RECAPITALIZATION AGREEMENT
This agreement (the Agreement) is made by and between
- Datascension, Inc. (Datascension), a Nevada corporation, and
- TBeck Capital, Inc. (TBeck), a Florida corporation, effective this
24th day of April, 2006.
The parties to this Agreement as specified above shall be referred to below
collectively as the Parties or individually as the Party.
Recitals
Whereas, Datascension desires to obtain additional funds to continue and expand
its business operations, as well as take all necessary steps to bring the
undervalued nature of Datascension's stock price to the market's attention;
Whereas, TBeck desires to acquire an investment in Datascension;
Now therefore, the foregoing Parties enter into this Recapitalization
Agreement.
Agreement
I. REDEMPTION OF EXISTING DEBT
1. TBeck agrees to advance Datascension funds in the approximate amount
of $2,800,000 (Two Million Eight Hundred Thousand Dollars) to redeem the
outstanding convertible notes as listed on Schedule A (the Redemption).
2. TBeck shall advance the funds for the Redemption by May 10, 2006.
II. STOCK GRANT TO tBECK
3. In exchange for the funding of the Redemption, Datascension will
issue to TBeck:
- Two shares of Datascension common stock for every dollar
advanced by TBeck pursuant to Paragraph 1. The common stock granted
will be restricted for one year.
- 1,000,000 (One Million) shares of freely tradable Datascension
common stock.
4. All stock certificates shall be issued to TBeck simultaneously with
the Redemption.
III. Line of Credit
5. TBeck shall fund a $1,500,000 (One Million Five Hundred Thousand
Dollars) senior line of credit (the Line of Credit), which will be drawn down
in bi-weekly increments between now and December 31, 2006.
6. The unpaid principal of the Line of Credit will bear simple interest
at the rate of 7.5% (Seven and One-Half Percent) per annum. Both principal and
interest will be due fifteen months from the first draw down.
7. For each dollar drawn from the line of credit, Datascension will
issue two shares of restricted Datascension common stock to TBeck. Such
issuance of stock shall be made within 10 days from the end of the month in
which the draw was made.
8. At the option of Datascension, however, the accrued interest may be
paid in Datascension's restricted common stock at a value of fifty cents ($.50)
per share.
9. This line of credit shall be secured by a senior lien on
Datascenion's equipment and accounts receivable.
10. TBeck may refinance the line of credit with a commercial lender who
agrees to advance working capital to Datascension on terms and conditions
agreed to in the future.
` 11. Intentionally omitted.
IV. Stock Issues.
11. TBeck will raise $5,000,000 (Five Million Dollars) from common stock
offerings for Datascension from September 1, 2006 through December 31, 2006 on
terms and conditions acceptable to Datascension.
12. The first proceeds will be applied to the Line of Credit. The
remainder will be available as working capital for Datascension.
V. REPRESENTATIONS AND WARRANTIES OF DATASCENSION
Except as otherwise provided herein, Datascension hereby represents and
warrants to TBeck as follows:
13. Existence. Datascension is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Nevada.
Datascension has full corporate power and authority to execute and deliver this
Agreement and to perform its obligations hereunder and to consummate the issue
of the Convertible Note and the freely tradable shares contemplated hereby.
14. Authority. The execution and delivery by Datascension of this
Agreement, and the performance by Datascension of its obligations hereunder,
have been duly and validly authorized by its board of directors, no other
corporate action on the part of Datascension, its stockholders or any other
person being necessary. This Agreement has been duly and validly executed and
delivered by Datascension and constitutes a legal, valid and binding obligation
of Datascension enforceable against Datascension in accordance with its terms.
15. Absence of Conflicting Agreements. Neither the execution, delivery,
nor performance of this Agreement by Datascension, nor the consummation of the
transactions contemplated hereby does or will, after the giving of notice, or
the lapse of time or both, or otherwise violate, terminate, nor abridge any
rights in any agreement to which Datascension or its shareholders are a party.
16. Legal Proceedings. There are no actions or proceedings pending or,
to the knowledge of Datascension, threatened against, relating to or affecting
Datascension or any of its assets and properties which could reasonably be
expected to result in the issuance of an order restraining, enjoining or
otherwise prohibiting or making illegal the consummation of the transactions
contemplated herein.
17. Consents; No Violation of Agreements. No consent of any person is
necessary for the consummation by Datascension of the transactions set forth
herein, including, without limitation, consents from governmental agencies,
whether federal, state or local
18. Brokers. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried out by Datascension directly
with TBeck without the intervention of any person on behalf of Datascension in
such manner as to give rise to any valid claim by any person against TBeck for
a finder's fee, brokerage commission or similar payment.
VI. REPRESENTATIONS AND WARRANTIES OF TBECK
Except as otherwise provided herein, TBeck hereby represents and
warrants to Datascension as follows:
19. Corporate Existence. TBeck is duly organized Florida Corporation,
validly existing and in good standing under the Laws of the State of Florida.
corporation that would be TBeck has full power and authority to execute and
deliver this Agreement, to perform its obligations hereunder and to consummate
the receipt of the Interests contemplated hereby.
20. Authority. The execution and delivery by TBeck of this Agreement,
and the performance by TBeck of its obligations hereunder, have been duly and
validly authorized by the board of directors of TBeck, no other action on the
part of TBeck being necessary. This Agreement has been duly and validly
executed and delivered by TBeck and constitutes a legal, valid and binding
obligation of TBeck enforceable against TBeck in accordance with its terms.
21. Legal Proceedings. There are no actions or proceedings pending or,
to the knowledge of TBeck, threatened against, relating to or affecting TBeck
or any of its assets and properties which could reasonably be expected to
result in the issuance of an Order restraining, enjoining or otherwise
prohibiting or making illegal the consummation of the receive of the
transactions contemplated herein.
22. Brokers. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried out by TBeck directly with
Datascension without the intervention of any person on behalf of TBeck in such
manner as to give rise to any valid claim by any person against Datascension or
any Subsidiary for a finder's fee, brokerage commission or similar payment.
VII Leak out Agreement
23. Datascension will cause the major shareholders to enter into a leak
out agreement reasonably acceptable to TBeck. The form of the leak out
agreement is attached as Exhibit "B" to this agreement.
VIII. Indemnities
24. Datascension hereby indemnifies and saves and holds harmless TBeck
from, against, for and in respect of any and all damages (including, without
limitation, amounts paid in settlement without the consent), losses,
obligations, liabilities, liens, deficiencies, costs and expenses, including,
without limitation, reasonable attorneys' fees and other costs and expenses
incident to any Proceeding (as defined below) suffered, sustained, incurred or
required to be paid by the TBeck by reason of Datascension's actions related to
arising form this Agreement.
25. TBeck hereby indemnifies and saves and holds harmless Datascension
from, against, for and in respect of any and all damages (including, without
limitation, amounts paid in settlement without the consent), losses,
obligations, liabilities, liens, deficiencies, costs and expenses, including,
without limitation, reasonable attorneys' fees and other costs and expenses
incident to any Proceeding (as defined below) suffered, sustained, incurred or
required to be paid by Datascension by reason of TBeck's actions related to
arising form this Agreement.
26. Such right shall include the right to be paid by Datascension
expenses incurred in defending any such Proceeding in advance of its final
disposition.
27. As used herein, the term Proceeding means any threatened, pending,
or completed action, suit, or proceeding, whether civil, criminal,
administrative, arbitrative, or investigative, any appeal in such an action,
suit, or proceeding, and any inquiry or investigation that could lead to such
an action, suit, or proceeding.
IX. General Provisions
28. Entire Agreement. This Agreement, including the Exhibits hereto
along with the contemplated Line of Credit, contains the entire understanding
of the Parties with respect to the subject matter herein and supersedes all
previous agreements, representations or warranties. This Agreement may not be
amended except in writing signed by both Parties.
29. Amendments. No erasure of or addition to any portion of this
Agreement except filling in of blank spaces and lines shall be binding upon the
parties unless it is in writing signed by duly authorized officers of both
parties.
30. Assignment. This Agreement may not be assigned, in whole or in part,
by either Party without the prior written consent of the other Party.
31. Severability. While it is the intention of the Parties that this
Agreement be read and construed as a whole, in the event any section or
paragraph hereof is declared illegal or unenforceable, such section or
paragraph is severable from the rest of the Agreement to the extent such
severance is consistent with the general undertaking of the Parties.
32. Further Assurances. At any time and from time to time, each party
hereto, without further consideration, shall cooperate, take such further
action and execute and deliver such further instruments and documents as may be
reasonably requested by the other party in order to carry out the provisions
and purposes of this Agreement.
33. Force majeure. Neither party shall be liable for any delay in
performance or non-performance in whole or in part to the extent caused by
circumstances beyond the reasonable control of the party affected, including,
without limitation, natural disaster, intervention by any governmental
authority, labor strikes or shortages or inability to secure transportation
services.
34. Notices. Any notice under this Agreement shall be made to the
addresses shown below (or at such other address as may be notified subsequently
by a Party) and marked "Important Legal Notice" on the outer envelope. Any
notices given under this Agreement shall be deemed received when delivered by
receipted mail or by receipted courier.
To TBeck:
TBeck Capital
c/o Xxxx Xxxxxxxxx, CPA
Attention: Xxxxx Xxxxx, Esq.
0000 Xxxxx Xxxx Xx
Xxxxxxxxx, XX 00000
To Datascension:
Datascension, Inc.
ATTN: Legal Counsel
000 X. Xxxxx Xxxxxxx Xxxx, Xxx. 000
Xxxx, XX 00000
35. Waiver. The failure of either Party to require performance of any
term or condition of this Agreement or the waiver by either Party of any breach
of this Agreement shall not prevent a subsequent enforcement of such term or
condition nor be deemed a waiver of any subsequent breach.
36. Law of Texas. This Agreement shall be governed and interpreted in
accordance with the laws of the State of Texas and the parties agree to submit
all disputes that arise under or relate to this Agreement to the federal and
state courts located in Dallas, Texas.
37. Service. Each Party agrees to accept service of process by any two
of the following: certified mail, return receipt requested, receipted air
courier service and fax transmission, and that such service shall be
sufficient. Each Party accepts personal jurisdiction of the federal or state
courts within the State of Texas.
38. Headings. The headings in this Agreement are inserted for
convenience of reference only and are not intended to be used as an aid to the
interpretation of the provisions hereof.
39. Counterparts. This Agreement may be executed in counterparts, each
of which, when executed, shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument
40. No Agency. Each Party agrees that it is not and shall not represent
itself to be an agent of the other Party for any purpose and shall not incur
any obligations nor make any promise or representation on behalf of the same,
and further agrees to ensure that its agents do not incur any such obligations
or make any such promises or representations.
41. Inurnment. This Agreement shall be binding upon and shall inure to
the benefit of the respective parties hereto and their successors and permitted
assigns.
DATASCENSION, INC.
By: /s/Xxxxx Xxxxxx dated April 24, 2006
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Name: Xxxxx Xxxxxx
Title: President/CEO
TBECK CAPITAL, INC.
By: /s/Xxxxx Xxxxx dated April 24, 2006
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Name: Xxxxx Xxxxx
Title:
