STOCK PURCHASE AGREEMENT BETWEEN APPLIED DIGITAL SOLUTIONS, INC. AND DIGITAL ANGEL CORPORATION February 25, 2005
Exhibit
2.11
BETWEEN
APPLIED
DIGITAL SOLUTIONS, INC.
AND
DIGITAL
ANGEL CORPORATION
February
25, 2005
This
Stock Purchase Agreement is entered into as of February 25, 2005 (the
“Closing
Date”), by
Applied Digital Solutions, Inc., a Missouri corporation (the “Purchaser” or
“ADSX”), and
its majority-owned subsidiary, Digital Angel Corporation, a Delaware corporation
(“Seller” or
“DOC”).
Preliminary
Statements
For
strategic investment purposes, ADSX wishes to purchase from DOC and DOC wishes
to sell to ADSX, in a transaction exempt from the registration requirements of
the Securities Act of 1933, as amended, newly-issued shares of the common stock
of DOC in consideration for newly issued shares of the common stock of ADSX
(which ADSX will seek to register for resale pursuant to the provisions of the
Securities Act of 1933, as amended), on the terms and subject to the conditions
set forth in this Agreement. ADSX currently owns approximately 54% of the
outstanding DOC Common Stock (as defined hereunder) and has consented to the
transactions contemplated herein.
Agreement
In
consideration of the preliminary statements and the respective mutual covenants,
representations and warranties herein contained, the parties hereto agree as set
forth below.
ARTICLE
I
Definitions
In
addition to terms defined elsewhere in this Agreement, the following terms when
used in this Agreement shall have the meanings indicated below:
“ADSX
Common Stock” shall
mean the common stock of ADSX, par value $.01 per share.
“ADSX
VWAP” means,
for any date, the daily volume weighted average price of the ADSX Common Stock
for such date as reported by Bloomberg Financial, L.P. (based on a Trading Day
from 9:30 a.m. ET to 4:02 p.m. Eastern Time) using the VAP (volume average
price) function.
“Agreement” shall
mean this Stock Purchase Agreement together with all exhibits and schedules
referred to herein.
“Agreement
Effective Date” shall
mean the date of execution of this Agreement.
“Commission” shall
mean the Securities and Exchange Commission.
“DOC
Common Stock” shall
mean the common stock of DOC, par value $.005 per share.
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“DOC
VWAP” means,
for any date, the daily volume weighted average price of the DOC Common Stock
for such date as reported by Bloomberg Financial, L.P. (based on a Trading Day
from 9:30 a.m. ET to 4:02 p.m. Eastern Time) using the VAP (volume average
price) function.
“Exchange
Act” shall
mean the Securities Exchange Act of 1934, as amended.
“Person” shall
mean any natural person, corporation, unincorporated organization, partnership,
association, joint stock company, joint venture, trust or government, or any
agency or political subdivision of any government or any other
entity.
“SEC
Reports” means
all reports required to be filed by ADSX and DOC under the Exchange Act,
including pursuant to Section 13(a) or 15(d) thereof, for the one year preceding
the date hereof.
“Securities
Act” shall
mean the Securities Act of 1933, as amended.
“Trading
Day” means a
day on which the DOC Common Stock is traded on the American Stock Exchange and a
day on which the ADSX Common Stock is traded on the Nasdaq SmallCap Market, or
if the ADSX Common Stock is not listed on the Nasdaq SmallCap Market, a day on
which the ADSX Common Stock is traded in the over-the-counter market, as
reported by the OTC Bulletin Board or is quoted in the over-the-counter market
as reported by the National Quotation Bureau Incorporated.
ARTICLE
II
Purchase
of Securities; Consideration
2.1
Securities
to be Purchased. On and
subject to the terms and conditions set forth herein, on the Closing Date, DOC
shall sell to ADSX, and ADSX shall purchase from DOC, all of DOC’s right, title
and interest in and to an aggregate of $3,500,000 worth of shares of DOC Common
Stock at a purchase price equaling the average of the VWAPs of the DOC Common
Stock for the ten Trading Days immediately preceding (and not including) the
Closing Date (“Per
Share Purchase Price”) (the
“DOC
Shares”).
2.2
Consideration. The
purchase price for the DOC Shares shall be $3,500,000 (“Purchase
Price”),
payable by ADSX on the Closing date (as defined hereunder) by delivery, in the
aggregate, of the number of shares of ADSX Common Stock equal in value to
$3,500,000 (the “ADSX
Exchange Shares”).
2.3
Place
of Closing; Closing Date. The
closing of the purchase and sale of the DOC Shares under this Agreement will
take place at the offices of the Purchaser or other location as may be mutually
agreed by Purchaser and Seller, and shall occur on the date hereof (the
“Closing
Date”).
2.4
Closing
Price. The per
share exchange price for the ADSX Exchange Shares issuable under this Agreement
on the Closing Date shall equal the average of the ADSX VWAP for the ten (10)
Trading Days immediately preceding (and not including) the Closing
Date.
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2.5
Deliveries
of DOC Shares and ADSX Exchange Shares on the Closing Date. Subject
to the terms and conditions of this Agreement and including but not limited to
the closing requirements of Section 7.1, on the Closing Date: (i) DOC will
deliver to ADSX that number of restricted DOC Shares being purchased as
calculated in Section 2.1, and (ii) ADSX will, upon receipt of the DOC Shares,
deliver to DOC, that number of restricted ADSX Exchange Shares being exchanged
in consideration for the DOC Shares as calculated in Section 2.2.
2.6
Fractional
Shares. DOC and
ADSX shall receive a whole number of shares of DOC Shares and ADSX Exchange
Shares, respectively, and no fractional shares of DOC Shares and ADSX Exchange
Shares shall be issued. In lieu of fractional shares, DOC and ADSX shall deliver
to the other respective party, cash or a company check in the amount of the
fractional shares(s) otherwise issuable to ADSX or DOC by the other party based
on the Closing Price or Fixed Price respectively. The parties hereto hereby
direct their transfer agents to issue and deliver to the other party the shares
in certificate form and agree to provide any and all legal opinions and
supporting documentation as may be required by their transfer agent to
effectuate such immediate issuance and delivery of the Shares.
ARTICLE
III
Representations
and Warranties of DOC
In order
to induce ADSX to enter into this Agreement and to consummate the transactions
contemplated hereby, DOC makes the representations and warranties set forth
below to ADSX.
3.1
Organization;
Standing and Power. DOC is
a corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware with the requisite corporate power and authority
to own and use its properties and assets and to carry on its business as
currently conducted.
3.2
Authorization;
Enforceability. The
execution, delivery and performance of this Agreement by DOC and the
consummation by DOC of the transactions contemplated hereby have been duly
authorized by all requisite corporate action. This Agreement has been duly
executed and delivered by DOC, and constitutes the legal, valid and binding
obligation of DOC, enforceable in accordance with its terms, except to the
extent that its enforcement is limited by bankruptcy, insolvency, reorganization
or other laws relating to or affecting the enforcement of creditors’ rights
generally and by general principles of equity.
3.3
No
Violation or Conflict. The
execution, delivery and performance of this Agreement by DOC and the
consummation by DOC of the transactions contemplated hereby: (a) do not and will
not violate or conflict with any provision of law or regulation, or any writ,
order, judgment or decree of any court or governmental or regulatory authority,
or any provision of DOC’s Certificate of Incorporation or Bylaws; and (b) do not
and will not, with or without the passage of time or the giving of notice,
result in the breach of, or constitute a default, cause the acceleration of
performance, or require any consent under, or result in the creation of any
lien, charge or encumbrance upon any property or assets of DOC pursuant to any
material instrument or agreement to which DOC is a party or by which DOC or its
properties may be bound or
3
affected,
other than instruments or agreements as to which consent shall have been
obtained at or prior to the Closing Date.
3.4
Consent
of Governmental Authorities. Other
than in connection with the Securities Act, the Exchange Act and the rules of
the American Stock Exchange, no consent, approval or authorization of, or
registration, qualification or filing with any federal, state or local
governmental or regulatory authority is required to be made by DOC in connection
with the execution, delivery or performance by DOC of this Agreement or the
consummation by DOC of the transactions contemplated hereby.
3.5
Validity
of Securities. When
issued in accordance with this Agreement, the DOC Shares shall be duly and
validly authorized, legally issued and outstanding, fully paid and
non-assessable, shall not have been issued in violation of the preemptive rights
of any Person, and free and clear of all liens and encumbrances.
3.6
Absence
of Material Adverse Changes; Disclosure of Material Non-Public Information; SEC
Reports. Since
the filing by DOC of its Quarterly Report on Form 10-Q for the quarter ended
September 30, 2004 and all current reports filed on Form 8-K since such date,
with the Commission, there have been no material adverse changes to the assets,
liabilities, business or condition (financial or otherwise) of DOC, and all
disclosures of material non-public information required pursuant to the
Securities Act and the Exchange Act have been made accordingly. As of their
respective dates, the SEC Reports complied in all material respects with the
requirements of the Securities Act and the Exchange Act and the rules and
regulations of the Commission promulgated thereunder, and none of the SEC
Reports contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
ARTICLE
IV
Representations
and Warranties of ADSX
In order
to induce DOC to enter into this Agreement and to consummate the transaction
contemplated hereby, ADSX makes the representations and warranties set forth
below to DOC.
4.1
Organization;
Standing and Power. ADSX is
a corporation duly incorporated, validly existing and in good standing under the
laws of the State of Missouri with the requisite corporate power and authority
to own and use its properties and assets and to carry on its business as
currently conducted.
4.2
Authorization;
Enforceability. The
execution, delivery and performance of this Agreement by ADSX and the
consummation by ADSX of the transactions contemplated hereby have been duly
authorized by all requisite corporate action. This Agreement has been duly
executed and delivered by ADSX, and constitutes the legal, valid and binding
obligation of ADSX, enforceable in accordance with its terms, except to the
extent that its enforcement is limited by bankruptcy, insolvency, reorganization
or other laws relating to or affecting the enforcement of creditors’ rights
generally and by general principles of equity.
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4.3
No
Violation or Conflict. The
execution, delivery and performance of this Agreement by ADSX and the
consummation by ADSX of the transactions contemplated hereby: (a) do not and
will not violate or conflict with any provision of law or regulation, or any
writ, order, judgment or decree of any court or governmental or regulatory
authority, or any provision of ADSX’s Articles of Incorporation or Bylaws; and
(b) do not and will not, with or without the passage of time or the giving of
notice, result in the breach of, or constitute a default, cause the acceleration
of performance, or require any consent under, or result in the creation of any
lien, charge or encumbrance upon any property or assets of ADSX pursuant to any
material instrument or agreement to which ADSX is a party or by which ADSX or
its properties may be bound or affected, other than instruments or agreements as
to which consent shall have been obtained at or prior to the Closing
Date.
4.4
Consent
of Governmental Authorities. Other
than in connection with the Securities Act, the Exchange Act and the rules of
the Nasdaq Stock Market, no consent, approval or authorization of, or
registration, qualification or filing with any federal, state or local
governmental or regulatory authority is required to be made by ADSX in
connection with the execution, delivery or performance by ADSX of this Agreement
or the consummation by ADSX of the transactions contemplated
hereby.
4.5
Validity
of Securities. When
issued in accordance with this Agreement, the ADSX Exchange Shares shall be duly
and validly authorized, legally issued and outstanding, fully paid and
non-assessable, shall not have been issued in violation of the preemptive rights
of any Person, and free and clear of all liens and encumbrances.
4.6
Absence
of Material Adverse Changes; Disclosure of Material Non-Public Information; SEC
Reports. Since
the filing by ADSX of its Quarterly Report on Form 10-Q for the quarter ended
September 30, 2004, and all current reports on Form 8-K filed since such date,
with the Commission, there have been no material adverse changes to the assets,
liabilities, business or condition (financial or otherwise) of ADSX, and all
disclosures of material non-public information required pursuant to the
Securities Act and the Exchange Act have been made accordingly. As of their
respective dates, the SEC Reports complied in all material respects with the
requirements of the Securities Act and the Exchange Act and the rules and
regulations of the Commission promulgated thereunder, and none of the SEC
Reports, contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
ARTICLE
V
Covenants
5.1
Use of
Proceeds. DOC
covenants and agrees that the ADSX Exchange Shares shall be utilized to complete
the proposed transaction with DSD/Daploma on February 28, 2005. It is
expressly understood that the covenants of DOC contained in this Section 5.1
shall survive the Closing.
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5.2
Confidentiality. Except
as otherwise required in the performance of obligations under this Agreement and
except as otherwise required by law, any nonpublic information received by a
party or its advisors from the other party shall be kept confidential and shall
not be used or disclosed for any purpose other than in furtherance of the
transactions contemplated by this Agreement. The obligation of confidentiality
shall not extend to information (a) which is or shall become generally available
to the public other than as a result of an unauthorized disclosure by a party to
this Agreement or a person to whom a party has provided such information, (b)
which is or becomes known by or available to a party to this Agreement on a
nonconfidential basis prior to its disclosure by one party to the other pursuant
to this Agreement, or (c) which is or becomes available to a party on a
nonconfidential basis from a source other than a party to this Agreement. Upon
termination of this Agreement, each party shall promptly return any confidential
information received from the other party and, upon request, shall destroy any
copies of such information in its possession. The covenants of the parties
contained in this Section 5.2 shall survive any termination of this
Agreement.
5.3
Notification. Each
party to this Agreement shall promptly notify the other parties in writing of
the occurrence, or pending or threatened occurrence, of any event that would
constitute a breach or violation of this Agreement by any party or that would
cause any representation or warranty made by the notifying party in this
Agreement to be false or misleading in any respect. Any such notification shall
not limit or alter any of the representations, warranties or covenants of the
parties set forth in this Agreement nor any rights or remedies a party may have
with respect to a breach of any representation, warranty or
covenant.
5.4
Further
Assurances. The
parties hereto shall deliver any and all other instruments or documents required
to be delivered pursuant to, or necessary or proper in order to give effect to,
all of the terms and provisions of this Agreement including, without limitation,
all necessary stock powers and such other instruments of transfer as may be
necessary or desirable to transfer ownership of the DOC Shares or the ADSX
Exchange Shares and to consummate the transactions contemplated by this
Agreement.
ARTICLE
VI
Additional
Agreements
6.1
Survival
of the Representations and Warranties. The
representations and warranties of ADSX and of DOC set forth in this Agreement
shall terminate immediately following the Closing Date (or any alternative
closing date).
6.2
Investigation. The
representations, warranties, covenants and agreements set forth in this
Agreement shall not be affected or diminished in any way by any investigation
(or failure to investigate) at any time by or on behalf of the party for whose
benefit such representations, warranties, covenants and agreements were made.
All statements contained herein or in any schedule, certificate, exhibit, list
or other document delivered pursuant hereto or in connection with the
transactions contemplated hereby shall be deemed to be representations and
warranties for purposes of this Agreement.
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6.3
Arbitration. Any and
all claims, disputes or matters in controversy arising under this Agreement
which the parties are unable to settle by mutual agreement shall be resolved by
binding arbitration pursuant to the Commercial Arbitration Rules of the American
Arbitration Association as in force at the time (“AAA”).
(a) A party
which desires to submit a claim, dispute or controversy to binding arbitration
under this Section 6.3 shall so notify the other parties, and if after 30 days
from the date of such notice the claim, dispute or controversy remains
unsettled, any party may petition the AAA for arbitration of the claim, dispute
or controversy. Matters submitted to arbitration shall be resolved in accordance
with the decision of a panel of three arbitrators selected by the AAA. The
arbitrators shall be experienced in the resolution of commercial disputes
arising in the context of negotiated acquisitions of businesses, and the place
of arbitration shall be either Xxxx Xxxx Xxxxx xx Xxxxxx Xxxxx,
Xxxxxxx.
(b) The three
arbitrators shall investigate the facts and shall hold hearings at which the
parties to this Agreement may present evidence and arguments, be represented by
counsel and conduct cross-examination. In determining any question, matter or
dispute before them, the arbitrators shall apply the provisions of this
Agreement and shall not have the power to add to, modify or change any of the
provisions of this Agreement. The three arbitrators shall render a written
decision upon the matter presented to them by a majority vote within 90 days
after the date on which the hearings and presentation of evidence are concluded,
unless a longer period is provided under the rules of the AAA. The decision
rendered by the arbitrators shall be final and binding on, and unappealable by,
the parties. Judgment upon the decision rendered in such arbitration may be
entered by any court having jurisdiction thereof. No party to an arbitration
proceeding shall be considered in default hereunder during the pendency of
arbitration proceedings relating to a disputed default. If the three arbitrators
fail to render a timely decision, then, to the extent permitted by law, any
party shall have the right to institute an action or proceeding in such court as
shall be appropriate in the circumstances, and, upon the institution of such
action, the arbitration proceeding shall be terminated and shall be of no
further force and effect. The arbitrators shall determine in what proportion the
parties shall bear the fees and expenses of the arbitrators, and each party
shall otherwise bear its own fees and expenses, including expenses of legal
counsel and other advisors or consultants. It is the intention of the parties
that arbitration as described above be the sole and exclusive means available to
them for the resolution of claims, disputes or matters in controversy arising
under this Agreement, other than claims, disputes and matters arising under
those provisions referred to in the first sentence of this Section 6.3, and only
in the event that the arbitrators fail to render a decision in accordance with
the foregoing provisions shall a party have the right to institute legal action
with respect to such claim, dispute or matter. Accordingly, it shall be a
complete defense to any action instituted by a party with respect to a claim,
dispute or matter in controversy under this Agreement that such claim, dispute
or matter has not first been submitted to arbitration in accordance with the
foregoing provisions.
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ARTICLE
VII
Closing;
Conditions Precedent
7.1
Closing. All
proceedings to be taken and all documents to be executed on the Closing Date
shall be deemed to have been taken, delivered and executed simultaneously, and
no proceeding shall be deemed taken nor documents deemed executed or delivered
until all have been taken, delivered and executed. On the Closing Date, DOC
shall deliver to ADSX (i) the DOC Shares in accordance with the procedure
described in Section 2.4, free and clear of any and all claims, liens, charges,
security interests, pledges or encumbrances of any nature whatsoever and
together with all accrued benefits and rights attaching thereto; (ii)
certificate of the Secretary of State of Delaware as of a recent date as to the
good standing of DOC and its Certificate of Incorporation; (iii) such other
documents as may be specified, or required to satisfy the conditions set forth,
in Sections 7.2 and 7.3; and (iv) such other documents and instruments as ADSX
may reasonably request. On the
Closing Date, ADSX shall deliver to DOC (i) the ADSX
Exchange Shares in accordance with the procedure described in Section 2.6, free
and clear of any and all claims, liens, charges, security interests, pledges or
encumbrances of any nature whatsoever and together with all accrued benefits and
rights attaching thereto; (ii) certificate of the Secretary of State of Missouri
as of a recent date as to the good standing of ADSX and its Articles of
Incorporation, as amended; (ii) such
other documents as may be specified, or required to satisfy the conditions set
forth, in Sections 7.2 and 7.3; and (iii) such other documents and instruments
as DOC may reasonably request.
7.2
Conditions
Precedent to the Obligations of ADSX. All of
the obligations of ADSX under this Agreement are subject to the satisfaction at
or prior to the Closing Date (or any alternative closing date) of each and every
one of the following conditions.
(a) Representations
and Warranties True. Each of
the representations and warranties of DOC contained herein or in any certificate
or other document delivered pursuant to this Agreement or in connection with the
transaction contemplated hereby shall be true and correct in all material
respects (except for representations and warranties which are by their terms
qualified by materiality, which shall be true and correct in all respects) as of
the Closing Date with the same force and effect as though made on and as of such
date.
(b) Performance. DOC
shall have performed and complied in all material respects with all of the
agreements, covenants and obligations required under this Agreement to be
performed or complied with by them on or prior to the Closing Date.
(c) Consents. DOC
shall have obtained all material authorizations, consents, waivers and approvals
as may be required to consummate the transaction contemplated by this
Agreement.
(d) DOC
Audit Committee and Board Approval. The
Audit Committee and the Board of Directors of DOC shall have approved the
execution, delivery and performance of this Agreement by DOC.
(e) Seller’s
Certificate. DOC
shall have delivered to ADSX a certificate executed by DOC, dated the Closing
Date, certifying in such detail as ADSX may reasonably request, that the
conditions specified in Sections 7.2(a), (b), (c) and (d) above have been
fulfilled and as to such other matters as ADSX may reasonably
request.
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7.3
Conditions
Precedent to the Obligations of DOC. All of
the obligations of DOC under this Agreement are subject to the satisfaction at
or prior to the Closing Date (or any alternative closing date) of each and every
one of the following conditions.
(a) Representations
and Warranties True. Each of
the representations and warranties of ADSX contained herein or in any
certificate or other document delivered pursuant to this Agreement or in
connection with the transaction contemplated hereby shall be true and correct in
all material respects (except for representations and warranties which are by
their terms qualified by materiality, which shall be true and correct in all
respects) as of the Closing Date with the same force and effect as though made
on and as of such date.
(b) Performance. ADSX
shall have performed and complied in all material respects with all of the
agreements, covenants and obligations required under this Agreement to be
performed or complied with by it on or prior to the Closing Date.
(c) Consents. ADSX
shall have obtained all material authorizations, consents, waivers and approvals
as may be required to consummate the transaction contemplated by this
Agreement.
(d) ADSX
Audit Committee and Board Approval. The
Audit Committee and the Board of Directors of ADSX shall have approved the
execution, delivery and performance of this Agreement by ADSX.
(e) Purchaser’s
Certificate. ADSX
shall have delivered to DOC a certificate executed by ADSX, dated the Closing
Date, certifying in such detail as DOC may reasonably request, that the
conditions specified in Sections 7.3(a), (b), (c) and (d) above have been
fulfilled and as to such other matters as DOC may reasonably
request.
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ARTICLE
VIII
Registration
8.1
Registration
of ADSX
Exchange Shares. As soon
as practicable after DOC has delivered the ADSX Exchange Shares to the
DSD/Daploma shareholders, ADSX shall prepare and file with the Commission the
Registration Statement covering the resale of the ADSX Exchange Shares for an
offering to be made under the Securities Act. The Registration Statement shall
be on Form S-1 (or Form S-3 if ADSX is then eligible to register for resale the
Securities on Form S-3). ADSX shall use its best efforts to cause the
Registration Statement to be declared effective under the Securities Act as
promptly as possible after the filing thereof, and shall use its best efforts to
keep such Registration Statement continuously effective under the Securities Act
until the date when all ADSX Exchange Shares covered by the Registration
Statement have been sold or may be sold without volume restrictions pursuant to
Rule 144(k) as determined by counsel to ADSX pursuant to a written opinion
letter to such effect, addressed and acceptable to ADSX’s transfer agent. ADSX
shall notify DOC via facsimile or e-mail, followed by regular U.S. Mail, of the
effectiveness of the Registration Statement immediately after ADSX receives
notification of the effectiveness of such Registration Statement from the
Commission;
8.2
DOC
Registrable Shares’ Registration Rights; Piggyback
Registration; Demand Registration.
(a) At
any time and from time to time after the date of this Agreement, whenever DOC
proposes to file a registration statement, DOC shall no less than fifteen (15)
days prior to such filing give written notice to ADSX of its intention to do so
and, upon the written request of ADSX given within ten (10) days after DOC
provides such notice, shall use its good faith efforts to cause all DOC
Registrable Shares which DOC has been requested by ADSX to register to be
registered under the Securities Act to the extent necessary to permit their sale
or other disposition in accordance with the intended methods of distribution
specified in the request of ADSX.
(b) At
any time and from time to time after the date of this Agreement, upon receipt of
a written request from ADSX specifying the number of DOC Registrable Shares that
ADSX desires to register for public sale, DOC promptly shall prepare and file
with the Commission within 120 days of the written request a registration
statement under the Securities Act covering a public offering of the DOC
Registrable Shares and shall use all reasonable efforts to cause the
registration statement to become effective as soon as is practicable. If
permitted by the Securities Act, DOC shall use a Form S-3 registration statement
(or any successor form) to register the DOC Registrable Shares pursuant to this
Section 8.2(b). If it is ineligible to use a Form S-3 registration statement,
DOC may use any other form of SEC registration statement that it considers
appropriate, as long as DOC is eligible to use the form and the form does not
impair in any way ADSX’s ability to publicly offer and sell any DOC Registrable
Shares compared to such ability if DOC were eligible to use Form S-3.
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ARTICLE
IX
Termination
9.1
Termination. This
Agreement may be terminated as follows: (i) by mutual written consent of the
parties at any time prior to an alternative closing date (in lieu of the Closing
Date); and (ii) ADSX or DOC may terminate this Agreement by giving written
notice to the other party at any time prior to an alternative closing date (in
lieu of the Closing Date) if either ADSX or DOC has breached any representation,
warranty or covenant contained in this Agreement in any material
respect.
9.2
Effect
of Termination. If ADSX
or DOC terminates this Agreement pursuant to Section 9.1(ii), all rights and
obligations of the parties hereunder shall terminate without any liability of
any party to the other party.
ARTICLE
X
Miscellaneous
10.1
Notices. Any
notice, demand, claim or other communication under this Agreement shall be in
writing and shall be delivered personally or sent by certified mail, return
receipt requested, postage prepaid, or sent by facsimile or prepaid overnight
courier to the parties at the addresses set forth below their names on the
signature pages of this Agreement (or at such other addresses as shall be
specified by the parties by like notice). Such notices, demands, claims and
other communications shall be deemed given when actually received or, (a) in the
case of delivery by overnight service with guaranteed next day delivery, the
next day or the day designated for delivery, (b) in the case of certified U.S.
mail, five days after deposit in the U.S. mail, or (c) in the case of facsimile,
the date upon which the transmitting party received confirmation of receipt by
facsimile, telephone or otherwise.
10.2
Entire
Agreement. This
Agreement contains every obligation and understanding between the parties
relating to the subject matter hereof and merges all prior discussions,
negotiations and agreements, if any, between them, and none of the parties shall
be bound by any conditions, definitions, understandings, warranties or
representations other than as expressly provided or referred to
herein.
10.3
Binding
Effect. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors, heirs, personal representatives, legal
representatives, and permitted assigns.
10.4
Assignment. This
Agreement may not be assigned by any party without the written consent of the
other party.
10.5
Waiver
and Amendment. Any
representation, warranty, covenant, term or condition of this Agreement which
may legally be waived, may be waived, or the time of performance thereof
extended, at any time by the party hereto entitled to the benefit thereof, and
any term, condition or covenant hereof (including, without limitation, the
period during which any condition is to be satisfied or any obligation
performed) may be amended by the parties hereto at
11
any time.
Any such waiver, extension or amendment shall be evidenced by an instrument in
writing executed on behalf of the appropriate party by its Chairman, President
or any Vice President or other person, who has been authorized by its Board of
Directors to execute waivers, extensions or amendments on its behalf. No waiver
by any party hereto, whether express or implied, of its rights under any
provision of this Agreement shall constitute a waiver of such party’s rights
under such provisions at any other time or a waiver of such party’s rights under
any other provision of this Agreement. No failure by any party hereto to take
any action against any breach of this Agreement or default by another party
shall constitute a waiver of the former party’s right to enforce any provision
of this Agreement or to take action against such breach or default or any
subsequent breach or default by such other party.
10.6
Severability. In the
event that any one or more of the provisions contained in this Agreement shall
be declared invalid, void or unenforceable, the remainder of the provisions of
this Agreement shall remain in full force and effect, and such invalid, void or
unenforceable provision shall be interpreted as closely as possible to the
manner in which it was written.
10.7
Expenses. Each
party agrees to pay, without right of reimbursement from the other party, the
costs incurred by it incident to the performance of its obligations under this
Agreement and the consummation of the transactions contemplated hereby,
including, without limitation, costs incident to the preparation of this
Agreement, and the fees and disbursements of counsel, accountants and
consultants employed by such party in connection herewith.
10.8
Headings. The
section and other headings contained in this Agreement are for reference
purposes only and shall not affect the meaning or interpretation of any
provisions of this Agreement.
10.9
Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same
instrument.
10.10
Time
of Essence.
Wherever time is specified for the doing or performance of any act hereunder,
time shall be considered of the essence.
10.11
Litigation;
Prevailing Party. If,
notwithstanding the provisions of Section 6.3 regarding arbitration hereunder,
any litigation is instituted with regard to this Agreement, the prevailing party
shall be entitled to receive from the non-prevailing party and the
non-prevailing party shall pay all reasonable fees and expenses of counsel for
the prevailing party.
10.12
Injunctive
Relief. It is
possible that remedies at law may be inadequate and, therefore, the parties
hereto shall be entitled to equitable relief including, without limitation,
injunctive relief, specific performance or other equitable remedies in addition
to all other remedies provided hereunder or available to the parties hereto at
law or in equity.
10.13
Remedies
Cumulative. No
remedy made available by any of the provisions of this Agreement is intended to
be exclusive of any other remedy, and each and every remedy shall be cumulative
and shall be in addition to every other remedy given hereunder or now or
hereafter existing at law or in equity.
12
10.14
Governing
Law. This
Agreement has been entered into and shall be construed and enforced in
accordance with the laws of the State of Florida without reference to the choice
of law principles thereof.
10.15
Jurisdiction
and Venue. If,
notwithstanding the provisions of Section 6.3 regarding arbitration hereunder,
any litigation is instituted with regard to this Agreement, this Agreement shall
be subject to the exclusive jurisdiction of the courts of Palm Beach County,
Florida. The parties to this Agreement agree that any breach of any term or
condition of this Agreement shall be deemed to be a breach occurring in the
State of Florida by virtue of a failure to perform an act required to be
performed in the State of Florida and irrevocably and expressly agree to submit
to the jurisdiction of the courts of the State of Florida for the purpose of
resolving any disputes among the parties relating to this Agreement or the
transactions contemplated hereby. The parties irrevocably waive, to the fullest
extent permitted by law, any objection which they may now or hereafter have to
the laying of venue of any suit, action or proceeding arising out of or relating
to this Agreement, or any judgment entered by any court in respect hereof
brought in Palm Beach County, Florida, and further irrevocably waive any claim
that any suit, action or proceeding brought in Palm Beach County, Florida has
been brought in an inconvenient forum.
10.16
Participation
of Parties. The
parties hereto acknowledge that this Agreement and all matters contemplated
herein, have been negotiated among all parties hereto and their respective legal
counsel and that all such parties have participated in the drafting and
preparation of this Agreement from the commencement of negotiations at all times
through the execution hereof. 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.
10.17
Preliminary
Statements. The
parties hereto acknowledge that the preliminary statements contained herein
shall be deemed part of this Agreement and shall be binding upon the
parties.
[signatures
on following page]
13
IN
WITNESS WHEREOF, the parties hereto have each executed and delivered this
Agreement as of the day and year first above written.
APPLIED
DIGITAL SOLUTIONS, INC.
By:/s/
Xxxxx X. Xxxxxxxxx
Name:
Xxxxx X. Xxxxxxxxx
Title:
Chief Executive Officer
Address
for Notice:
0000
Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn:
Xxxxx X. Xxxxxxxxx, CEO
Tel:
(000) 000-0000
Fax:
(000) 000-0000
With a
copy to: Holland
& Knight LLP and
Applied
Digital Solutions, Inc.
000 Xxxxxxxx Xxxxxx 0000
Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000 Xxxxx
000
Xxxxx, XX 00000 Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxxxx, Esq. Attn:
Xxxxxxx Xxxxxxx, Esq.
Tel: (000)000-0000 Tel:
(000) 000-0000
Fax: (000)000-0000 Fax:
(000) 000-0000
DIGITAL
ANGEL CORPORATION
By:
/s/
Xxxxx X. XxXxxxx
Name:
Xxxxx X. XxXxxxx
Title:
Chief Executive Officer
Address
for Notice:
000
Xxxxxxxx Xxxxxxxxxxx
Xxxxx Xx.
Xxxx, XX 00000
Attn:
Xxxxx X. XxXxxxx
Tel:
(000) 000-0000
Fax:
(000) 000-0000
With a
copy to: Winthrop
& Weinstine
Suite
3500
000
Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx,
XX 00000
Attn:
Xxxxxx Xxxxxx, Esq.
Tel:
(000) 000-0000
Fax:
(000) 000-0000
14
Schedules
(as
necessary)
