THE CONSTITUENT CORPORATIONS
1. Representations and Warranties of DHTT Florida.
DHTT Florida covenants, represents and warrants to DHTT Nevada
that:
a. It is on the date of this Agreement, and will be on the Merger
Date, (a) a corporation duly organized and existing and in good
standing under the laws of the jurisdiction of the State of Florida
(b) duly authorized under its articles, and under applicable laws, to
engage in the business carried on by it, and (c) it is fully qualified
to do business in the State of Florida;
b. All federal, state and local tax returns required to be filed by
it on or before the Merger Date will have been filed, and all taxes
shown to be required to be paid on or before the Merger Date will have
been paid;
c. It will use its best efforts to collect the accounts receivable
owned by it on or prior to the Merger Date and will follow its past
practices in connection with the extension of any credit prior to the
Merger Date;
d. All fixed assets owned by it and employed in its business are of
the type, kind and condition appropriate for its business and will be
operated in the ordinary course of business until the Merger Date;
e. All leases now held by it are now and will be on the Merger Date
in good standing and not voidable or void by reason of any default
whatsoever;
f. During the period between June 22, 2001, and the date of this
Agreement, except as disclosed in writing to DHTT Nevada, it has not
taken any action, or suffered any conditions to exist, to any material
or substantial extent in the aggregate, which it has agreed in Article
IX or this Article X of this Agreement not to take or to permit to
exist during the period between the date of this agreement and the
Merger Date;
g. It has not been represented by any broker in connection with the
transaction contemplated, except as it has advised DHTT Nevada in
writing; and
h. Its Board of Directors has, subject to the authorization and
approval of its stockholders, authorized and approved the execution
and delivery of this Agreement, and the performance of the
transactions contemplated by this Agreement.
i. DHTT Florida, in addition to other action which is has
covenanted, represented, and warranted to DHTT Nevada that it shall
take, shall also:
(1) Use its best efforts to preserve its business organization
intact, to keep available to DHTT Nevada the present officers and
employees of DHTT Florida, and to preserve for DHTT Nevada the
relationships of DHTT Florida with suppliers and customers and
others having business relations with DHTT Florida; and
(2) Not increase the compensation, wages, or other benefits
payable to its officers or employees, other than increases which
DHTT Nevada has approved in writing.
2. Representations and Warranties of DHTT Nevada.
DHTT Nevada covenants, represents and warrants to DHTT Florida
that:
a. DHTT Nevada is a corporation duly organized and existing and in
good standing under the laws of the State of Nevada and has the
corporate power to own its properties and to carry on its business as
now being conducted; and
b. Its Board of Directors has, subject to the authorization and
approval of its stockholders, authorized and approved the execution and
delivery of this Agreement, and the performance of the transactions
contemplated by this Agreement.
ARTICLE XI
CONSUMMATION OF MERGER
If the merger contemplated is completed, all expenses incurred in
consummating the plan of merger shall, except as otherwise agreed in
writing between the Constituent Corporations, be borne by DHTT Nevada.
If the merger is not completed, each of the Constituent Corporations
shall be liable for, and shall pay, the expenses incurred by it.
Notwithstanding shareholder authorization and at any time prior
to the filing, the filing and recording of this agreement may be
deferred from time to time by mutual consent of the respective boards
of directors of each of the Constituent Corporations, and, to the
extent provided in (a), (b), (c) and (d) below, the merger may be
abandoned:
1. By the mutual consent of the respective Boards of Directors of
each of the Constituent Corporations;
2. At the election of the Board of Directors of DHTT Nevada, if (a)
demands by shareholders for appraisal of their shares of DHTT Florida
Stock have been received from the holders of twenty-five percent (25%)
or more of the outstanding shares, or (b) in the judgment of the Board
any judgment is rendered relating to any legal proceeding not
commenced and the existence of the judgment will or may materially
affect the rights of either Constituent Corporation to sell, convey,
transfer or assign any of its assets or materially interfere with the
operation of its business, renders the merger impracticable,
undesirable or not in the best interests of its shareholders;
3. By the Board of Directors of DHTT Nevada if there shall not have
been submitted to DHTT Nevada the opinion of counsel for DHTT Florida,
in form and substance satisfactory to DHTT Nevada, to the effect that
(1) DHTT Florida is a validly organized and duly existing corporation,
(2) this Agreement has been duly authorized by, and is binding upon,
DHTT Florida in accordance with its terms, and (3) all the
properties, estate, rights, privileges, powers and franchises of DHTT
Florida and all debts due to DHTT Florida shall be transferred to and
vested in DHTT Nevada, as the Surviving Corporation, without further
act or deed, subject only to any legal requirements for recording or
filing any instruments of conveyance, assignment or transfer, the
giving of notice of any such conveyance, assignment or transfer,
consents of third parties and governmental authorities to assignment
of any contract or lease, and other specified exceptions acceptable to
DHTT Nevada;
4. At the election of the Board of Directors of DHTT Florida if
there shall not have been submitted to DHTT Florida the opinion of
counsel for DHTT Nevada, in form and substance satisfactory to DHTT
Florida, to the effect that (1) DHTT Nevada is a validly organized and
duly existing corporation, (2) this Agreement has been duly authorized
by, and is binding upon, DHTT Nevada in accordance with its terms, (3)
when Articles of Merger shall have been filed as provided in this
Agreement, the merger will become effective and all liabilities and
obligations of DHTT Florida will become the liabilities and
obligations of DHTT Nevada, as the surviving corporation, fully and
without any further action by either Constituent Corporation, (4) the
DHTT Florida Stock will be converted into DHTT Nevada Stock, (5) the
DHTT Nevada Stock into which the DHTT Florida Stock will be converted
as provided herein will be legally and validly authorized, exempt from
the registration requirements of Section 5 of the Securities Act of
1933, as amended, ("Act'), provided by Section 3(a)(10) thereof,
exempt from the registration requirements of Nevada Revised Statutes
90.460, as amended, provided by Nevada Revised Statutes 90.530(11),
and may be issued without a restrictive legend pursuant to Rule
145(a)(2) under the Act if the shares of DHTT Florida are otherwise
unrestricted, and (6) when issued will be validly issued, fully paid
and nonassessable stock of the surviving corporation;
5. At the election of the Board of Directors of either Constituent
Corporation if:
a. The warranties and representations of the other Constituent
Corporation contained in this Agreement shall not be substantially
accurate in all material respects on and as of the date of election;
or the covenants contained of the other Constituent Corporation shall
not have been performed or satisfied in all material respects;
b. Prior to the merger (1) there shall have been filed in any court
or agency having jurisdiction a complaint or other proceeding seeking
to restrain or enjoin the merger contemplated hereby, or (2) there
shall have been presented to DHTT Florida or DHTT Nevada or any
director or officer of either of them any process, demand or request
which, in the opinion of counsel for either Constituent Corporation,
offers reasonable ground to believe that a complaint or xxxx in equity
may be forthcoming which, if successful, would restrain, enjoin or
dissolve the merger, and if, in either case, such Board of Directors
determines that abandonment and cancellation of this Agreement is
advisable in the best interests of the Constituent Corporations, their
shareholders, employees and customers;
c. If the Merger Date shall not have occurred by September 15, 2001,
then, at the option of the Board of Directors of either Constituent
Corporation, it may be deferred to a date on or after September 15,
2001. If the Merger Date shall not have occurred by October 15, 2001,
then, at the option of the Board of Directors of either Constituent
Corporation the merger may be abandoned. In the event of the
abandonment of the merger pursuant to the foregoing provisions, this
Agreement shall become void and have no effect, without any liability
on the part of either of the Constituent Corporations or its
shareholders or directors or officers in respect of this merger except
the obligation of each Constituent Corporation to pay its own expenses
as provided in this Article XI.
ARTICLE XII
RESIDENT AGENT
The respective names of the county and the city within the county
in which the principal office of the surviving corporation is to be
located in the State of Nevada, the street and number of this office,
the name of the registered agent will, as of the Merger Date, be as
set forth in Article Second of the Articles of Incorporation of the
Surviving Corporation.
ARTICLE XIII
RIGHT TO AMEND ARTICLES OF INCORPORATION
The Surviving Corporation reserves the right to amend, alter,
change or repeal its Articles of Incorporation in the manner now or
later prescribed by statute or otherwise authorized by law; and all
rights and powers conferred in the certificate of incorporation on
shareholders, directors or officers of DHTT Nevada, or any other
person, are subject to this reserved power.
ARTICLE XIV
MISCELLANEOUS
1. Access to Books and Records.
To enable DHTT Nevada to coordinate the activities of DHTT
Florida into those of DHTT Nevada on and after the Merger Date, DHTT
Florida shall, before the Merger Date, afford to the officers and
authorized representatives of DHTT Nevada free and full access to the
plants, properties, books and records of DHTT Florida, and the
officers of DHTT Florida will furnish DHTT Nevada with financial and
operating data and other information as to the business and properties
of DHTT Florida as DHTT Nevada shall from time to time reasonably
request. DHTT Nevada shall, before the Merger Date, afford to the
officers and authorized representatives of DHTT Florida such access,
and DHTT Nevada's officers will furnish such data and information to
DHTT Florida, as may be reasonably required by DHTT Florida for the
preparation of its proxy statement in connection with the meeting of
shareholders to be called pursuant to section 1 of Article I of this
Agreement. DHTT Nevada and DHTT Florida agree that, unless and until
the merger contemplated by this Agreement has been consummated, DHTT
Nevada and DHTT Florida and their officers and representatives will
hold in strict confidence all data and information obtained from one
another as long as it is not in the public domain, and if the merger
provided for is not consummated as contemplated, DHTT Nevada and DHTT
Florida will each return to the other party all data as the other
party may reasonably request.
2. Rights Cumulative; Waivers.
The rights of each of the parties under this Agreement are
cumulative. The rights of each of the parties hereunder shall not be
capable of being waived or varied other than by an express waiver or
variation in writing. Any failure to exercise or any delay in
exercising any of such rights shall not operate as a waiver or
variation of that or any other such right. Any defective or partial
exercise of any of such rights shall not preclude any other or further
exercise of that or any other such right. No act or course of conduct
or negotiation on the part of any party shall in any way preclude such
party from exercising any such right or constitute a suspension or any
variation of any such right.
3. Benefit; Successors Bound.
This Agreement and the terms, covenants, conditions, provisions,
obligations, undertakings, rights, and benefits hereof, shall be
binding upon, and shall inure to the benefit of, the undersigned
parties and their heirs, executors, administrators, representatives,
successors, and permitted assigns.
4. Entire Agreement.
This Agreement contains the entire agreement between the parties
with respect to the subject matter hereof. There are no promises,
agreements, conditions, undertakings, understandings, warranties,
covenants or representations, oral or written, express or implied,
between them with respect to this Agreement or the matters described
in this Agreement, except as set forth in this Agreement. Any such
negotiations, promises, or understandings shall not be used to
interpret or constitute this Agreement.
5. Assignment.
Neither this Agreement nor any other benefit to accrue hereunder
shall be assigned or transferred by either party, either in whole or
in part, without the written consent of the other party, and any
purported assignment in violation hereof shall be void.
6. Amendment.
This Agreement may be amended only by an instrument in writing
executed by all the parties hereto.
7. Severability.
Each part of this Agreement is intended to be severable. In the
event that any provision of this Agreement is found by any court or
other authority of competent jurisdiction to be illegal or
unenforceable, such provision shall be severed or modified to the
extent necessary to render it enforceable and as so severed or
modified, this Agreement shall continue in full force and effect.
8. Section Headings.
The Section headings in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of
this Agreement.
9. Construction.
Unless the context otherwise requires, when used herein, the
singular shall be deemed to include the plural, the plural shall be
deemed to include each of the singular, and pronouns of one or no
gender shall be deemed to include the equivalent pronoun of the other
or no gender.
10. Further Assurances.
In addition to the instruments and documents to be made, executed
and delivered pursuant to this Agreement, the parties hereto agree to
make, execute and deliver or cause to be made, executed and delivered,
to the requesting party such other instruments and to take such other
actions as the requesting party may reasonably require to carry out
the terms of this Agreement and the transactions contemplated hereby.
11. Notices.
Any notice which is required or desired under this Agreement
shall be given in writing and may be sent by personal delivery or by
mail (either a. United States mail, postage prepaid, or b. Federal
Express or similar generally recognized overnight carrier), addressed
as follows (subject to the right to designate a different address by
notice similarly given):
To DHTT Nevada:
00 Xxxxxxxxx Xxxx, Xxxxx X-000
Xxxxxx, XX 00000
To DHTT Florida:
00 Xxxxxxxxx Xxxx, Xxxxx X-000
Xxxxxx, XX 00000
12. Governing Law.
This Agreement shall be construed and enforced under, in
accordance with, and governed by, the laws of the State of Nevada.
13. Consents.
The person signing this Agreement on behalf of each party hereby
represents and warrants that he has the necessary power, consent and
authority to execute and deliver this Agreement on behalf of such
party.
14. Termination of Agreement.
This Agreement shall terminate on the Effective Date unless
all actions required under this Agreement have not been fully
performed.
15. Survival of Provisions.
The representations and warranties contained in Article X of this
agreement and any liability of one Constituent Corporation to the
other for any default under the provisions of Articles IX or X of this
agreement, shall expire with, and be terminated and extinguished by,
the merger under this agreement on the Merger Date.
16. Execution in Counterparts.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original and all of which together
shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the date first above written.
DHTT NEVADA:
By: /s/ Xxxx Xxxxx
Xxxx Xxxxx, President
DHTT FLORIDA:
By: /s/ Xxxx Xxxxx
Xxxx Xxxxx, President
