EXHIBIT 10.1
DEBT RESTRUCTURE AGREEMENT
BY AND AMONG
GREEN SHIELD MANAGEMENT CO.,
TIMELESS INVESTMENTS LTD.,
AND
NEWMARKET TECHNOLOGY, INC.
This Debt Restructure Agreement ("Agreement") is entered into by and among
NewMarket Technology, Inc., a Nevada Corporation ("NMKT"), Green Shield
Management Co. ("GS") and Timeless Investments, Ltd. ("TI"), as of __ October,
2009 (the "Effective Date"). NMKT, GS and TI may each be referred to herein as a
"Party" and may collectively be referred to herein as the "Parties."
WITNESSETH:
WHEREAS: TI is the holder of $1,500,000 in notes participation ("Note
Participation") purchased from Valens Offshore and Valens SPV on
or about October 9, 2009; and,
WHEREAS: GS is the holder (or manager of holdings) of $500,000 in Note
Participation purchased from Valens Offshore and Valens SPV and
assigned to GS as of October 9, 2009; and,
WHEREAS: NMKT's Articles of Incorporation authorize 10,000,000 shares of
preferred stock ("Preferred Stock"), of which 4,577 are issued
and outstanding on the date hereof, including a series of
convertible preferred stock known as the Series J Convertible
Preferred Stock ("Series J Shares") and
WHEREAS: NMKT has expressed an interest in converting the debt held or
managed by GS and by TI into equity of NMKT, and GS and TI have
agreed to the same; and,
WHEREAS: The Parties now desire to exchange and convert the debt
represented by the above referenced Note Participation of NMKT
held, managed or controlled by GS and by TI, respectively, into
Series J Shares as stated hereinafter.
NOW THEREFORE: In consideration of the foregoing premises and the following
promises contained herein and for other good and valuable consideration
exchanged among the Parties, the receipt and sufficiency of which are hereby
acknowledged by each, the Parties covenant and agree as follows:
1. TI hereby elects and agrees to exchange and convert all of its Note
Participation into 1,500 Series J Shares, which conversion shall be
effective upon issuance of the Series J Shares required hereby. All
interest, fees and penalties due under the Note Participation shall be
canceled, forgiven or waived, as applicable, upon TI's receipt of the 1,500
Series J Shares.
2. GS hereby elects and agrees to convert all of its Note Participation into
500 Series J Shares, which conversion shall be effective upon issuance of
the Series J Shares required hereby. All interest, fees and penalties due
under the Note Participation shall be canceled, forgiven or waived, as
applicable, upon GS's receipt of the said 500 Series J Shares.
3. GS and TI hereby agree to waive and forgive any unpaid interest, fees or
penalties due under the Note Participation from the beginning of time up
until execution hereof. TI shall cancel all security interests in the Note
Participation and release all collateral of any kind that secures the Note
Participation immediately upon receipt of its Series J Shares. Legal
counsel for NWMT will prepare and deliver to TI such termination
statements, releases and/or cancellation documents as may be necessary to
release all the said collateral, which TI will immediately (but in any
event within three (3) business days) execute and return to NWMT per its
instructions.
4. Time is of the Essence. The times for performance of the various
obligations in this Agreement are essential due to the obligations and
expenditures of the Parties. If a specific time is not specified,
performance shall be prompt and with due regard to the conditions of
performance of other parties in reliance thereon.
5. Cooperation and Further Assurances. Approvals required by any Party shall
not be unreasonably withheld or delayed. The Parties each agree to execute
and deliver such documents and to perform such other acts, promptly upon
request by another Party, which are, in the requesting Party's reasonable
judgment, necessary or appropriate to effectuate the purposes and intent of
this Agreement.
6. Binding Effect. This Agreement shall inure to the benefit of and shall be
binding on the Parties and their respective successors and assigns.
7. Notices. All notices, certificates, requests, or other communications
required hereunder shall be sufficient only if given in writing and shall
be deemed to have been duly given when delivered in person, sent by a
nationally recognized courier which can track and verify delivery, or three
(3) days after sent by registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:
To GS: Green Shield Management Co.
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxxx 00000
Fax no. (000) 000-0000
To NMKT: NewMarket Technology, Inc.
00000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Fax no. (000) 000-0000
To TI: Timeless Investments, Ltd.
Hibernian House
Leeward Highway
Providenciales
Turks & Caicos Islands, BWI
Attn: Xxxx X. X'Xxxxx
Tel. 0.000.000.0000
Fax no. 0.000.000.0000
Either Party hereunder may, by notice given hereunder, designate any
further or different addresses to which subsequent notices, certificates,
requests, or other communications shall be sent.
8. Authority and Capacity to Execute. Each person signing this Agreement
represents and warrants that he or she has complete authority and legal
capacity to execute and enter into this Agreement on behalf of the Party
for which he or she is signing, and agrees to defend, indemnify and hold
harmless all other Parties if that authority or capacity is challenged.
9. Knowing and Voluntary Agreement. The Parties each represent and warrant
that they have read this Agreement and they understand it. The Parties each
acknowledge and agree that they had a full and fair opportunity to consult
with legal counsel of their own choosing in the negotiation, drafting and
execution of this Agreement. In entering into this Agreement, each Party
understands and agrees that it does so of its own free will, relying wholly
upon its own individual judgment and the advice of its own legal counsel,
and that it has not been influenced to any extent whatsoever by any
representations or statements made by the Parties, persons, firms, or
corporations which are hereby released, or by any person or persons
representing, affiliated with or employed by any Party to this Agreement.
10. No Drafting Party. No Party shall be deemed to be the "drafting party" of
this Agreement and, consequently, this Agreement shall be construed as a
whole, according to its fair meaning and intent, and not strictly for the
benefit of or detriment to one Party or the other.
11. Interpretation. The captions and headings of the various sections or
provisions in this Agreement are solely for the convenience of the Parties
and for reference, and shall not be construed in any way to interpret,
define or limit the content of any provision or section hereof. In
interpreting this Agreement, when applicable the singular form of any word
shall mean or apply to the plural and the feminine form shall mean to apply
to the masculine, and visa versa.
12. Integration. This Agreement represents the entire a greement among the
Parties, it supercedes all prior negotiations and agreements, and no state-
ments, promises, or inducements made by any Party hereto not contained in
this instrument shall be valid or binding.
13. Amendments and Modifications. No change, amendment, or modifications to or
extension of or waiver of any provisions of or consent provided under this
Agreement shall be valid unless such change, amendment, modification,
extension, consent, or waiver is in writing and signed by all the Parties
to this Agreement, or, in the case of consent or waiver, by the Party
granting the same.
14. Severability. In case any section or provision of this Agreement, or in
case any covenant, stipulation, obligation, agreement, act or action, or
part thereof, made, assumed, entered into, or taken under this Agreement,
or any application thereof, is, for any reason, held to be illegal or
invalid, or is at any time inoperable by reason of any law, or actions
thereunder, such illegality or invalidity or inoperability shall not affect
the remainder thereof or any covenant, stipulation, obligation, agreement,
act or action, or part thereof, made, assumed, entered into or taken under
this Agreement, which shall, at the time, be construed and enforced as if
such legal or invalid or inoperable portion were not contained therein.
15. Governing Law; Jurisdiction and Venue. This Agreement shall be construed
and enforced in accordance with the laws of the State of Nevada without
reference to its choice of law or conflict of law provisions. Any
litigation instituted by a Party against another Party shall be filed and
prosecuted only in the jurisdiction of the non-filing Party or Parties (and
in the case of GS as a non-filing Party to litigation, only in Raleigh,
North Carolina USA and no other place), and each Party agrees that such
courts are the required venue for the litigation of any dispute that may
arise or result from this Agreement, unless all Parties agree otherwise in
writing in a specific instance.
16. Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original, and all of which taken together shall
constitute one and the same instrument. Facsimile or electronically trans-
mitted signatures shall be deemed to be effective as originals.
IN WITNESS WHEREOF: The Parties have executed and entered into this Agreement as
of the last date written below.
TIMELESS INVESTMENTS, LTD.
By: _____________________________________________
Printed Name: _____________________________________________
Title: _____________________________________________
Date: _____________________________________________
NEWMARKET TECHNOLOGY, INC.
By: _____________________________________________
Printed Name: _____________________________________________
Title: _____________________________________________
Date: _____________________________________________
GREEN SHIELD MANAGEMENT CO.
By: _____________________________________________
Printed Name: _____________________________________________
Title: _____________________________________________
Date: _____________________________________________
