DEBT RESTRUCTURE AND EQUITY REORGANIZATION
COMPREHENSIVE AGREEMENT
BY AND AMONG
GREEN SHIELD MANAGEMENT CO.,
ES HORIZONS, INC.,
AND
NEWMARKET TECHNOLOGY, INC.
This Comprehensive Debt Restructure and Equity Reorganization Agreement
("Agreement") is entered into by and among NewMarket Technology, Inc., a Nevada
Corporation ("NMKT"), Green Shield Management Co. ("GS") and ES Horizons, Inc.,
a Nevada corporation ("ES") as of the last date written below ("Effective
Date"). NMKT, GS and ES may each be referred to herein as a "Party" and may
collectively be referred to herein as the "Parties."
WITNESSETH:
WHEREAS: GS is the holder (or manager of holdings) of $1,250,000 in notes
participation (the "Note Participation") with Valens Offshore and
Valens SPV and,
WHEREAS: NMKT's Articles of Incorporation authorize 10,000,000 shares of
preferred stock ("Preferred Stock"), of which 2,552 are issued
and outstanding on the date hereof and
WHEREAS: GS is the holder (or manager of holdings) of all outstanding
shares of the Series F, H, and I of the Preferred Stock of NMKT,
including the respective quantities of each series as shown on
Exhibit A hereto (collectively the "GS Preferred Shares") and,
WHEREAS: NMKT has expressed an interest in restructuring the debt and
equity held or managed by GS and,
WHEREAS: The Parties now desire to restructure the debt and reorganize the
equity of the Preferred Stock of NMKT held, managed or controlled
by GS.
NOW THEREFORE: The Parties, 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. GS hereby agrees to submit for cancellation, the GS Preferred Shares, in
exchange for 1,601 shares of Series J Preferred Convertible,
Dividend-bearing (Cumulative) Stock with the Designations of Rights and
Privileges as contained on Exhibit B hereto (the "Series J Shares"),
effective upon issuance of the Series J of Preferred Stock, required
hereby.
2. GS hereby elects and agrees to convert $750,000 of the Valens Note
Participation into 750 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 Series J Shares.
3. GS enters into this Agreement, and agrees to participate in the
restructuring and complete the undertakings described herein, subject to
the requirement, by GS, that NMKT issue concurrently herewith a series of
super majority voting Preferred Stock (Series K), which must be and remain
outstanding to current management of NMKT for so long as GS holds Series J
Shares. Concurrent herewith, GS has agreed to sell $500,000 of the Note
Participation to ES, an entity controlled by management of NMKT, for
valuable consideration, effective upon execution hereof by all Parties. ES
hereby elects and agrees to convert the $500,000 Note Participation
purchased hereby from GS into 5,000 shares of Series K Preferred Stock with
the Designation of Rights and Privileges as contained on Exhibit C hereto
effective upon issuance of the Series K Preferred Stock required hereby.
NMKT agrees that it will not issue any Series J Preferred Stock to any
person or entity other than to or at the direction of GS without the prior
written consent of GS.
4. GS and ES 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.
5. 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.
6. 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.
7. Binding Effect. This Agreement shall inure to the benefit of and shall be
binding on the Parties and their respective successors and assigns.
8. 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 ES: ES Horizons, Inc.
00000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Fax no. (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.
9. 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.
10. 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.
11. 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.
12. 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.
13. Integration. This Agreement represents the entire agreement among the
Parties, it supercedes all prior negotiations and agreements, and no
statements, promises, or inducements made by any Party hereto not contained
in this instrument shall be valid or binding.
14. 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.
15. 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.
16. Governing Law; Jurisdiction and Venue. This Agreement shall be construed
and enforced in accordance with the laws of the State of North Carolina
without reference to its choice of law or conflict of law provisions. The
Parties agree to submit to the personal jurisdiction of the state courts of
the State of North Carolina sitting in Raleigh, Wake County, North
Carolina, and agree 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.
17. 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
transmitted 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.
ES HORIZONS, INC.
By: /s/ Xxxxxx Xxxxxx
------------------------------------------------
Printed Name: Xxxxxx Xxxxxx
------------------------------------------------
Title: President
------------------------------------------------
Date: 4/28/09
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NEWMARKET TECHNOLOGY, INC.
By: /s/ Xxxxxx Xxxxx
------------------------------------------------
Printed Name: Xxxxxx Xxxxx
------------------------------------------------
Title: Chief Financial Officer
------------------------------------------------
Date: 4/28/09
------------------------------------------------
GREEN SHIELD MANAGEMENT CO.
By: /s/ XX Xxxx
------------------------------------------------
Printed Name: X.X. Xxxx
------------------------------------------------
Title: Director
------------------------------------------------
Date: 4/28/09
------------------------------------------------
EXHIBIT A
Preferred Securities Owned / Controlled / Managed by Green Shield Management
Company
Series F Preferred Stock - 225 Shares (stated value $1,000 per share)
Series H Preferred Stock - 541 Shares (stated value $1,000 per share)
Series I Preferred Stock - 835 Shares (stated value $1,000 per share)
