EXHIBIT 10.5
NOTE PURCHASE AGREEMENT
THIS NOTE PURCHASE AGREEMENT (the "Agreement") effective the 1st day of
September,1999, by and between Phileo Management Company, Inc., a corporation
organized under the laws of the United States, state of Nevada ("Purchaser"),
and NuOasis International Inc., a corporation organized under the laws of the
Commonwealth of the Bahamas ("Seller").
WHEREAS, Seller owns that certain Secured Convertible Promissory Note
issued by Dega Technology, Inc., a Colorado corporation ("Dega"), in the
aggregate principal amount of Five Hundred Thousand Dollars ($500,000), a copy
of which is attached hereto as Exhibit "A" (the "Note"); and
WHEREAS, Purchaser And Seller wish to exchange the Note for cash and
securities owned by Purchaser.
NOW, THEREFORE, IN CONSIDERATION of the mutual promises contained herein,
the benefits to be derived by each party hereunder and other good and valuable
consideration, the receipt and sufficiency of which are hereby expressly
acknowledged, Purchaser and Seller agree as follows:
1. Purchase and Sale of Note
On the basis of the representations and warranties herein contained,
subject to the terms and conditions set forth herein, Seller agrees to sell,
assign and transfer the Note for Four Hundred Seventy-two Thousand Dollars
($472,000), consisting of $250,000 in cash and the cancellation and return of
the $222,000 obligation of Seller due to NuVen Advisors, Inc.(the "NuOasis
Debt")which Purchaser owns or has the rights to acquire. The cash consideration
and the NuVen Debt are collectively referred to as the "Consideration".
2. Closing
The purchase and sale contemplated by this Agreement shall be effected by
Purchaser following Purchaser's examination of the Note and due diligence review
of Dega (the "Closing"), but in no event later than September 1, 1999 (the
"Closing Date"). At the Closing, Purchaser shall deliver the Consideration to
Seller.
2.1 Representations and Warranties of Seller
Seller hereby represents and warrants to Purchaser that:
A. Organization. Seller is a corporation validly existing and in good
standing under the laws of the Commonwealth of the Bahamas with the
power and authority to carry on its business as now being conducted.
The execution and delivery of this Agreement and the consummation of
the transaction contemplated in this Agreement have been, or will be
prior to Closing, duly authorized by all requisite corporate action
on the part of Seller. This Agreement has been duly executed and
delivered by Seller and constitutes a binding, and enforceable
obligation of Seller;
B. Third Party Consent No authorization, consent, or approval of, or
registration or filing with, any governmental authority or any other
person is required to be obtained or made by Seller in connection
with the execution, delivery, or performance of this Agreement, or
if required, Seller has or will obtain same prior to Closing; and,
C. Litigation. Seller is not a defendant or a plaintiff against whom a
counterclaim has been made or reduced to judgement, in any
litigation or proceedings before any United States, local, state or
foreign government, or any department, board, body or agency
thereof, which could result in a claim against the Note; and,
D. Status of Note. To the best of Seller's knowledge, the Note is
validly issued by Dega and there is no claim by Dega which would
serve to restrict the sale, assignment, and transfer of the Note as
contemplated herein. Further, Seller has not created any option,
security interest or encumbrance involving the Note that would give
rise to any claims by third parties or otherwise conflict with or
preclude the purchase and sale as contemplated herein; and,
E. Authority. This Agreement has been duly executed by Seller, and the
execution and performance of this Agreement will not violate, or
result in a breach of, or constitute a default in any agreement,
instrument, judgement, order or decree to which Seller is a party or
to which Seller is subject.
2.2 Representations and Warranties of Purchaser
Purchaser hereby represents and warrants to Seller that:
A. Organization. Purchaser is a corporation validly existing and in
good standing under the laws of the State of Nevada, with the power
and authority to carry on its business as now being conducted. The
execution and delivery of this Agreement and the consummation of the
transaction contemplated in this Agreement have been, or will be
prior to Closing, duly authorized by all requisite action on the
part of Purchaser. This Agreement has been duly executed and
delivered by Purchaser and constitutes a binding, and enforceable
obligation of Purchaser; And,
B. Third Party Consent No authorization, consent, or approval of, or
registration or filing with, any governmental authority or any other
person is required to be obtained or made by Purchaser in connection
with the execution, delivery, or performance of this Agreement, or
if required, Purchaser has or will obtain same prior to Closing;
And,
C. Authority. This Agreement has been duly executed by Purchaser, and
the execution and performance of this Agreement will not violate, or
result in a breach of, or constitute a default in any agreement,
instrument, judgement, order or decree to which Purchaser is a party
or to which Purchaser is subject.
3. Conditions Precedent to Obligations of Purchaser
All obligations of Purchaser under this Agreement are subject to the
fulfillment, prior to or as of the Closing Date, of each of the following
conditions:
A. Transfer and Delivery of the Note. Seller shall have taken all
action necessary to deliver the Note to Purchaser free and clear of
any and all encumbrances or claims of any kind.
B. Acceptance of Documents. All instruments and documents delivered to
Purchaser by Seller pursuant to the provisions of this Agreement
shall be satisfactory to Purchaser and its legal counsel.
4. Private Transaction
A. Private Offering. Seller and Purchaser mutually acknowledge and
agree that the purchase and sale of the Note contemplated herein
constitutes a private, arms-length transaction between the parties
without the use or reliance upon a distribution or securities
underwriter.
B. Purchase for Own Account. Neither Seller nor Purchaser are
underwriters of, or dealers in, securities, and neither party is
acting as such or participating, pursuant to a contractual
agreement, in the distribution, purchase or redistribution of the
Note.
C. Access to Information. Seller, Purchaser and their respective
advisors have been afforded the opportunity to discuss the
transaction with legal and accounting professionals, and to examine
and evaluate the financial impact of the purchase and sale
contemplated herein.
5. Termination
This Agreement may be terminated at anytime prior to the date of Closing
by either party if (a) there shall be any actual or threatened action or
proceeding by or before any court or any other governmental body which
shall seek to restrain, prohibit, or invalidate the transaction
contemplated by this Agreement, and which, in the judgment of such party
giving notice to terminate and based upon the advice of legal counsel,
makes it inadvisable to proceed with the transaction contemplated by this
Agreement, or (b) if the transaction contemplated herein has not closed by
November 30, 1999 for reasons outside the control of the parties.
6. Miscellaneous
A. Authority. The officers of Purchaser and Seller executing this
Agreement are duly authorized to do so and each party has taken all
action required by law or otherwise to properly and legally execute
this Agreement.
B. Notices. Any notice under this Agreement shall be deemed to have
been sufficiently given if sent by registered or certified mail,
postage prepaid, addressed as follows:
To Seller: NuOasis International, Inc.
00 Xxxxxxxxx Xxxxxx, Xxx X-0000
Nassau, Bahamas
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: NuOasis Resorts, Inc.
0000 XxxXxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To Purchaser: Phileo Management Company, Inc.
000-000 Xxxxxxx Xxxxxx
Xxxxxxxxx, X.X., Xxxxxx X0X 0X0
Telephone: (000) 000-0000
Telefax: (000) 000-0000
With a copy to: Xxxxxx & Weed
0000 XxxXxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to any other address which may hereafter be designated by either party
by notice given in such manner. All notices shall be deemed to have been
given as of the date of receipt.
C. Entire Agreement. This Agreement sets forth the entire understanding
between the parties hereto and no other prior written or oral
statement or agreement shall be recognized or enforced.
D. Severability. If a court of competent jurisdiction determines that
any clause or provision of this Agreement is invalid, illegal or
unenforceable, the other clauses and provisions of the Agreement
shall remain in full force and effect and the clauses and provision
which are determined to be void, illegal or unenforceable shall be
limited so that they shall remain in effect to the extent
permissible by law.
E. Assignment. None of the parties hereto may assign this Agreement
without the express written consent of the other parties and any
approved assignment shall be binding on and inure to the benefit of
such successor or, in the event of death or incapacity, on
assignor's heirs, executors, administrators and successors.
F. Applicable Law. Not withstanding that this Agreement has been
negotiated and is being contracted for outside the United States, it
shall be governed by the applicable laws of the United States, State
of Nevada, notwithstanding any conflict-of-law provision to the
contrary.
G. Attorney's Fees. If any legal action or other preceding
(non-exclusively including arbitration) is brought for the
enforcement of or to declare any right or obligation under this
Agreement or as a result of a breach, default or misrepresentation
in connection with any of the provisions of this Agreement, or
otherwise because of a dispute among the parties hereto, the
prevailing party will be entitled to recover actual attorney's fees
(including for appeals and collection) and other expenses incurred
in such action or proceeding, in addition to any other relief to
which such party may be entitled.
H. No Third Party Beneficiary. Nothing in this Agreement, expressed or
implied, is intended to confer upon any person, other than the
parties hereto and their successors, any rights or remedies under or
by reason of this Agreement, unless this Agreement specifically
states such intent.
I. Counterparts. It is understood and agreed that this Agreement may be
executed in any number of identical counterparts, each of which may
be deemed an original for all purposes.
J. Further Assurances. At any time, and from time to time after the
Closing, each party hereto will execute such additional instruments
and take such action as may be reasonably requested by the other
party to confirm transfer and perfect title to the Note and the
NuOasis Debt, or otherwise to carry out the intent and purposes of
this Agreement.
K. Broker's or Finder's Fee; Expenses. Seller an Purchaser each warrant
that they have not incurred any liability, contingent or otherwise,
for brokers' or finders' fees or commissions relating to this
Agreement for which the other party shall have responsibility.
Except as otherwise provided herein, all fees, costs and expenses
incurred by either party relating to this Agreement shall be paid by
the party incurring same.
L. Amendment or Waiver. Every right and remedy provided herein shall be
cumulative with every other right and remedy, whether conferred
herein, at law, or in equity, and may be enforced concurrently
herewith, and no waiver by any party of the performance of any
obligation by the other shall be construed as a waiver of the same
or any other default then, theretofore, or thereafter occurring or
existing. At any time prior to Closing, this Agreement may be
amended by a writing signed by all parties hereto.
M. Headings. The section and subsection headings in this Agreement are
inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
N. Facsimile. A facsimile, telecopy or other reproduction of this
instrument may be executed by one or more parties hereto and such
executed copy may be delivered by facsimile or similar instantaneous
electronic transmission device pursuant to which the signature of or
on behalf of such party can be seen, and such execution and delivery
shall be considered valid, binding and effective for all purposes.
At the request of any party hereto, all parties agree to execute an
original of this instrument as well as any facsimile, telecopy or
other reproduction hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the day and year first above written.
"Purchaser"
Phileo Management Company, Inc.
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: President
"Seller"
NuOasis International, Inc.
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: President
