Exhibit (i)
AGREEMENT AND PLAN OF MERGER
DATED AS OF FEBRUARY 1, 2002
AMONG
DAKOTA IMAGING, INC.
AND
DAKOTA SUBSIDIARY CORP.
AND
VOYAGER VENTURES, INC.
TABLE OF CONTENTS
ARTICLE 1. The Merger 1
Section 1.1. The Merger 1
Section 1.2. Effective Time 1
Section 1.3. Closing of the Merger 1
Section 1.4. Effects of the Merger 2
Section 1.5. Board of Directors and Officers 2
Section 1.6. Conversion of Shares 2
Section 1.7. Exchange of Certificates 2
Section 1.8. Stock Options 3
Section 1.9. Taking of Necessary Action; Further Action 3
ARTICLE 2. Representations and Warranties of Dakota 3
Section 2.1. Organization and Qualification 4
Section 2.2. Capitalization of Dakota 4
Section 2.3. Authority Relative to this Agreement. 4
Section 2.4. SEC Reports; Financial Statements 5
Section 2.5. Information Supplied 5
Section 2.6. Consents and Approvals; No Violations 5
Section 2.7. No Default 6
Section 2.8. No Undisclosed Liabilities; Absence of Changes 6
Section 2.9. Litigation 6
Section 2.10. Compliance with Applicable Law 6
Section 2.11. Employee Benefit Plans; Labor Matters 7
Section 2.12. Environmental Laws and Regulations 7
Section 2.13. Tax Matters 8
Section 2.14. Title To Property 8
Section 2.15. Intellectual Property 8
Section 2.16. Insurance 9
Section 2.17. Vote Required 9
Section 2.18. Tax Treatment 9
Section 2.19. Affiliates 9
Section 2.20. Certain Business Practices 9
Section 2.21. Insider Interests 9
Section 2.22. Opinion of Financial Adviser 9
Section 2.23. Brokers 9
Section 2.24. Disclosure 9
Section 2.25. No Existing Discussion 9
Section 2.26. Material Contracts 10
ARTICLE 3. Representations and Warranties of Voyager. 10
Section 3.1. Organization and Qualification 10
Section 3.2. Capitalization of Voyager 11
Section 3.3. Authority Relative to this Agreement; Recommendation 11
Section 3.4. SEC Reports; Financial Statements 11
Section 3.5. Information Supplied 12
Section 3.6. Consents and Approvals; No Violations 12
Section 3.7. No Default 12
Section 3.8 No Undisclosed Liabilities; Absence of Changes 12
Section 3.9. Litigation 13
Section 3.10. Compliance with Applicable Law 13
Section 3.11. Employee Benefit Plans; Labor Matters 13
Section 3.12. Environmental Laws and Regulations 14
Section 3.13. Tax Matters 14
Section 3.14. Title to Property 15
Section 3.15. Intellectual Property 15
Section 3.16. Insurance 15
Section 3.17. Vote Required 15
Section 3.18. Tax Treatment 15
Section 3.19. Affiliates 15
Section 3.20. Certain Business Practices 15
Section 3.21. Insider Interests 15
Section 3.22. Opinion of Financial Adviser 16
Section 3.23. Brokers 16
Section 3.24. Disclosure 16
Section 3.25. No Existing Discussions 16
Section 3.26. Material Contracts 16
ARTICLE 4. Covenants 17
Section 4.1. Conduct of Business of Dakota 17
Section 4.2. Conduct of Business of Voyager 18
Section 4.3. Preparation of 8-K 19
Section 4.4. Other Potential Acquirers 19
Section 4.5. Meetings of Voyager and DSC Stockholders 20
Section 4.6. NASD OTC:BB Listing 20
Section 4.7. Access to Information 20
Section 4.8. Additional Agreements; Reasonable Efforts. 20
Section 4.9. Employee Benefits; Stock Option and Employee
Purchase Plans 20
Section 4.10. Public Announcements 20
Section 4.11. Indemnification 21
Section 4.12. Notification of Certain Matters 21
Section 4.13. Splits and Registration Statements 22
ARTICLE 5. Conditions to Consummation of the Merger 22
Section 5.1. Conditions to Each Party's Obligations
to Effect the Merger 22
Section 5.2. Conditions to the Obligations of Dakota 22
Section 5.3. Conditions to the Obligations of Voyager 22
ARTICLE 6. Termination; Amendment; Waiver 23
Section 6.1. Termination 23
Section 6.2. Effect of Termination 24
Section 6.3. Fees and Expenses 24
Section 6.4. Amendment 24
Section 6.5. Extension; Waiver 24
ARTICLE 7. Miscellaneous 24
Section 7.1. Nonsurvival of Representations and Warranties 24
Section 7.2. Entire Agreement; Assignment 24
Section 7.3. Validity 24
Section 7.4. Notices 24
Section 7.5. Governing Law 25
Section 7.6. Descriptive Headings 25
Section 7.7. Parties in Interest 25
Section 7.8. Certain Definitions 25
Section 7.9. Personal Liability 26
Section 7.10. Specific Performance 26
Section 7.11. Counterparts 26
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "Agreement"), dated as of
February 1, 2002, is between Dakota Imaging, Inc., a North Dakota corporation
("Dakota") with a place of business at 0000 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxxx
Xxxxxx; Dakota Subsidiary Corp., a Nevada corporation ("DSC") with a place of
business at 0000 Xxxx Xxxxx Xxxxx, Xxx Xxxxx, Xxxxxx 00000; and Voyager
Ventures, Inc., a Nevada corporation ("Voyager") with a place of business at
0000 Xxxx Xxxx Xxxxxx, Xxx Xxxxx, XX 00000.
Whereas, the Boards of Directors of Dakota, DSC and Voyager each have,
in light of and subject to the terms and conditions set forth herein, (i)
determined that the Merger (as defined below) is fair to their respective
stockholders and in the best interests of such stockholders and (ii) approved
the Merger in accordance with this Agreement;
Whereas, for Federal income tax purposes, it is intended that the Merger
qualify as a reorganization under the provisions of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "Code"); and
Whereas, Dakota and Voyager desire to make certain representations,
warranties, covenants and agreements in connection with the Merger and also
to prescribe various conditions to the Merger.
Now, therefore, in consideration of the premises and the
representations, warranties, covenants and agreements herein contained, and
intending to be legally bound hereby, Dakota and Voyager hereby agree as
follows:
ARTICLE I
The Merger
Section 1.1. The Merger. Dakota has taken action to form a new
corporation, as a wholly owned subsidiary of Dakota, Dakota Subsidiary Corp.
("DSC") as a Nevada corporation to implement a reverse triangular merger. At
the Effective Time and upon the terms and subject to the conditions of this
Agreement and in accordance with the General Corporation Law of the state of
Nevada (the "NGCL"), DSC shall be merged with and into Voyager (as defined
below) (the ``Merger"). Following the Merger, Voyager shall continue as the
surviving corporation (the "Surviving Corporation"), shall continue to be
governed by the laws of the jurisdiction of its incorporation or organization
and the separate corporate existence of DSC shall cease. Voyager shall
continue its existence as a wholly owned subsidiary of Dakota. Prior to the
Effective Time, the parties hereto shall mutually agree as to the name of the
Surviving Corporation; however, initially the Surviving Corporation shall be
named Voyager Ventures, Inc., a Nevada corporation. The Merger is intended
to qualify as a tax-free reorganization under Section 368 of the Code as
relates to the non-cash exchange of stock referenced herein.
Section 1.2. Effective Time. Subject to the terms and conditions set
forth in this Agreement, a Certificate of Merger (the "Merger Certificate")
shall be duly executed and acknowledged by each of Voyager and DSC, and
thereafter the Merger Certificate reflecting the Merger shall be delivered to
the Secretary of State of the State of Nevada for filing pursuant to the NGCL
on the Closing Date (as defined in Section 1.3). The Merger shall become
effective at such time as a properly executed and certified copy of the
Merger Certificate is duly filed by the Secretary of State of the State of
Nevada in accordance with the NGCL or such later time as the parties may
agree upon and set forth in the Merger Certificate (the time at which the
Merger becomes effective shall be referred to herein as the "Effective
Time").
Section 1.3. Closing of the Merger. The closing of the Merger (the
"Closing") will take place at a time and on a date to be specified by the
parties, which shall be no later than the second business day after
satisfaction of the latest to occur of the conditions set forth in Article 5
(the "Closing Date"), at the offices of Sperry Young & Xxxxxxxxxx, 0000 X.
Xxxxxxxx Xx., Xxxxx 000, Xxx Xxxxx, Xxxxxx, unless another time, date or
place is agreed to in writing by the parties hereto.
1
Section 1.4. Effects of the Merger. The Merger shall have the effects
set forth in the NGCL. Without limiting the generality of the foregoing, and
subject thereto, at the Effective Time, all the properties, rights,
privileges, powers of DSC shall vest in the Surviving Corporation, and all
debts, liabilities and duties of DSC shall become the debts, liabilities and
duties of the Surviving Corporation. Concurrently, Voyager shall remain a
wholly owned subsidiary of Dakota.
Section 1.5. Board of Directors and Officers.
(a) Board of Directors of DSC. At or prior to the Effective Time, Dakota
agrees to take such action as is necessary (i) to cause the number of
directors comprising the full Board of Directors of DSC to be one (1) person
and (ii) to cause Xxxx X. Xxxxxx, (the "Dakota Designee") to be elected as
sole director of DSC.
(b) Board of Directors of Dakota. At or prior to the Effective Time,
each of Voyager and Dakota agrees to take such action as is necessary (i) to
cause the number of directors comprising the full Board of Directors of
Dakota to be three (3) persons and (ii) to cause Xxxxx Xxxxxxxx, Xxxxxx
Xxxxxxx, and Xxxxxxx Xxxxxxxx (the "Voyager Designees") to be elected as
directors of Dakota. If the Voyager Designees, respectively, shall decline
or be unable to serve as a director(s) prior to the Effective Time, Voyager
shall nominate another person to serve in such person's stead, which such
person shall be subject to approval of the other party. From and after the
Effective Time, and until successors are duly elected or appointed and
qualified in accordance with applicable law, Xxxxx Xxxxxxxx shall be Chief
Executive Officer and Chairman of the Board, Xxxxxxx Xxxxxxxx shall be
President/Secretary/Treasurer of Dakota.
Section 1.6. Conversion of Shares.
(a) At the Effective Time, each share of common stock, par value $.001
per share of Voyager (individually a "Voyager Share" and collectively, the
"Voyager Shares") issued and outstanding immediately prior to the Effective
Time shall, by virtue of the Merger and without any action on the part of
Voyager, Dakota, DSC or the holder thereof, be converted into and shall
become fully paid and nonassessable Dakota Series A Preferred Shares
determined by dividing (i) 3,660,000, by (ii) the total number of shares of
Voyager, Thirty-six Million Six Hundred Thousand (36,600,000) outstanding
immediately prior to the Effective Time (such quotient, the "Exchange
Ratio"). The holder of one or more shares of Voyager common stock shall be
entitled to receive in exchange therefor a number of shares of Dakota Series
A Preferred Stock equal to the product of (x) (the number of shares of
Voyager common stock (36,600,000), times (y) (the Exchange Ratio). Dakota
Shares and Voyager Shares are sometimes referred to collectively herein as
"Shares." By way of example, 3,600,000/ 36,600,000 = .10 (the Exchange
Ratio). The number of shares of Voyager common stock held by a stockholder
(100,000) times the Exchange Ratio of .10 equals 10,000 shares of Dakota
Series A Preferred Shares to be issued.
(b) At the Effective Time, each Voyager Share held in the treasury of
Voyager immediately prior to the Effective Time shall, by virtue of the
Merger and without any action on the part of Voyager, DSC or Dakota be
canceled, retired and cease to exist and no payment shall be made with
respect thereto.
Section 1.7. Exchange of Certificates.
(a) Prior to the Effective Time, Dakota shall enter into an agreement
with, and shall deposit with, Sperry Young & Xxxxxxxxxx, or such other agent
or agents as may be satisfactory to Dakota and Voyager (the "Exchange
Agent'), for the benefit of the holders of Voyager Shares, for exchange
through the Exchange Agent in accordance with this Article I: (i)
certificates representing the appropriate number of Dakota Series A Preferred
Shares to be issued to holders of Voyager Shares issuable pursuant to Section
1.6 in exchange for outstanding Voyager Shares.
(b) As soon as reasonably practicable after the Effective Time, the
Exchange Agent shall mail to each holder of record of a certificate or
certificates which immediately prior to the Effective Time represented
outstanding Voyager Shares (the "Certificates") whose shares were converted
into the right to receive Dakota Shares pursuant to Section 1.6: (i) a letter
of transmittal (which shall specify that delivery shall be effected, and risk
of loss and title to the Certificates shall pass, only upon delivery of the
Certificates to the Exchange Agent and shall be in such form and have such
other provisions as Voyager and Dakota may reasonably specify) and (ii)
instructions for use in effecting the surrender of the Certificates in
exchange for certificates representing Dakota Series A Preferred Shares. Upon
surrender of a Certificate to the Exchange Agent, together with such letter
of transmittal, duly executed, and any other required documents, the holder
of such Certificate shall be entitled to receive in exchange therefor a
2
certificate representing that number of whole Dakota Series A Preferred
Shares and, if applicable, a check representing the cash consideration to
which such holder may be entitled on account of the Cash Fund, which such
holder has the right to receive pursuant to the provisions of this Article I,
and the Certificate so surrendered shall forthwith be canceled. In the event
of a transfer of ownership of Voyager Shares which are not registered in the
transfer records of Voyager, a certificate representing the proper number of
Dakota Series A Preferred Shares may be issued to a transferee if the
Certificate representing such Voyager Shares is presented to the Exchange
Agent accompanied by all documents required by the Exchange Agent or Dakota
to evidence and effect such transfer and by evidence that any applicable
stock transfer or other taxes have been paid. Until surrendered as
contemplated by this Section 1.7, each Certificate shall be deemed at any
time after the Effective Time to represent only the right to receive upon
such surrender the certificate representing Dakota Series A Preferred Shares
as contemplated by this Section 1.8.
(c) No dividends or other distributions declared or made after the
Effective Time with respect to Dakota Series A Preferred Shares with a record
date after the Effective Time shall be paid to the holder of any
unsurrendered Certificate with respect to the Dakota Series A Preferred
Shares represented thereby until the holder of record of such Certificate
shall surrender such Certificate.
(d) In the event that any Certificate for Voyager Shares or Dakota
Series A Preferred Shares shall have been lost, stolen or destroyed, the
Exchange Agent shall issue in exchange therefor, upon the making of an
affidavit of that fact by the holder thereof such Dakota Series A Preferred
Shares and cash in lieu of fractional Dakota Series A Preferred Shares, if
any, as may be required pursuant to this Agreement; provided, however, that
Dakota or the Exchange Agent, may, in its respective discretion, require the
delivery of a suitable bond, opinion or indemnity.
(e) All Dakota Series A Preferred Shares issued upon the surrender for
exchange of Voyager Shares in accordance with the terms hereof shall be
deemed to have been issued in full satisfaction of all rights pertaining to
such Voyager Shares. There shall be no further registration of transfers on
the stock transfer books of either of Voyager or Dakota of the Voyager Shares
or Dakota Series A Preferred Shares which were outstanding immediately prior
to the Effective Time. If, after the Effective Time, Certificates are
presented to Dakota for any reason, they shall be canceled and exchanged as
provided in this Article I.
(f) No fractional Dakota Series A Preferred Shares shall be issued in
the Merger, but in lieu thereof each holder of Voyager Shares otherwise
entitled to a fractional Dakota Share shall, upon surrender of its, his or
her Certificate or Certificates, be entitled to receive an additional share
to round up to the nearest round number of shares in lieu of any cash
payment, at the option of Dakota.
Section 1.8. Stock Options. At the Effective Time, each outstanding
option to purchase Voyager Shares, if any (a "Voyager Stock Option" or
collectively, "Voyager Stock Options") issued pursuant to any Voyager Stock
Option Plan or Voyager Long Term Incentive Plan whether vested or unvested,
shall be cancelled.
Section 1.9. Taking of Necessary Action; Further Action. If, at any time
after the Effective Time, Voyager or Dakota reasonably determines that any
deeds, assignments, or instruments or confirmations of transfer are necessary
or desirable to carry out the purposes of this Agreement and to vest Dakota
with full right, title and possession to all assets, property, rights,
privileges, powers and franchises of Voyager, the officers and directors of
Dakota and Voyager are fully authorized in the name of their respective
corporations or otherwise to take, and will take, all such lawful and
necessary or desirable action.
ARTICLE 2
Representations and Warranties of Dakota
Except as set forth on the Disclosure Schedule delivered by Dakota to
Voyager (the "Dakota Disclosure Schedule"), Dakota hereby represents and
warrants to Voyager as follows:
3
Section 2.1. Organization and Qualification.
(a) Dakota is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or organization and
has all requisite power and authority to own, lease and operate its
properties and to carry on its businesses as now being conducted, except
where the failure to be so organized, existing and in good standing or to
have such power and authority would not have a Material Adverse Effect (as
defined below) on Dakota. When used in connection with Dakota, the term
"Material Adverse Effect" means any change or effect (i) that is or is
reasonably likely to be materially adverse to the business, results of
operations, condition (financial or otherwise) or prospects of Dakota, other
than any change or effect arising out of general economic conditions
unrelated to any business in which Dakota is engaged, or (ii) that may impair
the ability of Dakota to perform its obligations hereunder or to consummate
the transactions contemplated hereby.
(b) Dakota has heretofore delivered to Voyager accurate and complete
copies of the Certificate of Incorporation and Bylaws (or similar governing
documents), as currently in effect, of Dakota. Except as set forth on
Schedule 2.1 of the Dakota Disclosure Schedule, Dakota is duly qualified or
licensed and in good standing to do business in each jurisdiction in which
the property owned, leased or operated by it or the nature of the business
conducted by it makes such qualification or licensing necessary, except in
such jurisdictions where the failure to be so duly qualified or licensed and
in good standing would not have a Material Adverse Effect on Dakota.
Section 2.2. Capitalization of Dakota.
(a) The authorized capital stock of Dakota consists of; (i) One Hundred
Million (100,000,000) Common Shares, of which, as of October 31, 2001,
11,723,000 Common Shares were issued and outstanding (a 5:1 forward split
occurred in January 2002 resulting in 58,615,000 Common Shares issued and
outstanding), and (ii) Fifty Million (50,000,000) Series A Preferred Shares,
of which, as of October 31, 2001, no shares were issued or outstanding. All
of the outstanding Dakota Common Shares have been duly authorized and validly
issued, and are fully paid, nonassessable and free of preemptive rights.
Except as set forth herein, as of the date hereof, there are no outstanding
(i) shares of capital stock or other voting securities of Dakota, (ii)
securities of Dakota convertible into or exchangeable for shares of capital
stock or voting securities of Dakota, (iii) options or other rights to
acquire from Dakota and, except as described in the Dakota SEC Reports (as
defined below), no obligations of Dakota to issue, any capital stock, voting
securities or securities convertible into or exchangeable for capital stock
or voting securities of Dakota, and (iv) equity equivalents, interests in the
ownership or earnings of Dakota or other similar rights (collectively,
"Dakota Securities"). As of the date hereof, except as set forth on Schedule
2.2(a) of the Dakota Disclosure Schedule there are no outstanding obligations
of Dakota or its subsidiaries to repurchase, redeem or otherwise acquire any
Dakota Securities or stockholder agreements, voting trusts or other
agreements or understandings to which Dakota is a party or by which it is
bound relating to the voting or registration of any shares of capital stock
of Dakota. For purposes of this Agreement, ``Lien" means, with respect to any
asset (including, without limitation, any security) any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of
such asset.
(b) The Common Shares constitute the only class of equity securities of
Dakota registered or required to be registered under the Exchange Act.
(c) Dakota does not own directly or indirectly more than fifty percent
(50%) of the outstanding voting securities or interests (including membership
interests) of any entity, other than as specifically disclosed in the
disclosure documents.
Section 2.3. Authority Relative to this Agreement. Dakota has all
necessary corporate power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement, and the consummation of the transactions
contemplated hereby, have been duly and validly authorized by the Board of
Directors of Dakota (the "Dakota Board") and no other corporate proceedings
on the part of Dakota are necessary to authorize this Agreement or to
consummate the transactions contemplated hereby, except, as referred to in
Section 2.17, the approval and adoption of this Agreement by the majority of
Dakota's board of directors and a majority of the holders the outstanding
common shares of DSC. This Agreement has been duly and validly executed and
delivered by Dakota and constitutes a valid, legal and binding agreement of
Dakota, enforceable against Dakota in accordance with its terms.
4
Section 2.4. SEC Reports; Financial Statements.
(a) Dakota has filed all required forms, reports and documents with the
Securities and Exchange Commission (the "SEC") since the filing of its SB-2
on August 21, 2001, each of which has complied in all material respects with
all applicable requirements of the Securities Act of 1933, as amended (the
"Securities Act"), and the Exchange Act (and the rules and regulations
promulgated thereunder, respectively), each as in effect on the dates such
forms, reports and documents were filed. Dakota has heretofore delivered or
promptly will deliver prior to the Effective Date to Voyager, in the form
filed with the SEC (including any amendments thereto but excluding any
exhibits), (i) its Annual Report on Form 10-KSB for the fiscal year ended
October 31, 2001, (ii) all definitive proxy statements relating to Dakota's
meetings of stockholders (whether annual or special) held since January 31,
2001, if any, and (iii) all other reports or registration statements filed by
Dakota with the SEC since January 31, 2001 (all of the foregoing,
collectively, the "Dakota SEC Reports"). None of such Dakota SEC Reports,
including, without limitation, any financial statements or schedules included
or incorporated by reference therein, contained, when filed, any untrue
statement of a material fact or omitted to state a material fact required to
be stated or incorporated by reference therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading. The audited financial statements of Dakota included in
the Dakota SEC Reports fairly present, in conformity with generally accepted
accounting principles applied on a consistent basis (except as may be
indicated in the notes thereto), the financial position of Dakota as of the
dates thereof and its results of operations and changes in financial position
for the periods then ended. All material agreements, contracts and other
documents required to be filed as exhibits to any of the Dakota SEC Reports
have been so filed.
(b) Dakota has heretofore made available or promptly will make available
to Voyager a complete and correct copy of any amendments or modifications
which are required to be filed with the SEC but have not yet been filed with
the SEC, to agreements, documents or other instruments which previously had
been filed by Dakota with the SEC pursuant to the Exchange Act.
Section 2.5. Information Supplied. None of the information supplied or
to be supplied by Dakota for inclusion or incorporation by reference in
connection with the Merger will at the date mailed to stockholders of Dakota
and at the times of the meeting or meetings of the Board of Directors of
Dakota to be held in connection with the Merger, contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading.
Section 2.6. Consents and Approvals; No Violations. Except for filings,
permits, authorizations, consents and approvals as may be required under, and
other applicable requirements of, the Securities Act, the Exchange Act, state
securities or blue sky laws, the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act
of 1916, as amended (the ``HSR Act''), the rules of the National Association
of Securities Dealers, Inc. ("NASD"), the filing and recordation of the
Merger Certificate as required by the NGCL, and as set forth on Schedule 2.6
of the Dakota Disclosure Schedule no filing with or notice to, and no permit,
authorization, consent or approval of, any court or tribunal or
administrative, governmental or regulatory body, agency or authority (a
"Governmental Entity") is necessary for the execution and delivery by Dakota
of this Agreement or the consummation by Dakota of the transactions
contemplated hereby, except where the failure to obtain such permits,
authorizations, consents or approvals or to make such filings or give such
notice would not have a Material Adverse Effect on Dakota.
Except as set forth in Section 2.6 of the Dakota Disclosure Schedule,
neither the execution, delivery and performance of this Agreement by Dakota
nor the consummation by Dakota of the transactions contemplated hereby will
(i) conflict with or result in any breach of any provision of the respective
Certificate of Incorporation or Bylaws (or similar governing documents) of
Dakota, (ii) result in a violation or breach of, or constitute (with or
without due notice or lapse of time or both) a default (or give rise to any
right of termination, amendment, cancellation or acceleration or Lien) under,
any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, lease, license, contract, agreement or other instrument or
obligation to which Dakota is a party or by which any of its properties or
assets may be bound, or (iii) violate any order, writ, injunction, decree,
law, statute, rule or regulation applicable to Dakota or any of its
properties or assets, except in the case of (ii) or (iii) for violations,
breaches or defaults which would not have a Material Adverse Effect on
Dakota.
5
Section 2.7. No Default. Except as set forth in Section 2.7 of the
Dakota Disclosure Schedule, Dakota is not in breach, default or violation
(and no event has occurred which with notice or the lapse of time or both
would constitute a breach default or violation) of any term, condition or
provision of (i) its Certificate of Incorporation or Bylaws (or similar
governing documents), (ii) any note, bond, mortgage, indenture, lease,
license, contract, agreement or other instrument or obligation to which
Dakota is now a party or by which any of its respective properties or assets
may be bound or (iii) any order, writ injunction, decree, law, statute, rule
or regulation applicable to Dakota or any of its respective properties or
assets, except in the case of (ii) or (iii) for violations, breaches or
defaults that would not have a Material Adverse Effect on Dakota. Except as
set forth in Section 2.7 of the Dakota Disclosure Schedule, each note, bond,
mortgage, indenture, lease, license, contract, agreement or other instrument
or obligation to which Dakota is now a party or by which its respective
properties or assets may be bound that is material to Dakota and that has not
expired is in full force and effect and is not subject to any material
default thereunder of which Dakota is aware by any party obligated to Dakota
thereunder.
Section 2.8. No Undisclosed Liabilities; Absence of Changes. Except as
set forth in Section 2.8 of the Dakota Disclosure Schedule and except as and
to the extent publicly disclosed by Dakota in the Dakota SEC Reports, as of
September 30, 2000, Dakota does not have any liabilities or obligations of
any nature, whether or not accrued, contingent or otherwise, that would be
required by generally accepted accounting principles to be reflected on a
balance sheet of Dakota (including the notes thereto) or which would have a
Material Adverse Effect on Dakota. Except as publicly disclosed by Dakota,
since October 31, 2001, Dakota has not incurred any liabilities of any
nature, whether or not accrued, contingent or otherwise, which could
reasonably be expected to have, and there have been no events, changes or
effects with respect to Dakota having or which reasonably could be expected
to have, a Material Adverse Effect on Dakota. Except as and to the extent
publicly disclosed by Dakota in the Dakota SEC Reports and except as set
forth in Section 2.8 of the Dakota Disclosure Schedule, since October 31,
2001, there has not been (i) any material change by Dakota in its accounting
methods, principles or practices (other than as required after the date
hereof by concurrent changes in generally accepted accounting principles),
(ii) any revaluation by Dakota of any of its assets having a Material Adverse
Effect on Dakota, including, without limitation, any write-down of the value
of any assets other than in the ordinary course of business or (iii) any
other action or event that would have required the consent of any other party
hereto pursuant to Section 4.1 of this Agreement had such action or event
occurred after the date of this Agreement.
Section 2.9. Litigation. Except as publicly disclosed by Dakota in the
Dakota SEC Reports, there is no suit, claim, action, proceeding or
investigation pending or, to the knowledge of Dakota, threatened against
Dakota or any of its subsidiaries or any of their respective properties or
assets before any Governmental Entity which, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect on
Dakota or could reasonably be expected to prevent or delay the consummation
of the transactions contemplated by this Agreement. Except as publicly
disclosed by Dakota in the Dakota SEC Reports, Dakota is not subject to any
outstanding order, writ, injunction or decree which, insofar as can be
reasonably foreseen in the future, could reasonably be expected to have a
Material Adverse Effect on Dakota or could reasonably be expected to prevent
or delay the consummation of the transactions contemplated hereby.
Section 2.10. Compliance with Applicable Law. Except as publicly
disclosed by Dakota in the Dakota SEC Reports, Dakota holds all permits,
licenses, variances, exemptions, orders and approvals of all Governmental
Entities necessary for the lawful conduct of their respective businesses (the
"Dakota Permits"), except for failures to hold such permits, licenses,
variances, exemptions, orders and approvals which would not have a Material
Adverse Effect on Dakota. Except as publicly disclosed by Dakota in the
Dakota SEC Reports, Dakota is in compliance with the terms of the Dakota
Permits, except where the failure so to comply would not have a Material
Adverse Effect on Dakota. Except as publicly disclosed by Dakota in the
Dakota SEC Reports, the business of Dakota is not being conducted in
violation of any law, ordinance or regulation of any Governmental Entity
except that no representation or warranty is made in this Section 2.10 with
respect to Environmental Laws (as defined in Section 2.12 below) and except
for violations or possible violations which do not, and, insofar as
reasonably can be foreseen, in the future will not, have a Material Adverse
Effect on Dakota. Except as publicly disclosed by Dakota in the Dakota SEC
Reports, no investigation or review by any Governmental Entity with respect
to Dakota is pending or, to the knowledge of Dakota, threatened, nor, to the
knowledge of Dakota, has any Governmental Entity indicated an intention to
conduct the same, other than, in each case, those which Dakota reasonably
believes will not have a Material Adverse Effect on Dakota.
6
Section 2.11. Employee Benefit Plans; Labor Matters.
(a) Except as set forth in Section 2.11(a) of the Dakota Disclosure
Schedule with respect to each employee benefit plan, program, policy,
arrangement and contract (including, without limitation, any "employee
benefit plan," as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")), maintained or contributed to at
any time by Dakota or any entity required to be aggregated with Dakota
pursuant to Section 414 of the Code (each, a "Dakota Employee Plan"), no
event has occurred and to the knowledge of Dakota, no condition or set of
circumstances exists in connection with which Dakota could reasonably be
expected to be subject to any liability which would have a Material Adverse
Effect on Dakota.
(b) (i) No Dakota Employee Plan is or has been subject to Title IV of
ERISA or Section 412 of the Code; and (ii) each Dakota Employee Plan intended
to qualify under Section 401(a) of the Code and each trust intended to
qualify under Section 501(a) of the Code is the subject of a favorable
Internal Revenue Service determination letter, and nothing has occurred which
could reasonably be expected to adversely affect such determination.
(c) Section 2.11(c) of the Dakota Disclosure Schedule sets forth a true
and complete list, as of the date of this Agreement, of each person who holds
any Dakota Stock Options, together with the number of Dakota Shares which are
subject to such option, the date of grant of such option, the extent to which
such option is vested (or will become vested as a result of the Merger), the
option price of such option (to the extent determined as of the date hereof),
whether such option is a nonqualified stock option or is intended to qualify
as an incentive stock option within the meaning of Section 422(b) of the
Code, and the expiration date of such option. Section 2.11(c) of the Dakota
Disclosure Schedule also sets forth the total number of such incentive stock
options and such nonqualified options. Dakota has furnished Voyager with
complete copies of the plans pursuant to which the Dakota Stock Options were
issued. Other than the automatic vesting of Dakota Stock Options that may
occur without any action on the part of Dakota or its officers or directors,
Dakota has not taken any action that would result in any Dakota Stock Options
that are unvested becoming vested in connection with or as a result of the
execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby.
(d) Dakota has made available to Voyager (i) a description of the terms
of employment and compensation arrangements of all officers of Dakota and a
copy of each such agreement currently in effect; (ii) copies of all
agreements with consultants who are individuals obligating Dakota to make
annual cash payments in an amount exceeding $5,000; (iii) a schedule listing
all officers of Dakota who have executed a non-competition agreement with
Dakota and a copy of each such agreement currently in effect; (iv) copies (or
descriptions) of all severance agreements, programs and policies of Dakota
with or relating to its employees, except programs and policies required to
be maintained by law; and (v) copies of all plans, programs, agreements and
other arrangements of Dakota with or relating to its employees which contain
change in control provisions all of which are set forth in Section 2.11(d) of
the Dakota Disclosure Schedule.
(e) There shall be no payment, accrual of additional benefits,
acceleration of payments, or vesting in any benefit under any Dakota Employee
Plan or any agreement or arrangement disclosed under this Section 2.11 solely
by reason of entering into or in connection with the transactions
contemplated by this Agreement.
(f) There are no controversies pending or, to the knowledge of Dakota,
threatened, between Dakota and any of their employees, which controversies
have or could reasonably be expected to have a Material Adverse Effect on
Dakota. Neither Dakota nor any of its subsidiaries is a party to any
collective bargaining agreement or other labor union contract applicable to
persons employed by Dakota or any of its subsidiaries (and neither Dakota nor
any of its subsidiaries has any outstanding material liability with respect
to any terminated collective bargaining agreement or labor union contract),
nor does Dakota know of any activities or proceedings of any labor union to
organize any of its or employees. Dakota has no knowledge of any strike,
slowdown, work stoppage, lockout or threat thereof, by or with respect to any
of its employees.
Section 2.12. Environmental Laws and Regulations.
(a) Except as publicly disclosed by Dakota in the Dakota SEC Reports,
(i) Dakota is in material compliance with all applicable federal, state,
local and foreign laws and regulations relating to pollution or protection of
human health or the environment (including, without limitation, ambient air,
7
surface water, ground water, land surface or subsurface strata)
(collectively, "Environmental Laws"), except for non-compliance that would
not have a Material Adverse Effect on Dakota, which compliance includes, but
is not limited to, the possession by Dakota of all material permits and other
governmental authorizations required under applicable Environmental Laws, and
compliance with the terms and conditions thereof; (ii) Dakota has not
received written notice of, or, to the knowledge of Dakota, is the subject
of, any action, cause of action, claim, investigation, demand or notice by
any person or entity alleging liability under or non-compliance with any
Environmental Law (an ``Environmental Claim") that could reasonably be
expected to have a Material Adverse Effect on Dakota; and (iii) to the
knowledge of Dakota, there are no circumstances that are reasonably likely to
prevent or interfere with such material compliance in the future.
(b) Except as publicly disclosed by Dakota, there are no Environmental
Claims which could reasonably be expected to have a Material Adverse Effect
on Dakota that are pending or, to the knowledge of Dakota, threatened against
Dakota or, to the knowledge of Dakota, against any person or entity whose
liability for any Environmental Claim Dakota has or may have retained or
assumed either contractually or by operation of law.
Section 2.13. Tax Matters.
(a) Except as set forth in Section 2.13 of the Dakota Disclosure
Schedule: (i) Dakota has filed or has had filed on its behalf in a timely
manner (within any applicable extension periods) with the appropriate
Governmental Entity all income and other material Tax Returns (as defined
herein) with respect to Taxes (as defined herein) of Dakota and all Tax
Returns were in all material respects true, complete and correct; (ii) all
material Taxes with respect to Dakota have been paid in full or have been
provided for in accordance with GAAP on Dakota's most recent balance sheet
which is part of the Dakota SEC Documents. (iii) there are no outstanding
agreements or waivers extending the statutory period of limitations
applicable to any federal, state, local or foreign income or other material
Tax Returns required to be filed by or with respect to Dakota; (iv) to the
knowledge of Dakota none of the Tax Returns of or with respect to Dakota is
currently being audited or examined by any Governmental Entity; and (v) no
deficiency for any income or other material Taxes has been assessed with
respect to Dakota which has not been abated or paid in full.
(b) For purposes of this Agreement, (i) "Taxes" shall mean all taxes,
charges, fees, levies or other assessments, including, without limitation,
income, gross receipts, sales, use, ad valorem, goods and services, capital,
transfer, franchise, profits, license, withholding, payroll, employment,
employer health, excise, estimated, severance, stamp, occupation, property or
other taxes, customs duties, fees, assessments or charges of any kind
whatsoever, together with any interest and any penalties, additions to tax or
additional amounts imposed by any taxing authority and (ii) "Tax Return"
shall mean any report, return, documents declaration or other information or
filing required to be supplied to any taxing authority or jurisdiction with
respect to Taxes.
Section 2.14. Title to Property. Dakota has good and defensible title to
all of its properties and assets, free and clear of all liens, charges and
encumbrances except liens for taxes not yet due and payable and such liens or
other imperfections of title, if any, as do not materially detract from the
value of or interfere with the present use of the property affected thereby
or which, individually or in the aggregate, would not have a Material Adverse
Effect on Dakota; and, to Dakota's knowledge, all leases pursuant to which
Dakota leases from others real or personal property are in good standing,
valid and effective in accordance with their respective terms, and there is
not, to the knowledge of Dakota, under any of such leases, any existing
material default or event of default (or event which with notice of lapse of
time, or both, would constitute a default and in respect of which Dakota has
not taken adequate steps to prevent such a default from occurring) except
where the lack of such good standing, validity and effectiveness, or the
existence of such default or event, would not have a Material Adverse Effect
on Dakota.
Section 2.15. Intellectual Property.
(a) Dakota owns, or possesses adequate licenses or other valid rights to
use, all existing United States and foreign patents, trademarks, trade names,
service marks, copyrights, trade secrets and applications therefor that are
material to its business as currently conducted (the "Dakota Intellectual
Property Rights").
(b) The validity of the Dakota Intellectual Property Rights and the
title thereto of Dakota is not being questioned in any litigation to which
Dakota is a party.
8
(c) Except as set forth in Section 2.15(c) of the Dakota Disclosure
Schedule, the conduct of the business of Dakota as now conducted does not, to
Dakota's knowledge, infringe any valid patents, trademarks, trade names,
service marks or copyrights of others. The consummation of the transactions
completed hereby will not result in the loss or impairment of any Dakota
Intellectual Property Rights.
(d) Dakota has taken steps it believes appropriate to protect and
maintain its trade secrets as such, except in cases where Dakota has elected
to rely on patent or copyright protection in lieu of trade secret protection.
Section 2.16. Insurance. Dakota currently does not maintain general
liability and other business insurance.
Section 2.17. Vote Required. The affirmative vote of the holders of at
least a majority of the Board of Directors of Dakota and the majority of the
vote of shares of DSC are the only votes necessary to approve and adopt this
Agreement and the Merger.
Section 2.18. Tax Treatment. Neither Dakota nor, to the knowledge of
Dakota, any of its affiliates has taken or agreed to take action that would
prevent the Merger from constituting a reorganization qualifying under the
provisions of Section 368(a) of the Code.
Section 2.19. Affiliates. Except for Principal Dakota Stockholder
("PDS") and the directors and executive officers of Dakota, each of whom is
listed in Section 2.19 of the Dakota Disclosure Schedule, there are no
persons who, to the knowledge of Dakota, may be deemed to be affiliates of
Dakota under Rule 1-02(b) of Regulation S-X of the SEC (the "Dakota
Affiliates").
Section 2.20. Certain Business Practices. None of Dakota or any
directors, officers, agents or employees of Dakota has (i) used any funds for
unlawful contributions, gifts, entertainment or other unlawful expenses
relating to political activity, (ii) made any unlawful payment to foreign or
domestic government officials or employees or to foreign or domestic
political parties or campaigns or violated any provision of the Foreign
Corrupt Practices Act of 1977, as amended (the "FCPA"), or (iii) made any
other unlawful payment.
Section 2.21. Insider Interests. Except as set forth in Section 2.21 of
the Dakota Disclosure Schedule, neither PDS nor any officer or director of
Dakota has any interest in any material property, real or personal, tangible
or intangible, including without limitation, any computer software or Dakota
Intellectual Property Rights, used in or pertaining to the business of
Dakota, expect for the ordinary rights of a stockholder or employee stock
optionholder.
Section 2.22. Opinion of Financial Adviser. No advisers, as of the date
hereof, have delivered to the Dakota Board a written opinion to the effect
that, as of such date, the exchange ratio contemplated by the Merger is fair
to the holders of Dakota Shares.
Section 2.23. Brokers. No broker, finder or investment banker (other
than the Dakota Financial Adviser, a true and correct copy of whose
engagement agreement has been provided to Voyager) is entitled to any
brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by
or on behalf of Dakota.
Section 2.24. Disclosure. No representation or warranty of Dakota in
this Agreement or any certificate, schedule, document or other instrument
furnished or to be furnished to Voyager pursuant hereto or in connection
herewith contains, as of the date of such representation, warranty or
instrument, or will contain any untrue statement of a material fact or, at
the date thereof, omits or will omit to state a material fact necessary to
make any statement herein or therein, in light of the circumstances under
which such statement is or will be made, not misleading.
Section 2.25. No Existing Discussions. As of the date hereof, Dakota is
not engaged, directly or indirectly, in any discussions or negotiations with
any other party with respect to any Third Party Acquisition (as defined in
Section 4.4).
9
Section 2.26. Material Contracts.
(a) Dakota has delivered or otherwise made available to Voyager true,
correct and complete copies of all contracts and agreements (and all
amendments, modifications and supplements thereto and all side letters to
which Dakota is a party affecting the obligations of any party thereunder) to
which Dakota is a party or by which any of its properties or assets are bound
that are, material to the business, properties or assets of Dakota taken as a
whole, including, without limitation, to the extent any of the following are,
individually or in the aggregate, material to the business, properties or
assets of Dakota taken as a whole, all: (i) employment, product design or
development, personal services, consulting, non-competition, severance,
golden parachute or indemnification contracts (including, without limitation,
any contract to which Dakota is a party involving employees of Dakota); (ii)
licensing, publishing, merchandising or distribution agreements; (iii)
contracts granting rights of first refusal or first negotiation; (iv)
partnership or joint venture agreements; (v) agreements for the acquisition,
sale or lease of material properties or assets or stock or otherwise entered
into since October 31, 2001; (vi) contracts or agreements with any
Governmental Entity. and (vii) all commitments and agreements to enter into
any of the foregoing (collectively, together with any such contracts entered
into in accordance with Section 4.1 hereof, the "Dakota Contracts"). Dakota
is not a party to or bound by any severance, golden parachute or other
agreement with any employee or consultant pursuant to which such person would
be entitled to receive any additional compensation or an accelerated payment
of compensation as a result of the consummation of the transactions
contemplated hereby.
(b) Each of the Dakota Contracts is valid and enforceable in accordance
with its terms, and there is no default under any Dakota Contract so listed
either by Dakota or, to the knowledge of Dakota, by any other party thereto,
and no event has occurred that with the lapse of time or the giving of notice
or both would constitute a default thereunder by Dakota or, to the knowledge
of Dakota, any other party, in any such case in which such default or event
could reasonably be expected to have a Material Adverse Effect on Dakota.
(c) No party to any such Dakota Contract has given notice to Dakota of
or made a claim against Dakota with respect to any breach or default
thereunder, in any such case in which such breach or default could reasonably
be expected to have a Material Adverse Effect on Dakota.
ARTICLE 3
Representations and Warranties of Voyager
Except as set forth on the Disclosure Schedule delivered by Voyager to
Dakota (the "Voyager Disclosure Schedule"), Voyager hereby represents and
warrants to Dakota as follows:
Section 3.1. Organization and Qualification.
(a) Each of Voyager and its subsidiaries is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or organization and has all requisite power and authority to
own, lease and operate its properties and to carry on its businesses as now
being conducted, except where the failure to be so organized, existing and in
good standing or to have such power and authority would not have a Material
Adverse Effect (as defined below) on Voyager. When used in connection with
Voyager, the term "Material Adverse Effect'' means any change or effect (i)
that is or is reasonably likely to be materially adverse to the business,
results of operations, condition (financial or otherwise) or prospects of
Voyager and its subsidiaries, taken as a whole, other than any change or
effect arising out of general economic conditions unrelated to any businesses
in which Voyager and its subsidiaries are engaged, or (ii) that may impair
the ability of Voyager to consummate the transactions contemplated hereby.
(b) Voyager has heretofore delivered to Dakota accurate and complete
copies of the Certificate of Incorporation and Bylaws (or similar governing
documents), as currently in effect, of Voyager. Each of Voyager and its
subsidiaries is duly qualified or licensed and in good standing to do
business in each jurisdiction in which the property owned, leased or operated
by it or the nature of the business conducted by it makes such qualification
or licensing necessary except in such jurisdictions where the failure to be
so duly qualified or licensed and in good standing would not have a Material
Adverse Effect on Voyager.
10
Section 3.2. Capitalization of Voyager.
(a) As of January 15, 2002, the authorized capital stock of Voyager
consists of; (i) Five Hundred Million (500,000,000) Voyager common Shares,
$.001 par value, 36.6 Million common Shares were issued and were outstanding.
All of the outstanding Voyager Shares have been duly authorized and validly
issued, and are fully paid, nonassessable and free of preemptive rights.
(b) Except as set forth in Section 3.2(b) of the Voyager Disclosure
Schedule, Voyager is the record and beneficial owner of all of the issued and
outstanding shares of capital stock of its subsidiaries.
(c) Except as set forth in Section 3.2(c) of the Voyager Disclosure
Schedule, between January 15, 2002 and the date hereof, no shares of
Voyager's capital stock have been issued and no Voyager Stock options have
been granted. Except as set forth in Section 3.2(a) above, as of the date
hereof, there are no outstanding (i) shares of capital stock or other voting
securities of Voyager, (ii) securities of Voyager or its subsidiaries
convertible into or exchangeable for shares of capital stock or voting
securities of Voyager, (iii) options or other rights to acquire from Voyager
or its subsidiaries, or obligations of Voyager or its subsidiaries to issue,
any capital stock, voting securities or securities convertible into or
exchangeable for capital stock or voting securities of Voyager, or (iv)
equity equivalents, interests in the ownership or earnings of Voyager or its
subsidiaries or other similar rights (collectively, "Voyager Securities"). As
of the date hereof, there are no outstanding obligations of Voyager or any of
its subsidiaries to repurchase, redeem or otherwise acquire any Voyager
Securities. There are no stockholder agreements, voting trusts or other
agreements or understandings to which Voyager is a party or by which it is
bound relating to the voting or registration of any shares of capital stock
of Voyager.
(d) Except as set forth in Section 3.2(d) of the Voyager Disclosure
Schedule, there are no securities of Voyager convertible into or exchangeable
for, no options or other rights to acquire from Voyager, and no other
contract, understanding, arrangement or obligation (whether or not
contingent) providing for the issuance or sale, directly or indirectly, of
any capital stock or other ownership interests in, or any other securities
of, any subsidiary of Voyager.
(e) The Voyager Shares constitute the only class of equity securities of
Voyager or its subsidiaries.
(f) Except as set forth in Section 3.2(f) of the Voyager Disclosure
Schedule, Voyager does not own directly or indirectly more than fifty percent
(50%) of the outstanding voting securities or interests (including membership
interests) of any entity.
Section 3.3. Authority Relative to this Agreement; Recommendation.
(a) Voyager has all necessary corporate power and authority to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly and validly authorized by
the Board of Directors of Voyager (the "Voyager Board"), and no other
corporate proceedings on the part of Voyager are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby, except, as
referred to in Section 3.17, the approval and adoption of this Agreement by
the holders of at least a majority of the then outstanding Voyager Shares.
This Agreement has been duly and validly executed and delivered by Voyager
and constitutes a valid, legal and binding agreement of Voyager, enforceable
against Voyager in accordance with its terms.
(b) The Voyager Board has resolved to recommend that the stockholders of
Voyager approve and adopt this Agreement.
Section 3.4. SEC Reports; Financial Statements. Voyager is not required
to file forms, reports and documents with the SEC.
11
Section 3.5. Information Supplied. None of the information supplied or
to be supplied by Voyager for inclusion or incorporation by reference to the
8-K will, at the time the 8-K is filed with the SEC and at the time it
becomes effective under the Securities Act, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading. The 8-K
will comply as to form in all material respects with the provisions of the
Securities Act and the rules and regulations thereunder.
Section 3.6. Consents and Approvals; No Violations. Except as set forth
in Section 3.6 of the Voyager Disclosure Schedule, and for filings, permits,
authorizations, consents and approvals as may be required under, and other
applicable requirements of, the Securities Act, the Exchange Act, state
securities or blue sky laws, the HSR Act, the rules of the NASD, and the
filing and recordation of the Merger Certificate as required by the NGCL, no
filing with or notice to, and no permit, authorization, consent or approval
of, any Governmental Entity is necessary for the execution and delivery by
Voyager of this Agreement or the consummation by Voyager of the transactions
contemplated hereby, except where the failure to obtain such permits,
authorizations consents or approvals or to make such filings or give such
notice would not have a Material Adverse Effect on Voyager.
Neither the execution, delivery and performance of this Agreement by
Voyager nor the consummation by Voyager of the transactions contemplated
hereby will (i) conflict with or result in any breach of any provision of the
respective Certificate of Incorporation or Bylaws (or similar governing
documents) of Voyager or any of Voyager's subsidiaries, (ii) result in a
violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination, amendment,
cancellation or acceleration or Lien) under, any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, lease, license, contract,
agreement or other instrument or obligation to which Voyager or any of
Voyager's subsidiaries is a party or by which any of them or any of their
respective properties or assets may be bound or (iii) violate any order,
writ, injunction, decree, law, statute, rule or regulation applicable to
Voyager or any of Voyager's subsidiaries or any of their respective
properties or assets, except in the case of (ii) or (iii) for violations,
breaches or defaults which would not have a Material Adverse Effect on
Voyager.
Section 3.7. No Default. None of Voyager or any of its subsidiaries is
in breach, default or violation (and no event has occurred which with notice
or the lapse of time or both would constitute a breach, default or violation)
of any term, condition or provision of (i) its Certificate of Incorporation
or Bylaws (or similar governing documents), (ii) any note, bond, mortgage,
indenture, lease, license, contract, agreement or other instrument or
obligation to which Voyager or any of its subsidiaries is now a party or by
which any of them or any of their respective properties or assets may be
bound or (iii) any order, writ, injunction, decree, law, statute, rule or
regulation applicable to Voyager, its subsidiaries or any of their respective
properties or assets, except in the case of (ii) or (iii) for violations,
breaches or defaults that would not have a Material Adverse Effect on
Voyager. Each note, bond, mortgage, indenture, lease, license, contract,
agreement or other instrument or obligation to which Voyager or any of its
subsidiaries is now a party or by which any of them or any of their
respective properties or assets may be bound that is material to Voyager and
its subsidiaries taken as a whole and that has not expired is in full force
and effect and is not subject to any material default thereunder of which
Voyager is aware by any party obligated to Voyager or any subsidiary
thereunder.
Section 3.8. No Undisclosed Liabilities; Absence of Changes. Except as
and to the extent disclosed by Voyager in the Voyager, none of Voyager or its
subsidiaries had any liabilities or obligations of any nature, whether or not
accrued, contingent or otherwise, that would be required by generally
accepted accounting principles to be reflected on a consolidated balance
sheet of Voyager and its consolidated subsidiaries (including the notes
thereto) or which would have a Material Adverse Effect on Voyager. Except as
disclosed by Voyager, none of Voyager or its subsidiaries has incurred any
liabilities of any nature, whether or not accrued, contingent or otherwise,
which could reasonably be expected to have, and there have been no events,
changes or effects with respect to Voyager or its subsidiaries having or
which could reasonably be expected to have, a Material Adverse Effect on
Voyager. Except as and to the extent disclosed by Voyager there has not been
(i) any material change by Voyager in its accounting methods, principles or
practices (other than as required after the date hereof by concurrent changes
in generally accepted accounting principles), (ii) any revaluation by Voyager
of any of its assets having a Material Adverse Effect on Voyager, including,
without limitation, any write-down of the value of any assets other than in
the ordinary course of business or (iii) any other action or event that would
have required the consent of any other party hereto pursuant to Section 4.2
of this Agreement had such action or event occurred after the date of this
Agreement.
12
Section 3.9. Litigation. Except as set forth in Schedule 3.9 of the
Voyager Disclosure Schedule there is no suit, claim, action, proceeding or
investigation pending or, to the knowledge of Voyager, threatened against
Voyager or any of its subsidiaries or any of their respective properties or
assets before any Governmental Entity which, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect on
Voyager or could reasonably be expected to prevent or delay the consummation
of the transactions contemplated by this Agreement. Except as disclosed by
Voyager, none of Voyager or its subsidiaries is subject to any outstanding
order, writ, injunction or decree which, insofar as can be reasonably
foreseen in the future, could reasonably be expected to have a Material
Adverse Effect on Voyager or could reasonably be expected to prevent or delay
the consummation of the transactions contemplated hereby.
Section 3.10. Compliance with Applicable Law. Except as disclosed by
Voyager, Voyager and its subsidiaries hold all permits, licenses, variances,
exemptions, orders and approvals of all Governmental Entities necessary for
the lawful conduct of their respective businesses (the "Voyager Permits"),
except for failures to hold such permits, licenses, variances, exemptions,
orders and approvals which would not have a Material Adverse Effect on
Voyager. Except as disclosed by Voyager, Voyager and its subsidiaries are in
compliance with the terms of the Voyager Permits, except where the failure so
to comply would not have a Material Adverse Effect on Voyager. Except as
disclosed by Voyager, the businesses of Voyager and its subsidiaries are not
being conducted in violation of any law, ordinance or regulation of any
Governmental Entity except that no representation or warranty is made in this
Section 3.10 with respect to Environmental Laws and except for violations or
possible violations which do not, and, insofar as reasonably can be foreseen,
in the future will not, have a Material Adverse Effect on Voyager. Except as
disclosed by Voyager no investigation or review by any Governmental Entity
with respect to Voyager or its subsidiaries is pending or, to the knowledge
of Voyager, threatened, nor, to the knowledge of Voyager, has any
Governmental Entity indicated an intention to conduct the same, other than,
in each case, those which Voyager reasonably believes will not have a
Material Adverse Effect on Voyager.
Section 3.11. Employee Benefit Plans; Labor Matters.
(a) With respect to each employee benefit plan, program, policy,
arrangement and contract (including, without limitation, any "employee
benefit plan," as defined in Section 3(3) of ERISA), maintained or
contributed to at any time by Voyager, any of its subsidiaries or any entity
required to be aggregated with Voyager or any of its subsidiaries pursuant to
Section 414 of the Code (each, a "Voyager Employee Plan"), no event has
occurred and, to the knowledge of Voyager, no condition or set of
circumstances exists in connection with which Voyager or any of its
subsidiaries could reasonably be expected to be subject to any liability
which would have a Material Adverse Effect on Voyager.
(b) (i) No Voyager Employee Plan is or has been subject to Title IV of
ERISA or Section 412 of the Code; and (ii) each Voyager Employee Plan
intended to qualify under Section 401(a) of the Code and each trust intended
to qualify under Section 501(a) of the Code is the subject of a favorable
Internal Revenue Service determination letter, and nothing has occurred which
could reasonably be expected to adversely affect such determination.
(c) Section 3.11(c) of the Voyager Disclosure Schedule sets forth a true
and complete list, as of the date of this Agreement, of each person who holds
any Voyager Stock Options, together with the number of Voyager Shares which
are subject to such option, the date of grant of such option, the extent to
which such option is vested (or will become vested as a result of the
Merger), the option price of such option (to the extent determined as of the
date hereof), whether such option is a nonqualified stock option or is
intended to qualify as an incentive stock option within the meaning of
Section 422(b) of the Code, and the expiration date of such option. Section
3.11(c) of the Voyager Disclosure Schedule also sets forth the total number
of such incentive stock options and such nonqualified options. Voyager has
furnished Dakota with complete copies of the plans pursuant to which the
Voyager Stock Options were issued. Other than the automatic vesting of
Voyager Stock Options that may occur without any action on the part of
Voyager or its officers or directors, Voyager has not taken any action that
would result in any Voyager Stock Options that are unvested becoming vested
in connection with or as a result of the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby.
13
(d) Voyager has made available to Dakota (i) a description of the terms
of employment and compensation arrangements of all officers of Voyager and a
copy of each such agreement currently in effect; (ii) copies of all
agreements with consultants who are individuals obligating Voyager to make
annual cash payments in an amount exceeding $5,000; (iii) a schedule listing
all officers of Voyager who have executed a non-competition agreement with
Voyager and a copy of each such agreement currently in effect; (iv) copies
(or descriptions) of all severance agreements, programs and policies of
Voyager with or relating to its employees, except programs and policies
required to be maintained by law; and (v) copies of all plans, programs,
agreements and other arrangements of the Voyager with or relating to its
employees which contain change in control provisions.
(e) Except as disclosed in Section 3.11(e) of the Voyager Disclosure
Schedule there shall be no payment, accrual of additional benefits,
acceleration of payments, or vesting in any benefit under any Voyager
Employee Plan or any agreement or arrangement disclosed under this Section
3.11 solely by reason of entering into or in connection with the transactions
contemplated by this Agreement.
(f) There are no controversies pending or, to the knowledge of Voyager
threatened, between Voyager or any of its subsidiaries and any of their
respective employees, which controversies have or could reasonably be
expected to have a Material Adverse Effect on Voyager. Neither Voyager nor
any of its subsidiaries is a party to any collective bargaining agreement or
other labor union contract applicable to persons employed by Voyager or any
of its subsidiaries (and neither Voyager nor any of its subsidiaries has any
outstanding material liability with respect to any terminated collective
bargaining agreement or labor union contract), nor does Voyager know of any
activities or proceedings of any labor union to organize any of its or any of
its subsidiaries' employees. Voyager has no knowledge of any strike,
slowdown, work stoppage, lockout or threat thereof by or with respect to any
of its or any of its subsidiaries' employees.
Section 3.12. Environmental Laws and Regulations.
(a) Except as disclosed by Voyager, (i) each of Voyager and its
subsidiaries is in material compliance with all Environmental Laws, except
for non-compliance that would not have a Material Adverse Effect on Voyager,
which compliance includes, but is not limited to, the possession by Voyager
and its subsidiaries of all material permits and other governmental
authorizations required under applicable Environmental Laws, and compliance
with the terms and conditions thereof; (ii) none of Voyager or its
subsidiaries has received written notice of, or, to the knowledge of Voyager,
is the subject of, any Environmental Claim that could reasonably be expected
to have a Material Adverse Effect on Voyager; and (iii) to the knowledge of
Voyager, there are no circumstances that are reasonably likely to prevent or
interfere with such material compliance in the future.
(b) Except as disclosed by Voyager, there are no Environmental Claims
which could reasonably be expected to have a Material Adverse Effect on
Voyager that are pending or, to the knowledge of Voyager, threatened against
Voyager or any of its subsidiaries or, to the knowledge of Voyager, against
any person or entity whose liability for any Environmental Claim Voyager or
its subsidiaries has or may have retained or assumed either contractually or
by operation of law.
Section 3.13. Tax Matters. Except as set forth in Section 3.13 of the
Voyager Disclosure Schedule: (i) Voyager and each of its subsidiaries has
filed or has had filed on its behalf in a timely manner (within any
applicable extension periods) with the appropriate Governmental Entity all
income and other material Tax Returns with respect to Taxes of Voyager and
each of its subsidiaries and all Tax Returns were in all material respects
true, complete and correct; (ii) all material Taxes with respect to Voyager
and each of its subsidiaries have been paid in full or have been provided for
in accordance with GAAP on Voyager's most recent balance sheet which is part
of the Voyager SEC Documents; (iii) there are no outstanding agreements or
waivers extending the statutory period of limitations applicable to any
federal, state, local or foreign income or other material Tax Returns
required to be filed by or with respect to Voyager or its subsidiaries; (iv)
to the knowledge of Voyager none of the Tax Returns of or with respect to
Voyager or any of its subsidiaries is currently being audited or examined by
any Governmental Entity; and (v) no deficiency for any income or other
material Taxes has been assessed with respect to Voyager or any of its
subsidiaries which has not been abated or paid in full.
14
Section 3.14. Title to Property. Voyager and each of its subsidiaries
have good and defensible title to all of their properties and assets, free
and clear of all liens, charges and encumbrances except liens for taxes not
yet due and payable and such liens or other imperfections of title, if any,
as do not materially detract from the value of or interfere with the present
use of the property affected thereby or which, individually or in the
aggregate, would not have a Material Adverse Effect on Voyager; and, to
Voyager's knowledge, all leases pursuant to which Voyager or any of its
subsidiaries lease from others real or personal property are in good
standing, valid and effective in accordance with their respective terms, and
there is not, to the knowledge of Voyager, under any of such leases, any
existing material default or event of default (or event which with notice or
lapse of time, or both, would constitute a material default and in respect of
which Voyager or such subsidiary has not taken adequate steps to prevent such
a default from occurring) except where the lack of such good standing,
validity and effectiveness, or the existence of such default or event of
default would not have a Material Adverse Effect on Voyager.
Section 3.15. Intellectual Property.
(a) Each of Voyager and its subsidiaries owns, or possesses adequate
licenses or other valid rights to use, all existing United States and foreign
patents, trademarks, trade names, services marks, copyrights, trade secrets,
and applications therefor that are material to its business as currently
conducted (the "Voyager Intellectual Property Rights").
(b) Except as set forth in Section 3.15(b) of the Voyager Disclosure
Schedule the validity of the Voyager Intellectual Property Rights and the
title thereto of Voyager or any subsidiary, as the case may be, is not being
questioned in any litigation to which Voyager or any subsidiary is a party.
(c) The conduct of the business of Voyager and its subsidiaries as now
conducted does not, to Voyager's knowledge, infringe any valid patents,
trademarks, tradenames, service marks or copyrights of others. The
consummation of the transactions contemplated hereby will not result in the
loss or impairment of any Voyager Intellectual Property Rights.
(d) Each of Voyager and its subsidiaries has taken steps it believes
appropriate to protect and maintain its trade secrets as such, except in
cases where Voyager has elected to rely on patent or copyright protection in
lieu of trade secret protection.
Section 3.16. Insurance. Voyager and its subsidiaries maintain general
liability and other business insurance that Voyager believes to be reasonably
prudent for its business.
Section 3.17. Vote Required. The affirmative vote of the holders of at
least a majority of the outstanding Voyager Shares is the only vote of the
holders of any class or series of Voyager's capital stock necessary to
approve and adopt this Agreement and the Merger.
Section 3.18. Tax Treatment. Neither Voyager nor, to the knowledge of
Voyager, any of its affiliates has taken or agreed to take any action that
would prevent the Merger from constituting a reorganization qualifying under
the provisions of Section 368(a) of the Code.
Section 3.19. Affiliates. Except for the directors and executive
officers of Voyager, each of whom is listed in Section 3.19 of the Voyager
Disclosure Schedule, there are no persons who, to the knowledge of Voyager,
may be deemed to be affiliates of Voyager under Rule 1-02(b) of Regulation
S-X of the SEC (the "Voyager Affiliates").
Section 3.20. Certain Business Practices. None of Voyager, any of its
subsidiaries or any directors, officers, agents or employees of Voyager or
any of its subsidiaries has (i) used any funds for unlawful contributions,
gifts, entertainment or other unlawful expenses relating to political
activity, (ii) made any unlawful payment to foreign or domestic government
officials or employees or to foreign or domestic political parties or
campaigns or violated any provision of the FCPA, or (iii) made any other
unlawful payment.
Section 3.21. Insider Interests. Except as set forth in Section 3.21 of
the Voyager Disclosure Schedule, no officer or director of Voyager has any
interest in any material property, real or personal, tangible or intangible,
including without limitation, any computer software or Voyager Intellectual
Property Rights, used in or pertaining to the business of Voyager or any
subsidiary, except for the ordinary rights of a stockholder or employee stock
optionholder.
15
Section 3.22. Opinion of Financial Adviser. No advisers, as of the date
hereof, have delivered to the Voyager Board a written opinion to the effect
that, as of such date, the exchange ratio contemplated by the Merger is fair
to the holders of Voyager Shares.
Section 3.23. Brokers. No broker, finder or investment banker (other
than the Voyager Financial Adviser, a true and correct copy of whose
engagement agreement has been provided to Dakota) is entitled to any
brokerage, finders or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by
or on behalf of Voyager.
Section 3.24. Disclosure. No representation or warranty of Voyager in
this Agreement or any certificate, schedule, document or other instrument
furnished or to be furnished to Dakota pursuant hereto or in connection
herewith contains, as of the date of such representation, warranty or
instrument, or will contain any untrue statement of a material fact or, at
the date thereof, omits or will omit to state a material fact necessary to
make any statement herein or therein, in light of the circumstances under
which such statement is or will be made, not misleading.
Section 3.25. No Existing Discussions. As of the date hereof, Voyager is
not engaged, directly or indirectly, in any discussions or negotiations with
any other party with respect to any Third Party Acquisition (as defined in
Section 5.4).
Section 3.26. Material Contracts.
(a) Voyager has delivered or otherwise made available to Dakota true,
correct and complete copies of all contracts and agreements (and all
amendments, modifications and supplements thereto and all side letters to
which Voyager is a party affecting the obligations of any party thereunder)
to which Voyager or any of its subsidiaries is a party or by which any of
their properties or assets are bound that are, material to the business,
properties or assets of Voyager and its subsidiaries taken as a whole,
including, without limitation, to the extent any of the following are,
individually or in the aggregate, material to the business, properties or
assets of Voyager and its subsidiaries taken as a whole, all: (i) employment,
product design or development, personal services, consulting,
non-competition, severance, golden parachute or indemnification contracts
(including, without limitation, any contract to which Voyager is a party
involving employees of Voyager); (ii) licensing, publishing, merchandising or
distribution agreements; (iii) contracts granting rights of first refusal or
first negotiation; (iv) partnership or joint venture agreements; (v)
agreements for the acquisition, sale or lease of material properties or
assets or stock or otherwise. (vi) contracts or agreements with any
Governmental Entity; and (vii) all commitments and agreements to enter into
any of the foregoing (collectively, together with any such contracts entered
into in accordance with Section 5.2 hereof, the `Voyager Contracts"). Neither
Voyager nor any of its subsidiaries is a party to or bound by any severance,
golden parachute or other agreement with any employee or consultant pursuant
to which such person would be entitled to receive any additional compensation
or an accelerated payment of compensation as a result of the consummation of
the transactions contemplated hereby.
(b) Each of the Voyager Contracts is valid and enforceable in accordance
with its terms, and there is no default under any Voyager Contract so listed
either by Voyager or, to the knowledge of Voyager, by any other party
thereto, and no event has occurred that with the lapse of time or the giving
of notice or both would constitute a default thereunder by Voyager or, to the
knowledge of Voyager, any other party, in any such case in which such default
or event could reasonably be expected to have a Material Adverse Effect on
Voyager.
(c) No party to any such Voyager Contract has given notice to Voyager of
or made a claim against Voyager with respect to any breach or default
thereunder, in any such case in which such breach or default could reasonably
be expected to have a Material Adverse Effect on Voyager.
16
ARTICLE 4
Covenants
Section 4.1. Conduct of Business of Dakota. Except as contemplated by
this Agreement or as described in Section 4.1 of the Dakota Disclosure
Schedule, during the period from the date hereof to the Effective Time,
Dakota will conduct its operations in the ordinary course of business
consistent with past practice and, to the extent consistent therewith, with
no less diligence and effort than would be applied in the absence of this
Agreement, seek to preserve intact its current business organization, keep
available the service of its current officers and employees and preserve its
relationships with customers, suppliers and others having business dealings
with it to the end that goodwill and ongoing businesses shall be unimpaired
at the Effective Time. Without limiting the generality of the foregoing,
except as otherwise expressly provided in this Agreement or as described in
Section 4.1 of the Dakota Disclosure Schedule, prior to the Effective Time,
Dakota will not, without the prior written consent of Voyager:
(a) amend its Certificate of Incorporation or Bylaws (or other similar
governing instrument);
(b) amend the terms of any stock of any class or any other securities
(except bank loans) or equity equivalents.
(c) split, combine or reclassify any shares of its capital stock,
declare, set aside or pay any dividend or other distribution (whether in
cash, stock or property or any combination thereof) in respect of its capital
stock, make any other actual, constructive or deemed distribution in respect
of its capital stock or otherwise make any payments to stockholders in their
capacity as such, or redeem or otherwise acquire any of its securities;
(d) adopt a plan of complete or partial liquidation, dissolution,
merger, consolidation, restructuring, recapitalization or other
reorganization of Dakota (other than the Merger);
(e) (i) incur or assume any long-term or short-term debt or issue any
debt securities except for borrowings or issuances of letters of credit under
existing lines of credit in the ordinary course of business; (ii) assume,
guarantee, endorse or otherwise become liable or responsible (whether
directly, contingently or otherwise) for the obligations of any other person.
(iii) make any loans, advances or capital contributions to, or investments
in, any other person; (iv) pledge or otherwise encumber shares of capital
stock of Dakota; or (v) mortgage or pledge any of its material assets,
tangible or intangible, or create or suffer to exist any material Lien
thereupon (other than tax Liens for taxes not yet due);
(f) except as may be required by law, enter into, adopt or amend or
terminate any bonus, profit sharing, compensation, severance, termination,
stock option, stock appreciation right, restricted stock, performance unit,
stock equivalent, stock purchase agreement, pension, retirement, deferred
compensation, employment, severance or other employee benefit agreement,
trust, plan, fund or other arrangement for the benefit or welfare of any
director, officer or employee in any manner, or increase in any manner the
compensation or fringe benefits of any director, officer or employee or pay
any benefit not required by any plan and arrangement as in effect as of the
date hereof (including, without limitation, the granting of stock
appreciation rights or performance units); provided, however, that this
paragraph (f) shall not prevent Dakota from (i) entering into employment
agreements or severance agreements with employees in the ordinary course of
business and consistent with past practice or (ii) increasing annual
compensation and/or providing for or amending bonus arrangements for
employees for fiscal 1999 in the ordinary course of year-end compensation
reviews consistent with past practice and paying bonuses to employees for
fiscal 1999 in amounts previously disclosed to Voyager (to the extent that
such compensation increases and new or amended bonus arrangements do not
result in a material increase in benefits or compensation expense to Dakota);
(g) acquire, sell, lease or dispose of any assets in any single
transaction or series of related transactions (other than in the ordinary
course of business);
(h) except as may be required as a result of a change in law or in
generally accepted accounting principles, change any of the accounting
principles or practices used by it;
17
(i) revalue in any material respect any of its assets including, without
limitation, writing down the value of inventory or writing-off notes or
accounts receivable other than in the ordinary course of business;
(j) (i) acquire (by merger, consolidation, or acquisition of stock or
assets) any corporation, partnership or other business organization or
division thereof or any equity interest therein; (ii) enter into any contract
or agreement other than in the ordinary course of business consistent with
past practice which would be material to Dakota; (iii) authorize any new
capital expenditure or expenditures which, individually is in excess of
$1,000 or, in the aggregate, are in excess of $5,000; provided, however that
none of the foregoing shall limit any capital expenditure required pursuant
to existing contracts;
(k) make any tax election or settle or compromise any income tax
liability material to Dakota;
(l) settle or compromise any pending or threatened suit, action or claim
which (i) relates to the transactions contemplated hereby or (ii) the
settlement or compromise of which could have a Material Adverse Effect on
Dakota;
(m) commence any material research and development project or terminate
any material research and development project that is currently ongoing, in
either case, except pursuant to the terms of existing contracts or in the
ordinary course of business; or
(n) take, or agree in writing or otherwise to take, any of the actions
described in Sections 4.1(a) through 4.1(m) or any action which would make
any of the representations or warranties of contained in this Agreement
untrue or incorrect.
Section 4.2. Conduct of Business of Voyager. Except as contemplated by
this Agreement or as described in Section 4.2 of the Voyager Disclosure
Schedule during the period from the date hereof to the Effective Time,
Voyager will conduct its operations in the ordinary course of business
consistent with past practice and, to the extent consistent therewith, with
no less diligence and effort than would be applied in the absence of this
Agreement, seek to preserve intact its current business organization, keep
available the service of its current officers and employees and preserve its
relationships with customers, suppliers and others having business dealings
with it to the end that goodwill and ongoing businesses shall be unimpaired
at the Effective Time. Without limiting the generality of the foregoing,
except as otherwise expressly provided in this Agreement or as described in
Section 4.2 of the Voyager Disclosure Schedule, prior to the Effective Time,
Voyager will not, without the prior written consent of:
(a) amend its Certificate of Incorporation or Bylaws (or other similar
governing instrument);
(b) authorize for issuance, issue, sell, deliver or agree or commit to
issue, sell or deliver (whether through the issuance or granting of options,
warrants, commitments, subscriptions, rights to purchase or otherwise) any
stock of any class or any other securities (except bank loans) or equity
equivalents (including, without limitation, any stock options or stock
appreciation rights;
(c) split, combine or reclassify any shares of its capital stock,
declare, set aside or pay any dividend or other distribution (whether in
cash, stock or property or any combination thereof) in respect of its capital
stock, make any other actual, constructive or deemed distribution in respect
of its capital stock or otherwise make any payments to stockholders in their
capacity as such, or redeem or otherwise acquire any of its securities;
(d) adopt a plan of complete or partial liquidation, dissolution, merger
consolidation, restructuring, re-capitalization or other reorganization of
Voyager (other than the Merger);
(e) (i) incur or assume any long-term or short-term debt or issue any
debt securities except for borrowings or issuances of letters of credit under
existing lines of credit in the ordinary course of business. (ii) assume,
guarantee, endorse or otherwise become liable or responsible (whether
directly, contingently or otherwise) for the obligations of any other person;
(iii) make any loans, advances or capital contributions to or investments in,
any other person; (iv) pledge or otherwise encumber shares of capital stock
of Voyager or its subsidiaries; or (v) mortgage or pledge any of its material
assets, tangible or intangible, or create or suffer to exist any material
Lien thereupon (other than tax Liens for taxes not yet due);
18
(f) except as may be required by law, enter into, adopt or amend or
terminate any bonus, profit sharing, compensation, severance, termination,
stock option, stock appreciation right, restricted stock, performance unit
stock equivalent, stock purchase agreement, pension, retirement, deferred
compensation, employment, severance or other employee benefit agreement,
trust, plan, fund or other arrangement for the benefit or welfare of any
director, officer or employee in any manner, or increase in any manner the
compensation or fringe benefits of any director, officer or employee or pay
any benefit not required by any plan and arrangement as in effect as of the
date hereof (including, without limitation, the granting of stock
appreciation rights or performance units); provided, however, that this
paragraph (f) shall not prevent Voyager or its subsidiaries from (i) entering
into employment agreements or severance agreements with employees in the
ordinary course of business and consistent with past practice or (ii)
increasing annual compensation and/or providing for or amending bonus
arrangements for employees for fiscal 2002 in the ordinary course of yearend
compensation reviews consistent with past practice and paying bonuses to
employees for fiscal 2002 in amounts previously disclosed to (to the extent
that such compensation increases and new or amended bonus arrangements do not
result in a material increase in benefits or compensation expense to
Voyager);
(g) acquire, sell, lease or dispose of any assets in any single
transaction or series of related transactions other than in the ordinary
course of business;
(h) except as may be required as a result of a change in law or in
generally accepted accounting principles, change any of the accounting
principles or practices used by it;
(i) revalue in any material respect any of its assets, including,
without limitation, writing down the value of inventory of writing-off notes
or accounts receivable other than in the ordinary course of business;
(j) (i) acquire (by merger, consolidation, or acquisition of stock or
assets) any corporation, partnership, or other business organization or
division thereof or any equity interest therein; (ii) enter into any contract
or agreement other than in the ordinary course of business consistent with
past practice which would be material to Voyager; (iii) authorize any new
capital expenditure or expenditures which, individually, is in excess of
$1,000 or, in the aggregate, are in excess of $5,000: provided, however that
none of the foregoing shall limit any capital expenditure required pursuant
to existing contracts;
(k) make any tax election or settle or compromise any income tax
liability material to Voyager and its subsidiaries taken as a whole;
(l) settle or compromise any pending or threatened suit, action or claim
which (i) relates to the transactions contemplated hereby or (ii) the
settlement or compromise of which could have a Material Adverse Effect on
Voyager;
(m) commence any material research and development project or terminate
any material research and development project that is currently ongoing, in
either case, except pursuant to the terms of existing contracts or except in
the ordinary course of business; or
(n) take, or agree in writing or otherwise to take, any of the actions
described in Sections 4.2(a) through 4.2(m) or any action which would make
any of the representations or warranties of the Voyager contained in this
Agreement untrue or incorrect.
Section 4.3. Preparation of 8-K. Voyager shall promptly prepare and file
with the SEC the 8-K Statement, upon completion of the merger.
Section 4.4. Other Potential Acquirers. Voyager, its affiliates and
their respective officers, directors, employees, representatives and agents
shall immediately cease any existing discussions or negotiations, if any,
with any parties conducted heretofore with respect to any Third Party
Acquisition.
19
Section 4.5. Meetings of Voyager and DSC Stockholders. Voyager and DSC
shall take all action necessary, in accordance with NGCL, and their
respective certificate of incorporation and bylaws, to obtain a unanimous
consent of their stockholders for approval of the this Agreement and the
transactions contemplated hereby, or alternatively, duly call, give notice
of, convene and hold a meeting of their stockholders as promptly as
practicable, to consider and vote upon the adoption and approval of this
Agreement and the transactions contemplated hereby. The stockholder votes
required for the adoption and approval of the transactions contemplated by
this Agreement shall be the vote required by the NGCL and each of DSC's and
Voyager's charter and bylaws.
Section 4.6. OTC:BB Listing. The parties shall use all reasonable
efforts to cause the Dakota Common Shares, to continue to be traded on the
Over The Counter Bulletin Board (OTC:BB).
Section 4.7. Access to Information.
(a) Between the date hereof and the Effective Time, Dakota will give
Voyager and its authorized representatives, and Voyager will give Dakota and
its authorized representatives, reasonable access to all employees, plants,
offices, warehouses and other facilities and to all books and records of
itself and its subsidiaries, will permit the other party to make such
inspections as such party may reasonably require and will cause its officers
and those of its subsidiaries to furnish the other party with such financial
and operating data and other information with respect to the business and
properties of itself and its subsidiaries as the other party may from time to
time reasonably request.
(b) Between the date hereof and the Effective Time, Dakota shall furnish
to Voyager, and Voyager will furnish to Dakota, within 25 business days after
the end of each quarter, quarterly statements prepared by such party in
conformity with its past practices) as of the last day of the period then
ended.
(c) Each of the parties hereto will hold and will cause its consultants
and advisers to hold in confidence all documents and information furnished to
it in connection with the transactions contemplated by this Agreement.
Section 4.8. Additional Agreements, Reasonable Efforts. Subject to the
terms and conditions herein provided, each of the parties hereto agrees to
use all reasonable efforts to take, or cause to be taken, all action, and to
do, or cause to be done, all things reasonably necessary, proper or advisable
under applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement, including, without limitation,
(i) cooperating in the preparation and filing of the 8-K, any filings that
may be required under the HSR Act, and any amendments to any thereof; (ii)
obtaining consents of all third parties and Governmental Entities necessary,
proper or advisable for the consummation of the transactions contemplated by
this Agreement; (iii) contesting any legal proceeding relating to the Merger
and (iv) the execution of any additional instruments necessary to consummate
the transactions contemplated hereby. Subject to the terms and conditions of
this Agreement, Voyager and DSC agree to use all reasonable efforts to cause
the Effective Time to occur as soon as practicable after the stockholder
votes with respect to the Merger. In case at any time after the Effective
Time any further action is necessary to carry out the purposes of this
Agreement, the proper officers and directors of each party hereto shall take
all such necessary action.
Section 4.9. Employee Benefits; Stock Option and Employee Purchase
Plans. Subject to the provisions of Section 1.6(d) hereof, prior to the
Effective Time, Dakota will take or cause to be taken all action necessary to
terminate the employment agreements of Dakota. It is the parties' present
intent to provide after the Effective Time to employees of Voyager employee
benefit plans (other than stock option or other plans involving the potential
issuance of securities of Dakota) which, in the aggregate, are not less
favorable than those currently provided by Voyager. Notwithstanding the
foregoing, nothing contained herein shall be construed as requiring the
parties to continue any specific employee benefit plans.
Section 4.10. Public Announcements. Voyager, and Dakota will consult
with one another before issuing any press release or otherwise making any
public statements with respect to the transactions contemplated by this
Agreement, including, without limitation, the Merger, and shall not issue any
such press release or make any such public statement prior to such
consultation, except as may be required by applicable law or by obligations
pursuant to any listing agreement with the NASD Over-the-Counter Bulletin
Board (OTC:BB) as determined by Voyager or Dakota.
20
Section 4.11. Indemnification.
(a) To the extent, if any, not provided by an existing right under one
of the parties' directors and officers liability insurance policies, from and
after the Effective Time, Dakota shall, to the fullest extent permitted by
applicable law, indemnify, defend and hold harmless each person who is now,
or has been at any time prior to the date hereof, or who becomes prior to the
Effective Time, a director, officer or employee of the parties hereto or any
subsidiary thereof (each an "Indemnified Party" and, collectively, the
``Indemnified Parties") against all losses, expenses (including reasonable
attorneys' fees and expenses), claims, damages or liabilities or, subject to
the proviso of the next succeeding sentence, amounts paid in settlement
arising out of actions or omissions occurring at or prior to the Effective
Time and whether asserted or claimed prior to, at or after the Effective
Time) that are in whole or in part (i) based on, or arising out of the fact
that such person is or was a director, officer or employee of such party or a
subsidiary of such party or (ii) based on, arising out of or pertaining to
the transactions contemplated by this Agreement. In the event of any such
loss expense, claim, damage or liability (whether or not arising before the
Effective Time), (i) Dakota shall pay the reasonable fees and expenses of
counsel selected by the Indemnified Parties, which counsel shall be
reasonably satisfactory to Dakota, promptly after statements therefor are
received and otherwise advance to such Indemnified Party upon request
reimbursement of documented expenses reasonably incurred, in either case to
the extent not prohibited by the NGCL or its certificate of incorporation or
bylaws, (ii) Dakota will cooperate in the defense of any such matter and
(iii) any determination required to be made with respect to whether an
Indemnified Party's conduct complies with the standards set forth under the
NGCL and Dakota's certificate of incorporation or bylaws shall be made by
independent counsel mutually acceptable to Dakota and the Indemnified Party;
provided, however, that Dakota shall not be liable for any settlement
effected without its written consent (which consent shall not be unreasonably
withheld). The Indemnified Parties as a group may retain only one law firm
with respect to each related matter except to the extent there is, in the
opinion of counsel to an Indemnified Party, under applicable standards of
professional conduct, conflict on any significant issue between positions of
any two or more Indemnified Parties.
(b) In the event Dakota or any of its successors or assigns (i)
consolidates with or merges into any other person and shall not be the
continuing or surviving corporation or entity or such consolidation or merger
or (ii) transfers all or substantially all of its properties and assets to
any person, then and in either such case, proper provision shall be made so
that the successors and assigns of Dakota shall assume the obligations set
forth in this Section 4.11.
(c) To the fullest extent permitted by law, from and after the Effective
Time, all rights to indemnification now existing in favor of the employees,
agents, directors or officers of Dakota and Voyager and their subsidiaries
with respect to their activities as such prior to the Effective Time, as
provided in Dakota's and Voyager's certificate of incorporation or bylaws, in
effect on the date thereof or otherwise in effect on the date hereof, shall
survive the Merger and shall continue in full force and effect for a period
of not less than six years from the Effective Time.
(d) The provisions of this Section 4.11 are intended to be for the
benefit of, and shall be enforceable by, each Indemnified Party, his or her
heirs and his or her representatives.
Section 4.12. Notification of Certain Matters. The parties hereto shall
give prompt notice to the other parties, of (i) the occurrence or
nonoccurrence of any event the occurrence or nonoccurrence of which would be
likely to cause any representation or warranty contained in this Agreement to
be untrue or inaccurate in any material respect at or prior to the Effective
Time, (ii) any material failure of such party to comply with or satisfy any
covenant, condition or agreement to be complied with or satisfied by it
hereunder, (iii) any notice of, or other communication relating to, a default
or event which, with notice or lapse of time or both, would become a default,
received by such party or any of its subsidiaries subsequent to the date of
this Agreement and prior to the Effective Time, under any contract or
agreement material to the financial condition, properties, businesses or
results of operations of such party and its subsidiaries taken as a whole to
which such party or any of its subsidiaries is a party or is subject, (iv)
any notice or other communication from any third party alleging that the
consent of such third party is or may be required in connection with the
transactions contemplated by this Agreement, or (v) any material adverse
change in their respective financial condition, properties, businesses,
results of operations or prospects taken as a whole, other than changes
resulting from general economic conditions; provided, however, that the
delivery of any notice pursuant to this Section 4.12 shall not cure such
breach or non-compliance or limit or otherwise affect the remedies available
hereunder to the party receiving such notice.
21
Section 4.13. Splits and Registration Statements. From and up to one
(1) year after the Effective Time of the Merger, assuming the transaction
closes, Voyager and Dakota hereby agree not to: (i) split, reverse split,
reclassify or issue a dividend of its common stock; and (ii) file a
registration statement for shares of its common stock pursuant to the 33 Act,
other than for direct cash consideration and/or professional services
(excluding consulting, employee and executive services).
ARTICLE 5
Conditions to Consummation of the Merger
Section 5.1. Conditions to Each Party's Obligations to Effect the
Merger. The respective obligations of each party hereto to effect the Merger
are subject to the satisfaction at or prior to the Effective Time of the
following conditions:
(a) this Agreement shall have been approved and adopted by the requisite
vote of the Stockholders of DSC and Voyager;
(b) this Agreement shall have been approved and adopted by the Board of
Directors of Dakota and Voyager;
(c) no statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or enforced by any
United States court or United States governmental authority which prohibits,
restrains, enjoins or restricts the consummation of the Merger;
(d) any waiting period applicable to the Merger under the HSR Act shall
have terminated or expired, and any other governmental or regulatory notices
or approvals required with respect to the transactions contemplated hereby
shall have been either filed or received; and
Section 5.2. Conditions to the Obligations of Dakota. The obligation of
Dakota to effect the Merger is subject to the satisfaction at or prior to the
Effective Time of the following conditions:
(a) the representations of Voyager contained in this Agreement or in any
other document delivered pursuant hereto shall be true and correct (except to
the extent that the breach thereof would not have a Material Adverse Effect
on Voyager) at and as of the Effective Time with the same effect as if made
at and as of the Effective Time (except to the extent such representations
specifically related to an earlier date, in which case such representations
shall be true and correct as of such earlier date), and at the Closing
Voyager shall have delivered to Dakota a certificate to that effect;
(b) each of the covenants and obligations of Voyager to be performed at
or before the Effective Time pursuant to the terms of this Agreement shall
have been duly performed in all material respects at or before the Effective
Time and at the Closing Voyager shall have delivered to Dakota a certificate
to that effect;
(d) Voyager shall have obtained the consent or approval of each person
whose consent or approval shall be required in order to permit the Merger as
relates to any obligation, right or interest of Voyager under any loan or
credit agreement, note, mortgage, indenture, lease or other agreement or
instrument, except those for which failure to obtain such consents and
approvals would not, in the reasonable opinion of Dakota, individually or in
the aggregate, have a Material Adverse Effect on Voyager;
(e) there shall have been no events, changes or effects with respect to
Voyager or its subsidiaries having or which could reasonably be expected to
have a Material Adverse Effect on Voyager; and
Section 5.3. Conditions to the Obligations of Voyager. The respective
obligations of Voyager to effect the Merger are subject to the satisfaction
at or prior to the Effective Time of the following conditions:
(a) the representations of Dakota contained in this Agreement or in any
other document delivered pursuant hereto shall be true and correct (except to
22
the extent that the breach thereof would not have a Material Adverse Effect
on Dakota) at and as of the Effective Time with the same effect as if made at
and as of the Effective Time (except to the extent such representations
specifically related to an earlier date, in which case such representations
shall be true and correct as of such earlier date), and at the Closing Dakota
shall have delivered to Voyager a certificate to that effect;
(b) each of the covenants and obligations of Dakota to be performed at
or before the Effective Time pursuant to the terms of this Agreement shall
have been duly performed in all material respects at or before the Effective
Time and at the Closing Dakota shall have delivered to Voyager a certificate
to that effect;
(c) Dakota shall have caused the execution of a Property Transfer
Agreement wherein certain assets of Dakota shall be transferred to Xxxxxxxx
Xxxxxxx, and Xxxxx Xxxxxxx, in exchange for Nine Million Four Hundred
Thousand (9,400,000) pre-split shares (47,000,000 post-split) of common stock
held by Xxxxxxxx Xxxxxxx, and Xxxxx Xxxxxxx; and
(d) there shall have been no events, changes or effects with respect to
Dakota having or which could reasonably be expected to have a Material
Adverse Effect on Dakota.
ARTICLE 6
Termination; Amendment; Waiver
Section 6.1. Termination. This Agreement may be terminated and the
Merger may be abandoned at any time prior to the Effective Time, whether
before or after approval and adoption of this Agreement by DSC's or Voyager's
stockholders:
(a) by mutual written consent of Dakota and Voyager;
(b) by Voyager or Dakota if (i) any court of competent jurisdiction in
the United States or other United States Governmental Entity shall have
issued a final order, decree or ruling or taken any other final action
restraining, enjoining or otherwise prohibiting the Merger and such order,
decree, ruling or other action is or shall have become nonappealable or (ii)
the Merger has not been consummated by March 1, 2002; provided, however, that
no party may terminate this Agreement pursuant to this clause (ii) if such
party's failure to fulfill any of its obligations under this Agreement shall
have been the reason that the Effective Time shall not have occurred on or
before said date;
(c) by Dakota if (i) there shall have been a breach of any
representation or warranty on the part of Voyager set forth in this
Agreement, or if any representation or warranty of Voyager shall have become
untrue, in either case such that the conditions set forth in Section 5.2(a)
would be incapable of being satisfied by March 1, 2002 (or as otherwise
extended), (ii) there shall have been a breach by Voyager of any of their
respective covenants or agreements hereunder having a Material Adverse Effect
on Voyager or materially adversely affecting (or materially delaying) the
consummation of the Merger, and Voyager, as the case may be, has not cured
such breach within 20 business days after notice by Dakota thereof, provided
that Dakota has not breached any of its obligations hereunder, or (iii)
Dakota shall have convened a meeting of its Board of Directors to vote upon
the Merger and shall have failed to obtain the requisite vote;
(d) by Voyager if (i) there shall have been a breach of any
representation or warranty on the part of Dakota set forth in this Agreement,
or if any representation or warranty of Dakota shall have become untrue, in
either case such that the conditions set forth in Section 5.3(a) would be
incapable of being satisfied by March 1, 2002 (or as otherwise extended),
(ii) there shall have been a breach by Dakota of its covenants or agreements
hereunder having a Material Adverse Effect on Dakota or materially adversely
affecting (or materially delaying) the consummation of the Merger, and
Dakota, as the case may be, has not cured such breach within twenty business
days after notice by Voyager thereof, provided that Voyager has not breached
any of its obligations hereunder, (iii) the Dakota Board shall have
recommended to Dakota's stockholders a Superior Proposal, (iv) the Dakota
Board shall have withdrawn, modified or changed its approval or
recommendation of this Agreement or the Merger, (v) Voyager shall have
convened a meeting of its stockholders to vote upon the Merger and shall have
failed to obtain the requisite vote of its stockholders or (vi) DSC shall
have convened a meeting of its stockholders to vote upon the Merger and shall
have failed to obtain the requisite vote of its stockholders.
23
Section 6.2. Effect of Termination. In the event of the termination and
abandonment of this Agreement pursuant to Section 6.1, this Agreement shall
forthwith become void and have no effect, without any liability on the part
of any party hereto or its affiliates, directors, officers or stockholders,
other than the provisions of this Section 6.2 and Sections 4.7(c) and 6.3
hereof. Nothing contained in this Section 6.2 shall relieve any party from
liability for any breach of this Agreement.
Section 6.3. Fees and Expenses. Each party shall bear its own expenses
in connection with this Agreement and the transactions contemplated hereby.
Section 6.4. Amendment. This Agreement may be amended by action taken by
Dakota and Voyager at any time before or after approval of the Merger by the
stockholders of DSC and Voyager (if required by applicable law) but, after
any such approval, no amendment shall be made which requires the approval of
such stockholders under applicable law without such approval. This Agreement
may not be amended except by an instrument in writing signed on behalf of the
parties hereto.
Section 6.5. Extension; Waiver. At any time prior to the Effective Time,
each party hereto may (i) extend the time for the performance of any of the
obligations or other acts of any other party, (ii) waive any inaccuracies in
the representations and warranties of any other party contained herein or in
any document, certificate or writing delivered pursuant hereto or (iii) waive
compliance by any other party with any of the agreements or conditions
contained herein. Any agreement on the part of any party hereto to any such
extension or waiver shall be valid only if set forth in an instrument in
writing signed on behalf of such party. The failure of any party hereto to
assert any of its rights hereunder shall not constitute a waiver of such
rights.
ARTICLE 7
Miscellaneous
Section 7.1. Nonsurvival of Representations and Warranties. The
representations and warranties made herein shall not survive beyond the
Effective Time or a termination of this Agreement. This Section 7.1 shall not
limit any covenant or agreement of the parties hereto which by its terms
requires performance after the Effective Time.
Section 7.2. Entire Agreement; Assignment. This Agreement (a)
constitutes the entire agreement between the parties hereto with respect to
the subject matter hereof and supersedes all other prior agreements and
understandings both written and oral, between the parties with respect to the
subject matter hereof and (b) shall not be assigned by operation of law or
otherwise.
Section 7.3. Validity. If any provision of this Agreement, or the
application thereof to any person or circumstance, is held invalid or
unenforceable, the remainder of this Agreement, and the application of such
provision to other persons or circumstances, shall not be affected thereby,
and to such end, the provisions of this Agreement are agreed to be severable.
Section 7.4. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by
facsimile or by registered or certified mail (postage prepaid, return receipt
requested), to each other party as follows:
If to Voyager:
Voyager Ventures, Inc.
Xxxxx Xxxxxxxx
0000 Xxxx Xxxx Xxxxxx
Xxx Xxxxx, XX 00000
24
if to Dakota:
Dakota Imaging, Inc.
Xxxxxxxx Xxxxxxx
President
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxx Xxxxxx
with a copy to:
The Xxxxxxxxxx Law Group
Xxxxxx X. Xxxxxxxxxx, Esq.
Suite 400
000 Xxxx Xxxxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
Section 7.5. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Nevada, without regard
to the principles of conflicts of law thereof.
Section 7.6. Descriptive Headings. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of
or to affect the meaning or interpretation of this Agreement.
Section 7.7. Parties in Interest. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto and its successors and
permitted assigns, and except as provided in Sections 4.9 and 4.11, nothing
in this Agreement, express or implied, is intended to or shall confer upon
any other person any rights, benefits or remedies of any nature whatsoever
under or by reason of this Agreement.
Section 7.8. Certain Definitions. For the purposes of this Agreement,
the term:
(a) "affiliate" means (except as otherwise provided in Sections 2.19,
3.19 and 4.13) a person that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with,
the first mentioned person;
(b) "business day" means any day other than a day on which Nasdaq is
closed;
(c) "capital stock" means common stock, preferred stock, partnership
interests, limited liability company interests or other ownership interests
entitling the holder thereof to vote with respect to matters involving the
issuer thereof;
(d) "knowledge'' or "known'' means, with respect to any matter in
question, if an executive officer of Dakota or Voyager or its subsidiaries,
as the case may be, has actual knowledge of such matter;
(e) "person" means an individual, corporation, partnership, limited
liability company, association, trust, unincorporated organization or other
legal entity; and
(f) "subsidiary" or "subsidiaries" of Dakota, Voyager or any other
person, means any corporation, partnership, limited liability company,
association, trust, unincorporated association or other legal entity of which
Dakota, Voyager or any such other person, as the case may be (either alone or
through or together with any other subsidiary), owns, directly or indirectly,
50% or more of the capital stock, the holders of which are generally entitled
to vote for the election of the board of directors or other governing body of
such corporation or other legal entity.
25
Section 7.9. Personal Liability. This Agreement shall not create or be
deemed to create or permit any personal liability or obligation on the part
of any direct or indirect stockholder of Dakota, Voyager or any officer,
director, employee, agent, representative or investor of any party hereto.
Section 7.10. Specific Performance. The parties hereby acknowledge and
agree that the failure of any party to perform its agreements and covenants
hereunder, including its failure to take all actions as are necessary on its
part to the consummation of the Merger, will cause irreparable injury to the
other parties for which damages, even if available, will not be an adequate
remedy. Accordingly, each party hereby consents to the issuance of injunctive
relief by any court of competent jurisdiction to compel performance of such
party's obligations and to the granting by any court of the remedy of
specific performance of its obligations hereunder; provided, however, that,
if a party hereto is entitled to receive any payment or reimbursement of
expenses pursuant to Sections 6.3(a), (b) or (c), it shall not be entitled to
specific performance to compel the consummation of the Merger.
Section 7.11. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all
of which shall constitute one and the same agreement.
In Witness Whereof, each of the parties has caused this Agreement to be duly
executed on its behalf as of the day and year first above written.
VOYAGER VENTURES, INC.
By:/s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: President
DAKOTA IMAGING, INC.
By:/s/ Xxxxxxxx Xxxxxxx
Name: Xxxxxxxx Xxxxxxx
Title: President
DAKOTA SUBSIDIARY CORP.
By:/s/ Xxxx X. Dhoneau
Name: Xxxx X. Dhoneau
Title: President
26
DAKOTA DISCLOSURE SCHEDULE
Schedule 2.1 Organization See Amended
Articles/Bylaws/Minutes
Schedule 2.6 Consents & Approvals
None Required
Schedule 2.7 No Default
Not Applicable
Schedule 2.8 No Undisclosed Liability
None Exist
Schedule 2.9 Litigation None Exist
Schedule 2.10 Compliance with Applicable
Law Not Applicable - full
disclosed in 10KSB
Schedule 2.11 Employee Benefit Plans Section 2.11(a)
Not Applicable - None Exist
Section 2.11(b)
No Benefit Plan Exist
Section 2.11(c)
No Options Exist
Section 2.11(d)
No Agreements Exist
Schedule 2.12 Environmental Laws and Regs Not Applicable
Schedule 2.13 Tax Matters None Exist
Schedule 2.14 Title to Property None Exist
Schedule 2.15 Intellectual Property None Exist
Schedule 2.16 Insurance None Exist
Schedule 2.17 Vote Required See Board
Resolution
Schedule 2.18 Tax Treatment Not Applicable
Schedule 2.19 Affiliates Xxxxxxxx Xxxxxxx
Xxxxx Xxxxxxx
Xxxxxxx Xxxxxx
Schedule 2.20 Certain Business Practices None Exist
Schedule 2.21 Insider Interest None Exist
Schedule 2.22 Opinion of Financial Adviser Waived - None Exist
Schedule 2.23 Broker None Exist
Schedule 4.1 Conduct of Business See Amended & Restated Articles
27
VOYAGER DISCLOSURE SCHEDULE
Schedule 3.2(b) Subsidiary Stock None Exist
Schedule 3.2(c) Capital Stock Rights None Exist other than as in
Articles
Schedule 3.2(d) Securities conversions None Exist
Schedule 3.2 (f) Subsidiaries None Exist
Schedule 3.6 Consents & Approvals None Required
Schedule 3.7 No Default Not Applicable
Schedule 3.8 No Undisclosed Liability None Exist
Schedule 3.9 Litigation None Exist
Schedule 3.10 Compliance with Applicable Law Not Applicable
Schedule 3.11 Employee Benefit Plans Section 3.11(c)
No Options Exist
Section 3.11(e)
No Agreements Exist
Schedule 3.12 Environmental Laws and Regs Not Applicable
Schedule 3.13 Tax Matters None Exist
Schedule 3.14 Title to Property None Exist
Schedule 3.15(b) Intellectual Property See Voyager Package
Schedule 3.16 Insurance None Exist
Schedule 3.17 Vote Required See Shareholder & Board
Meeting Certificate &
Schedule 3.18 Tax Treatment Not Applicable
Schedule 3.19 Affiliates Xxxxxxx Xxxxxxxx
Xxxxx Xxxxxxxx
Xxxxxx Xxxxxxx
The Rainbird Trust (Xxxxxxx
Xxxxx)
Schedule 3.20 Certain Business Practices None Exist
Schedule 3.21 Insider Interest None Exist
Schedule 3.22 Opinion of Financial Adviser Waived - None Exist
Schedule 2.23 Broker None Exist
Schedule 4.2 Conduct of Business See Amended & Restated Articles
28
