EXHIBIT 10.16
August 23, 2005
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AGREEMENT
by and among
NAVIDEC FINANCIAL SERVICES, INC.,
CHOPIN DEVELOPPEMENT INTERNATIONAL,
and
▇▇. ▇▇▇▇-▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Dated as of August 23, 2005
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AGREEMENT
This AGREEMENT (the "Agreement") is entered into this 23rd day of August,
2005 by and among Chopin Developpement International, a French Societe par
Actions Simplifiee ("CDI"), ▇▇▇▇-▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, a French national residing
at ▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ("▇▇▇"), and Navidec Financial
Services, Inc., a Colorado corporation ("NFS"). The Exhibits attached to, and
referenced in, this Agreement shall be deemed incorporated herein.
RECITALS
WHEREAS, NFS, through its Business Development Division, is in the business
of acquiring controlling interests in development stage companies in order to
further their growth by assisting them in raising capital, developing business
plans, and providing accounting and legal personnel and other services; and
WHEREAS, JCC is the Chief Executive Officer, President and sole shareholder
of CDI and in such capacity has been implementing the businesses of CDI as
described below;
WHEREAS, CDI, directly and through it Subsidiaries, has developed an
electronic wallet transaction platform (the "Electronic Wallet") used to conduct
transactions over the internet utilizing electronic money that is presently
being utilized for completing Pan European e-commerce transactions; and
WHEREAS, the parties desire to form a U.S. corporation ("USCO") for the
purpose of co-developing and further enhancing the Electronic Wallet and to
create a worldwide rollout of the Electronic Wallet (the "Business"), on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
promises hereinafter set forth, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Defined Terms. As used herein, the terms below shall have the
following meanings:
"Agreement" shall have the meaning set forth in the preamble of this
Agreement.
"Assets" shall have the meaning set forth in Section 2.3.
"Business" shall have the meaning set forth in the recitals of this
Agreement.
"CDI" shall have the meaning set forth in the preamble of this Agreement.
"Closing" shall have the meaning set forth in Section 3.1.
"Closing Date" shall have the meaning set forth in Section 3.1.
"Confidential Information" shall have the meaning set forth in Section
5.6(2).
"Disclosing Party" shall have the meaning set forth in Section 5.6(2)
"Due Diligence Information" shall have the meaning set forth in Section
5.6(1).
"EU" shall have the meaning set forth in Section 4.1(6).
"Electronic Wallet" shall have the meaning set forth in the recitals.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and the regulations promulgated thereunder.
"Financial Statements" shall have the meaning set forth in Section 4.1(14).
"Intellectual Property" shall mean means all of the following in any
jurisdiction throughout the world: (i) patents, patent applications and patent
disclosures, (ii) trademarks, service marks, trade dress, trade names, corporate
names, logos and Internet domain names, together with all goodwill associated
with each of the foregoing, (iii) copyrights, software and copyrightable works,
(iv) registrations and applications for any of the foregoing, (v) trade secrets,
confidential information and inventions and (vi) rights under any license
agreements for any of the foregoing.
"JCC" shall have the meaning set forth in the preamble of this Agreement.
"JCC Shares" shall have the meaning set forth in Section 2.2.
"Knowledge" shall mean the actual knowledge of the officers or directors of
CDI or NFS or the actual knowledge of JCC.
"NFS" shall have the meaning set forth in the preamble of this Agreement.
"NFS Non-Voting Shares" shall have the meaning set forth in Section 2.2.
"NFS Shares" shall have the meaning set forth in Section 2.2.
"Nasdaq Market" shall have the meaning set forth in Section 6.1(2).
"Non-Voting Stock" shall have the meaning set forth in Section 2.1.
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"Parties" shall mean NFS, CDI and JCC.
"Person" shall mean an individual, a corporation, a partnership, an
association, a trust or other entity or organization, including a government or
political subdivision or an agency or instrumentality thereof.
"Pre-Closing Period" shall have the meaning set forth in Section 2.1.
"Preferred Offering" shall have the meaning set forth in Section 2.4.
"Receiving Party" shall have the meaning set forth in Section 5.6(2)
"Registration Statement" shall have the meaning set forth in Section 6.1.
"Registered Securities" shall have the meaning set forth in Section 6.1(1).
"Representative" shall have the meaning set forth in Section 5.6(2)
"SEC" shall mean the U.S. Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended, and the
regulations promulgated thereunder.
"Subsidiary" means any corporation or other organization, whether
incorporated or unincorporated, in which NFS or CDI owns, directly or
indirectly, any equity or other ownership interest.
"USCO" shall have the meaning set forth in the recitals of this Agreement.
"USCO Articles" shall have the meaning set forth in Section 2.1.
"USD" shall mean U.S. Dollars.
"Voting Stock" shall have the meaning set forth in Section 2.1.
ARTICLE II
DESCRIPTION OF TRANSACTION
Section 2.1 Formation of USCO. NFS shall form a U.S. corporation to be
named "Bank4" if permissible under U.S. banking laws and formed under the laws
of the State of Colorado as soon as possible following the execution of this
Agreement and prior to the Closing Date (the "Pre-Closing Period"). The Articles
of Incorporation of USCO (the "USCO Articles") shall provide for two classes of
common stock consisting of one class of non-voting common stock at a par value
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of $.001 per share (the "Non-Voting Stock") and one class of voting common stock
at a par value of $.001 per share (the "Voting Stock"). The USCO Articles shall
contain such other provisions as are customary and shall be in a form reasonably
satisfactory to the parties.
Section 2.2 Distribution of Shares. In consideration of the contributions
of CDI and JCC set forth in Section 2.3, upon formation of USCO JCC shall
receive 10,000,000 shares of Voting Stock representing 50% of the voting power
of USCO and at Closing JCC shall receive 16,000,000 shares of Non-Voting Stock
representing the right to receive 70.00% of any revenue distribution made by
USCO (collectively, the "JCC Shares"). In consideration of the contributions of
NFS set forth in Section 2.4, upon formation of USCO NFS shall receive
10,000,000 shares of Voting Stock representing 50% of the voting power of USCO
and at Closing NFS shall receive 6,500,000 shares of Non-Voting Stock (the "NFS
Non-Voting Shares") representing the right to receive 30.00% of any revenue
distribution made by USCO (collectively, the "NFS Shares"). Following the
Closing, USCO will have 20,000,000 shares of Voting Stock issued and outstanding
and 22,500,000 shares of Non-Voting Stock issued and outstanding. The NFS
Non-Voting Stock is subject to cancellation pursuant to Section 2.5.
Section 2.3. Contributions of CDI and JCC. Upon execution of this
Agreement, JCC and/or CDI shall contribute $4,000 to be used for expenses
related to the formation of USCO. Such funds shall be held by NFS in a separate
account until USCO is formed and its bank accounts have been established. At
Closing, JCC, at his sole expense, shall contribute to USCO all of the issued
and outstanding shares of CDI and at the time of Closing CDI shall own, directly
or indirectly, all of the assets listed on Schedule 2.3 (the "Assets") which
shall include all of the assets of CDI and any of its Subsidiaries related to
the Electronic Wallet. The Assets shall have a stated value of Fifty Million USD
($50,000,000) which will be determined by the Chief Executive Officer of NFS and
approved by the NFS Board of Directors prior to the contributions made by NFS
under Section 2.4. Additionally, CDI shall contribute the man power and
technological know-how necessary to complete the development of the Business and
assist NFS in raising the required capital as set forth in Section 2.4 using
commercially reasonable efforts.
Section 2.4 Contributions of NFS. Upon execution of this Agreement, NFS
shall contribute $1,000 to be used for expenses related to the formation of
USCO. Such funds shall be held by NFS in a separate account until USCO is formed
and its bank accounts have been established. Following the execution of this
Agreement, NFS shall use commercially reasonable efforts to conduct a private or
public offering of shares of NFS preferred stock (the "Preferred Offering") to
raise $5,000,000 gross proceeds. NFS shall contribute the net proceeds of the
Preferred Offering to USCO. The terms of the Preferred Offering shall include a
one-time right at the option of the preferred shareholder to convert the NFS
preferred shares purchased in the Preferred Offering into either shares of NFS
common stock or USCO common stock At least $2,500,000 of the gross proceeds from
the Preferred Offering shall come from investors identified by CDI and/or JCC.
Section 2.5 Cancellation Provision. The number of NFS Non-Voting Shares
shall be subject to cancellation by USCO as follows:
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(1) If on or before November 30, 2005, or 30 days after the
completion of an offering document jointly prepared by CDI and NFS, whichever is
later, the Closing of this Agreement has not occurred, then no NFS Non-Voting
Shares shall be due and the Letter of Intent dated as of July 19, 2005 between
NFS and CDI shall be terminated;
(2) If on or before March 31, 2006 or 15 days after a Registration
Statement is declared effective by the SEC, whichever is later, a public
offering of its shares of common stock not been completed at a price that
results in gross proceeds to USCO of an aggregate value of at least Five Million
USD ($5,000,000), and the market valuation of USCO after completion of the
public offering is not at least One Hundred Million USD ($100,000,000), then One
Million (1,000,000) NFS Non-Voting Shares shall be canceled; provided, however,
in the event the Closing Date is extended beyond November 30, 2005 then the date
in this Section 2.5(2) shall be extended for an equal number of days; and
(3) If on or before September 30, 2006, USCO's market valuation (as
determined by the number of shares of USCO outstanding multiplied by the current
market price of such shares) does not meet or exceed One Hundred Fifty Million
USD ($150,000,000), then Five Hundred Thousand (500,000) NFS Non-Voting Shares
shall be canceled.
provided that in the event cancellation is not possible, then NFS agrees to
transfer the equivalent value in shares to CDI as may be required under this
Section 2.5
ARTICLE III
CLOSING AND DELIVERY
Section 3.1 Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at 10:00 a.m. local time on the 30th
day of November 2005, at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP,
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other time or
place as CDI and NFS may mutually agree (such date is hereinafter referred to as
the "Closing Date").
Section 3.2 Conditions to Obligations of NFS. The obligation of NFS to
consummate the transactions contemplated hereby is subject to the satisfaction
on or prior to the Closing Date, of each of the following conditions, any of
which may be waived (in whole or in part) by NFS in accordance with Section 8.3:
(1) Litigation. There shall not be any judgment, decree, injunction,
order or ruling in effect preventing the consummation of the transactions
contemplated by this Agreement.
(2) Covenants and Representations. CDI shall have performed in all
material respects all agreements and covenants required hereby to be performed
by CDI prior to or at the Closing Date, and the representations and warranties
of CDI made in Section 4.1 shall be true and correct in all material respects as
of the Closing Date as if made on such date.
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(3) Covenants and Representations. JCC shall have performed in all
material respects all agreements and covenants required hereby to be performed
by JCC prior to or at the Closing Date, and the representations and warranties
of JCC made in Section 4.3 shall be true and correct in all material respects as
of the Closing Date as if made on such date.
(4) Governmental Filings. All governmental filings, authorizations
and approvals that are required for the transfer of the Assets to USCO shall
have been made and obtained on terms reasonably satisfactory to NFS.
(5) Approvals. The transactions contemplated hereby shall have been
approved by (i) the Board of Directors or similar governing body of CDI, (ii)
the Board of Directors of NFS, and (iii) ▇▇. ▇▇▇▇-▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as the sole
stockholder of CDI.
(6) Closing Agreement. CDI and JCC shall have delivered and
performed their obligations under the Closing Agreement.
(7) USCO Stock Certificates. NFS shall have caused USCO to have
delivered to NFS certificates representing the NFS Shares to be issued to NFS
under Section 2.2.
(8) Due Diligence Investigation. The obligation of NFS to perform
under this Agreement at Closing is subject to its complete satisfaction in its
sole discretion:
(a) of the results of its investigation and review of the
business, operations, assets, liabilities, cash flow, condition (legal,
financial and otherwise) and other matters relating to CDI and the Assets; and
(b) if NFS determines that it is not satisfied with its
investigation and review, then NFS shall issue a notice to CDI and JCC,
delivered in accordance with the notice provisions of this Agreement, prior to
the Closing. If NFS fails to exercise its rights set forth in this Section
3.2(8) and does not issue the notice referred to herein, then NFS` right to
terminate its obligations under this Agreement under this Section 3.2(8) shall
be deemed waived.
(9) Delivery of Financial Statements. CDI shall have provided to NFS
(i) audited financial statements for the years ended December 31, 2002, December
31, 2003 and December 31, 2004 and (ii) unaudited financial statements for the
six month periods ended June 30, 2005 and June 30, 2004, and such other
financial statements as may be required by the SEC in order for the Registration
Statement contemplated in Section 6.1 to be declared effective and in each
instance prepared in accordance with generally accepted accounting principles in
the United States and certified by management of CDI.
(10) Third-Party Consents. On or before the Closing Date, all
material consents or approvals by any third party, if any, which are required to
be obtained by CDI in connection with the execution, delivery or performance of
this Agreement or the consummation of the transactions contemplated herein shall
have been obtained.
(11) Execution of Business Consulting Agreement. On the Closing
Date, NFS and CDI shall enter into a Business Consulting Agreement, essentially
in the form attached hereto as Exhibit A, whereby NFS will provide certain
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consulting and services to USCO for a fee of (i) $10,000 per month for the
period from the date of the execution of this Agreement through the date on
which the Registration Statement (as defined in Section 6.1) has become
effective, and (ii) $30,000 per month for the period of twelve (12) months from
the date that the Registered Securities (as defined in Section 6.1) are listed
for trading pursuant to Section 6.1.
(12) Non-Competition and Non-Solicitation Agreements. CDI shall have
executed the non-competition and non-solicitation agreement, essentially in the
form attached hereto as Exhibit B.
(13) No Contracts Terminated. None of the contracts listed on
Schedule 2.3 shall have been terminated prior to the Closing Date.
(14) No Damage to Assets. At the Closing Date the machinery,
equipment, inventory, or other tangible property of CDI, including any
Subsidiaries, shall not have suffered loss or damage on account of fire, flood,
accident, act of war, civil commotion, or any other cause or event beyond the
reasonable power and control of CDI (whether or not similar to the foregoing),
to an extent which substantially affects the value of the properties and assets
of CDI or any of its Subsidiaries. Loss or damage shall be considered to affect
substantially the value of said properties and assets within the meaning of this
subsection if the book value of such properties and assets so lost or damaged
exceeds 5% in book value of all such tangible properties and assets.
(15) No Material Adverse Change. There shall have been no material
adverse change with respect to CDI or its business.
(16) Closing Deliveries. On or prior to the Closing Date, CDI or JCC
shall have delivered to NFS all of the following:
(a) transfer documents related to the assignment of Intellectual
Property, if any, in form reasonably satisfactory to the parties;
(b) a certificate from the President of CDI in a form reasonably
satisfactory to NFS, dated as of the Closing Date, stating that the conditions
specified in Section 3.2(2) have been satisfied;
(c) a certificate from JCC in a form reasonably satisfactory to
NFS, dated as of the Closing Date, stating that the conditions specified in
Section 3.2(3) have been satisfied;
(d) an officer's certificate, having attached thereto (i) a
full, true and correct copy of all resolutions adopted by the Board of Directors
or similar governing body of CDI authorizing the transactions hereby, and
certifying that such resolutions have not been revoked, modified, rescinded, or
amended and are in full force and effect as of the date of the certificate, and
(ii) a full, true and correct copy of all resolutions adopted by the sole
stockholder of CDI authorizing the transactions hereby, and certifying that such
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resolutions have not been revoked, modified, rescinded, or amended and are in
full force and effect as of the date of the certificate; and
(e) such other documents or instruments as NFS or its counsel
may reasonably request to effect the transactions contemplated hereby.
Section 3.3 Conditions to Obligations of CDI. The obligations of CDI to
consummate the transactions contemplated hereby are subject to the satisfaction
on or prior to the Closing Date, of each of the following conditions, any of
which may be waived (in whole or in part) by CDI in accordance with Section 8.3:
(1) Litigation. There shall not be any judgment, decree, injunction,
order or ruling in effect preventing the consummation of the transactions
contemplated by this Agreement.
(2) Covenants and Representations. NFS shall have performed in all
material respects all agreements and covenants required hereby to be performed
by NFS prior to or at the Closing Date, and the representations and warranties
of NFS made in Section 4.2 shall be true and correct in all material respects as
of the Closing Date as if made on such date.
(3) Covenants and Representations. JCC shall have performed in all
material respects all agreements and covenants required hereby to be performed
by JCC prior to or at the Closing Date, and the representations and warranties
of JCC made in Section 4.3 shall be true and correct in all material respects as
of the Closing Date as if made on such date.
(4) Payment of the NFS Funding. NFS shall have delivered to USCO the
cash commitment specified in Section 2.4.
(5) Governmental Filings. All governmental filings, authorizations,
permits and approvals, if any, that are required in connection with the
transactions contemplated herein shall have been made and obtained on terms
reasonably satisfactory to CDI.
(6) Approvals. The transactions contemplated hereby shall have been
approved by (i) the Board of Directors or similar governing body of CDI, (ii)
the Board of Directors of NFS, and (iii) ▇▇. ▇▇▇▇-▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as the sole
stockholder of CDI.
(7) Closing Agreement. NFS shall have entered into and performed its
obligations under the Closing Agreement.
(8) Third-Party Consents. On or before the Closing Date, all
material consents or approvals by any third party, if any, which are required to
be obtained by NFS in connection with the execution, delivery or performance of
this Agreement or the consummation of the transactions contemplated herein shall
have been obtained.
(9) Execution of Business Consulting Agreement. On the Closing Date,
NFS and CDI shall enter into a Business Consulting Agreement, essentially in the
form attached hereto as Exhibit A, whereby NFS will provide certain consulting
and services to USCO for a fee of (i) $10,000 per month for the period from the
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date of the execution of this Agreement through the date on which the
Registration Statement has become effective, and (ii) $30,000 per month for the
period of twelve (12) months from the date that the Registered Securities are
listed for trading pursuant to Section 6.1.
(10) Closing Deliveries. On or prior to the Closing Date, NFS or JCC
shall have delivered to CDI all of the following:
(a) a certificate from the President of NFS in a form reasonably
satisfactory to CDI, dated as of the Closing Date, stating that the conditions
specified in Section 3.3(2) have been satisfied;
(b) a certificate from JCC in a form reasonably satisfactory to
NFS, dated as of the Closing Date, stating that the conditions specified in
Section 3.3(3) have been satisfied;
(c) a secretary's certificate having attached thereto a full,
true and correct copy of all resolutions adopted by the NFS Board of Directors
authorizing the transactions hereby, and certifying that such resolutions have
not been revoked, modified, rescinded, or amended and are in full force and
effect as of the date of the certificate; and
(d) such other documents or instruments as CDI or its counsel
may reasonably request to effect the transactions contemplated hereby.
Section 3.4 Conditions to Obligations of JCC. The obligations of JCC to
consummate the transactions contemplated hereby are subject to the satisfaction
on or prior to the Closing Date, of each of the following conditions, any of
which may be waived (in whole or in part) by JCC in accordance with Section 8.3:
(1) Litigation. There shall not be any judgment, decree, injunction,
order or ruling in effect preventing the consummation of the transactions
contemplated by this Agreement.
(2) Covenants and Representations. CDI shall have performed in all
material respects all agreements and covenants required hereby to be performed
by CDI prior to or at the Closing Date, and the representations and warranties
of CDI made in Section 4.1 shall be true and correct in all material respects as
of the Closing Date as if made on such date.
(3) Covenants and Representations. NFS shall have performed in all
material respects all agreements and covenants required hereby to be performed
by NFS prior to or at the Closing Date, and the representations and warranties
of NFS made in Section 4.2 shall be true and correct in all material respects as
of the Closing Date as if made on such date.
(4) Payment of the NFS Funding. NFS shall have delivered to USCO the
cash commitment specified in Section 2.4.
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(5) Approvals. The transactions contemplated hereby shall have been
approved by (i) the Board of Directors or similar governing body of CDI, (ii)
the Board of Directors of NFS, and (iii) ▇▇. ▇▇▇▇-▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as the sole
stockholder of CDI.
(6) Closing Agreement. NFS and CDI shall have entered into and
performed their obligations under the Closing Agreement.
(7) USCO Stock Certificates. NFS shall have caused USCO to have
delivered to JCC certificates representing the JCC Shares to be issued to JCC
under Section 2.2.
(8) Closing Deliveries. On or prior to the Closing Date, NFS and CDI
shall have delivered to JCC all of the following:
(a) a certificate from the President of NFS in a form reasonably
satisfactory to JCC, dated as of the Closing Date, stating that the conditions
specified in Section 3.4(3) have been satisfied;
(b) a certificate from the President of CDI in a form reasonably
satisfactory to JCC, dated as of the Closing Date, stating that the conditions
specified in Section 3.4(2) have been satisfied;
(c) a secretary's certificate having attached thereto a full,
true and correct copy of all resolutions adopted by the NFS Board of Directors
authorizing the transactions hereby, and certifying that such resolutions have
not been revoked, modified, rescinded, or amended and are in full force and
effect as of the date of the certificate;
(d) an officer's certificate, having attached thereto, a full,
true and correct copy of all resolutions adopted by the Board of Directors or
similar governing body of CDI authorizing the transactions hereby, and
certifying that such resolutions have not been revoked, modified, rescinded, or
amended and are in full force and effect as of the date of the certificate; and
(f) such other documents or instruments as JCC or his counsel
may reasonably request to effect the transactions contemplated hereby.
Section 3.5 Legends on Stock Certificates. The stock certificates to be
delivered to NFS and JCC by USCO representing the shares of Voting Stock and
Non-Voting Stock to be received by NFS and JCC as set forth in Section 2.2 may
bear one or all of the following legends:
(1) "THE SECURITIES REPRESENTED BY THIS STOCK CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT") OR APPLICABLE STATE SECURITIES LAWS ("STATE
ACTS") AND SHALL NOT BE SOLD, PLEDGED, HYPOTHECATED, DONATED, OR
OTHERWISE TRANSFERRED (WHETHER OR NOT FOR CONSIDERATION) BY THE
HOLDER, EXCEPT UPON THE ISSUANCE TO THE COMPANY OF A FAVORABLE
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OPINION OF ITS COUNSEL OR THE SUBMISSION TO THE COMPANY OF SUCH
OTHER EVIDENCE AS MAY BE SATISFACTORY TO COUNSEL FOR THE COMPANY,
TO THE EFFECT THAT ANY SUCH TRANSFER SHALL NOT BE IN VIOLATION OF
THE SECURITIES ACT AND THE STATE ACTS."
(2) Any legend imposed or required by applicable state law or USCO's
Bylaws.
Section 3.6 Other Closing Matters. Each of the parties shall use their
reasonable efforts to take such other actions required hereby to be performed by
it prior to or on the Closing Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Representations and Warranties of CDI. Except as set forth on
the Schedule of Exceptions attached hereto as Schedule 4.1, CDI hereby
represents and warrants to NFS, as of the Closing Date, as follows:
(1) Organization and Standing of CDI. CDI is a Societe par Actions
Simplifiee (corporation) duly organized, validly existing and in good standing
under the laws of France. It has all requisite corporate power and authority to
carry on its business as now being conducted, to enter into this Agreement and
to carry out and perform the terms and provisions of this Agreement. CDI is duly
qualified to do business and is in good standing in each jurisdiction or country
in which the failure to be so qualified would have a material adverse effect on
the condition (financial or otherwise), business, net worth, assets (including
intangible assets), properties or operations of CDI.
(2) Capitalization. All of CDI's authorized and outstanding equity
securities (including securities convertible into equity securities) are
identified on Schedule 4.1 attached hereto. Other than as set forth on Schedule
4.1, there are no outstanding shares of capital stock or any options, warrants
or other preemptive rights, rights of first refusal or similar rights to
purchase equity securities of CDI.
(3) Subsidiaries. Except as set forth on Schedule 4.1, CDI does not
hold a controlling interest in any other entity, and there are no outstanding
shares of capital stock or any options, warrants or other preemptive rights,
rights of first refusal or similar rights to purchase equity securities of any
other entity in which CDI holds a controlling interest.
(4) Due Authorization; Enforceability. The execution, delivery, and
performance of this Agreement shall have been duly authorized by all requisite
corporate action. This Agreement constitutes a valid and binding obligation of
CDI enforceable in accordance with its terms (except as limited by bankruptcy,
insolvency, or other laws affecting the enforcement of creditors' rights). The
execution, delivery and performance of this Agreement will not conflict with any
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provision of the Articles, Bylaws, minutes or share certificates or similar
governing documents of CDI, or of any contract to which CDI is a party or
otherwise bound.
(5) Litigation. There are no legal actions, suits, arbitrations, or
other legal or administrative proceedings pending or threatened against CDI
which would affect it, its properties, assets, or business. CDI is not aware of
any facts which, to its Knowledge, might result in any action, suit,
arbitration, or other proceeding which, in turn, might result in a material
adverse change in the business or condition (financial or otherwise), properties
or assets of CDI. CDI is not in default with respect to any judgment, order, or
decree of any court, government agency or instrumentality.
(6) Compliance With the Law and Other Instruments. To the best of
CDI's Knowledge, the business operations of CDI have been and are being
conducted in accordance with all applicable laws, rules, and regulations of all
authorities. CDI is not in violation of, or in default under, any term or
provision of the Articles or Bylaws or similar governing documents, or of any
lien, mortgage, lease, agreement, instrument, government requirement, order,
judgment, or decree, or subject to any restriction, contained in any of the
foregoing, of any kind or character which materially adversely affects in any
way the business, properties, assets, or prospects of CDI, or which would
prohibit CDI from entering into this Agreement or prevent consummation of the
issuance of securities contemplated by this Agreement. The Parties acknowledge
and agree that in order to issue electronic money within the European Union
("EU") an entity is required to obtain a license granted by the competent
authority of an EU Member State and is subject to regulation. Neither CDI nor
any of its direct or indirect Subsidiaries currently has such license and is
able under its own name to issue electronic money in Europe. Therefore, the
issuance of electronic money for CDI members or customers is currently assumed
by a banking partner in Germany called Netbank when necessary. It is the
intention of the Parties that USCO forms a Subsidiary which will apply for such
Electronic Money Issuer License in accordance with applicable regulations.
(7) Title to Properties and Assets. CDI has good and marketable
title to all its properties and assets, including without limitation, all
intellectual property rights and trade secrets and that property used or located
on property controlled by CDI in its business (except assets sold in the
ordinary course of business), free and clear of all mortgages, pledges, liens,
charges, security interests, encumbrances, or any other restriction except those
which do not materially adversely affect the use thereof. With respect to the
property or assets it leases, CDI is in compliance with such leases and, to its
Knowledge, holds a valid leasehold interest free of any liens, claims or
encumbrances.
(8) Contracts and Other Obligations. CDI is not a party to or
otherwise bound by, any written or oral:
(a) contract or agreement not made in the ordinary course of
business;
(b) contract with any labor union;
12
(c) bonus, pension, profit-sharing, retirement, share purchase,
stock option, hospitalization, group insurance, or similar plan providing
employee benefits;
(d) advertising contract or contract for public relations
services; or
(e) any contract, agreement, lease, document, or other
arrangement with which CDI is not in compliance.
(9) Records. The books of account, minute books, stock certificate
books, and stock transfer ledgers or similar records of CDI are complete and
correct, and there have been no transactions involving the business of CDI which
properly should have been set forth in said respective books, other than those
set forth therein.
(10) Brokers or Finders. All negotiations on the part of CDI
relative to this Agreement and the transactions contemplated hereby have been
carried on by CDI without the intervention of any Person or as the result of any
act of CDI in such manner as to give rise to any valid claim for a brokerage
commission, finder's fee, or other like payment.
(11) Taxes. Except as provided in Schedule 4.1, CDI has duly filed
all foreign, federal, state, county and local income, franchise, excise, real
and personal property and other tax returns and reports (including, but not
limited to, those relating to social security, withholding, unemployment
insurance, and occupation (sales) and use taxes) required to have been filed by
CDI up to the date hereof. All of the foregoing returns are true and correct in
all material respects and CDI has paid all taxes, interest and penalties shown
on such returns or reports as being due. CDI has no liability for any taxes,
interest or penalties of any nature whatsoever, except for those taxes which may
have arisen up to the Closing Date in the ordinary course of business and are
properly accrued on the books of CDI as of the Closing Date.
(12) Environmental and Safety Laws. To its Knowledge, CDI is not in
violation of any applicable statute, law or regulation relating to the
environment or occupational health and safety, and no material expenditures are
or will be required in order to comply with any such existing statute, law or
regulation.
(13) Governmental Consents. No consent, approval, order or
authorization of, or filing with, any foreign, federal, state, or local
governmental authority on the part of CDI is required in connection with the
transactions contemplated in this Agreement.
(14) Financial Statements. CDI agrees to provide to NFS prior to the
preparation for the filing of any registration statement by USCO for the
registration of USCO securities (i) audited financial statements for the years
ended December 31, 2002, December 31, 2003 and December 31, 2004 and (ii)
unaudited financial statements for the six month periods ended June 30, 2005 and
June 30, 2004 (the "Financial Statements") and has supplemented such statements
for events that have taken place up to the date of such filing. The Financial
Statements fairly and accurately present the financial condition and operating
results of CDI and its Subsidiaries as of the dates, and for the periods,
indicated therein, subject to normal year-end adjustments. Except as set forth
in the Financial Statements, CDI has no material liabilities, contingent or
otherwise, other than (i) liabilities incurred in the ordinary course of
business subsequent to the date of the balance sheet included in the Financial
Statements, (ii) obligations under contracts and commitments incurred in the
13
ordinary course of business and not required to be reflected in the Financial
Statements , which, in both cases, individually and in the aggregate, are not
material to the financial condition or results of operations of CDI. Except as
disclosed in the Financial Statements, CDI is not a guarantor or indemnitor of
any indebtedness of any other person, firm or corporation. The Financial
Statements have been prepared in accordance with French GAAP by a reputable
accounting firm.
(15) Intellectual Property.
(a) CDI, either directly or through a Subsidiary, exclusively
owns all right, title and interest to and in the material Intellectual Property
of CDI or any Subsidiary of CDI (other than Intellectual Property exclusively
licensed to CDI or its Subsidiaries) free and clear of any encumbrances (other
than nonexclusive licenses).
(b) All material Intellectual Property of CDI or any of its
Subsidiaries is valid, subsisting and enforceable.
(c) To the Knowledge of CDI, (i) no Person has infringed,
misappropriated, or otherwise violated, and (ii) no Person is currently
infringing, misappropriating or otherwise violating, any Intellectual Property
of CDI or any Subsidiary of CDI.
(d) To the Knowledge of CDI, neither CDI or any of its
Subsidiaries has infringed (directly, contributorily, by inducement or
otherwise), misappropriated or otherwise violated in any material respect any
Intellectual Property of any other Person, and is not currently engaging in any
such action.
(16) Insurance. CDI has in full force and effect insurance in
amounts customary for companies similarly situated.
(17) Proprietary Information Agreements. Each current employee,
officer or consultant of CDI or any of its Subsidiaries who is engaged in
product development has executed a Proprietary Information Agreement, in the
form attached hereto as Exhibit C or such other form mutually acceptable to the
Parties. To the Knowledge of CDI, no current employee, consultant or officer of
CDI has excluded works or inventions made prior to his or her employment with
CDI. CDI, after reasonable investigation, is not aware that any of its
employees, officers or consultants are in violation thereof, and CDI will use
its best efforts to prevent any such violation....
Section 4.2 Representations and Warranties of NFS. Except as set forth on
the Schedule of Exceptions attached hereto as Schedule 4.2, NFS represents and
warrants to CDI and JCC, as of the Closing Date, as follows:
(1) Organization and Standing of NFS. NFS is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Colorado. It has all requisite corporate power and authority to carry on its
business as now being conducted, to enter into this Agreement and to carry out
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and perform the terms and provisions of this Agreement. NFS and each of its
Subsidiaries is duly qualified to do business and is in good standing in each
jurisdiction in which the failure to be so qualified would have a material
adverse effect on the condition (financial or otherwise), business, net worth,
assets (including intangible assets), properties or operations of NFS.
(2) Due Authorization; Enforceability. The execution, delivery, and
performance of this Agreement shall have been duly authorized by all requisite
corporate action. This Agreement constitutes a valid and binding obligation of
NFS enforceable in accordance with its terms (except as limited by bankruptcy,
insolvency, or other laws affecting the enforcement of creditors' rights). The
execution, delivery and performance of this Agreement will not conflict with any
provision of the Articles, Bylaws, minutes or share certificates of NFS, or of
any contract to which NFS is a party or otherwise bound.
(3) Purchase Entirely for Own Account. This Agreement is made with
NFS in reliance upon NFS' representation to USCO and CDI, which by NFS'
execution of this Agreement confirms, that the NFS Shares to be received by NFS
will be acquired for investment for NFS' own account, not as a nominee or agent,
and not with a view to the resale or distribution of any part thereof, and that
NFS has no present intention of selling, granting any participation in, or
otherwise distributing the same. By executing this Agreement, NFS further
represents that it does not have any contract, undertaking, agreement or
arrangement with any Person to sell, transfer or grant participations to such
Person or to any third Person, with respect to the NFS Shares.
(4) Disclosure of Information. NFS believes it has received all the
information it considers necessary or appropriate for deciding whether to
purchase the NFS Shares. NFS further represents that it has had an opportunity
to ask questions and receive answers from USCO regarding the terms and
conditions of the offering of the NFS Shares and the business, properties,
prospects and financial condition of USCO and CDI and to obtain additional
information (to the extent USCO or CDI possessed such information or could
acquire it without unreasonable effort or expense) and/or conduct its own
independent investigation necessary to verify the accuracy of any information
furnished to NFS or to which NFS had access. The foregoing, however, does not
limit or modify the representations and warranties of CDI in Section 4.1 of this
Agreement or the right of NFS to rely thereon.
(5) Investment Experience. NFS is experienced in evaluating and
investing in the securities of companies in the development stage and
acknowledges that it is able to fend for itself, can bear the economic risk of
its investment, and has such knowledge and experience in financial or business
matters that it is capable of evaluating the merits and risks of the investment
in the NFS Shares.
(6) Restricted Securities. NFS understands that the NFS Shares are
being sold pursuant to an exemption from registration under the Securities Act.
NFS also understands that the NFS Shares may not be sold, transferred or
otherwise disposed of by NFS without registration under the Securities Act or an
exemption therefrom, and that in the absence of an effective registration
statement covering the NFS Shares or an available exemption from registration
under the Securities Act, the NFS Shares must be held indefinitely. In
particular, NFS is aware that the NFS Shares may not be sold pursuant to Rule
144 promulgated under the Securities Act unless all of the conditions of that
15
rule are met. Among the conditions for use of Rule 144 may be the availability
of current information to the public about USCO which is not now available. In
this connection, NFS represents that it is familiar with Rule 144, as presently
in effect, and understands the resale limitations imposed thereby and by the
Securities Act.
(7) Illiquid Investment. NFS further understands that no market
exists for the NFS Shares, and there can be no assurance that a market will
develop for the NFS Shares. Accordingly, the NFS Shares represent a very
illiquid investment with no assurance of an available exit strategy for NFS.
(8) Accredited Investor. NFS is an "accredited investor" within the
meaning of Rule 501 of Regulation D under the Securities Act, as presently in
effect.
(9) Brokers or Finders. Except as provided on Schedule 4.2, all
negotiations on the part of NFS relative to this Agreement and the transactions
contemplated hereby have been carried on by NFS without the intervention of any
Person or as the result of any act of NFS in such manner as to give rise to any
valid claim for a brokerage commission, finder's fee, or other like payment.
(10) Legend. It is understood that the certificates evidencing the
NFS Shares shall, prior to registration under the Securities Act, bear the
legends set forth in Section 3.5.
Section 4.3 Representations and Warranties of JCC. Except as set forth on
the Schedule of Exceptions attached hereto as Schedule 4.3, JCC hereby
represents and warrants to NFS and CDI, as of the Closing Date, as follows:
(1) Due Authorization; Enforceability. This Agreement has been duly
executed, acknowledged, and delivered by JCC and is the legal, valid and binding
obligation of JCC, enforceable against JCC in accordance with its terms, except
to the extent that the enforceability hereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
generally or by general principles of equity.
(2) Title. JCC owns all of the issued and outstanding shares of CDI
and such shares have been validly authorized and issued, and free and clear of
any and all liens, security interests, claims, encumbrances, or any other
restriction.
(3) Purchase Entirely for Own Account. Except as provided on
Schedule 4.3, this Agreement is made with JCC in reliance upon his
representation to USCO, which by his execution of this Agreement confirms, that
the JCC Shares to be received by JCC will be acquired for investment for JCC's
own account, not as a nominee or agent, and not with a view to the resale or
distribution of any part thereof, and that JCC has no present intention of
selling, granting any participation in, or otherwise distributing the same. By
executing this Agreement, JCC further represents that it does not have any
contract, undertaking, agreement or arrangement with any Person to sell,
transfer or grant participations to such Person or to any third Person, with
respect to the JCC Shares.
16
(4) Disclosure of Information. JCC believes he has received all the
information he considers necessary or appropriate for deciding whether to
purchase the JCC Shares. JCC further represents that he has had an opportunity
to ask questions and receive answers from USCO regarding the terms and
conditions of the offering of the JCC Shares and the business, properties,
prospects and financial condition of USCO and to obtain additional information
(to the extent USCO possessed such information or could acquire it without
unreasonable effort or expense) and/or conduct its own independent investigation
necessary to verify the accuracy of any information furnished to JCC or to which
JCC had access.
(5) Investment Experience. JCC is experienced in evaluating and
investing in the securities of companies in the development stage and
acknowledges that he is able to fend for himself, can bear the economic risk of
his investment, and has such knowledge and experience in financial or business
matters that he is capable of evaluating the merits and risks of the investment
in the JCC Shares.
(6) Restricted Securities. JCC understands that the JCC Shares are
being sold pursuant to an exemption from registration under the Securities Act.
JCC also understands that the JCC Shares may not be sold, transferred or
otherwise disposed of by JCC without registration under the Securities Act or an
exemption therefrom, and that in the absence of an effective registration
statement covering the JCC Shares or an available exemption from registration
under the Securities Act, the JCC Shares must be held indefinitely. In
particular, JCC is aware that the JCC Shares may not be sold pursuant to Rule
144 promulgated under the Securities Act unless all of the conditions of that
rule are met. Among the conditions for use of Rule 144 may be the availability
of current information to the public about USCO which is not now available. In
this connection, JCC represents that he is familiar with Rule 144, as presently
in effect, and understands the resale limitations imposed thereby and by the
Securities Act.
(7) Illiquid Investment. JCC further understands that no market
exists for the JCC Shares, and there can be no assurance that a market will
develop for the JCC Shares. Accordingly, the JCC Shares represent a very
illiquid investment with no assurance of an available exit strategy for JCC.
(8) Accredited Investor. JCC is an "accredited investor" within the
meaning of Rule 501 of Regulation D under the Securities Act, as presently in
effect.
(9) Brokers or Finders. All negotiations on the part of JCC relative
to this Agreement and the transactions contemplated hereby have been carried on
by JCC without the intervention of any Person or as the result of any act of JCC
in such manner as to give rise to any valid claim for a brokerage commission,
finder's fee, or other like payment.
(10) Legend. It is understood that the certificates evidencing the
JCC Shares shall, prior to registration under the Securities Act, bear the
legends set forth in Section 3.5.
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ARTICLE V
AFFIRMATIVE COVENANTS
Section 5.1 Public Announcements. During Pre-Closing Period, no party shall
(and no party shall permit any of its Subsidiaries or Representatives to) issue
any press release or make any public statement regarding this Agreement, or
regarding any of the other transactions contemplated by this Agreement, without
the prior written consent of the other parties hereto.
Section 5.2 Exclusive Dealing. Other than its obligation to assist NFS with
its Preferred Offering as provided in Section 2.3, during the Pre-Closing
Period, CDI shall not, and shall cause its Representatives and Subsidiaries not
to, directly or indirectly:
(1) solicit, encourage, entertain or enter into discussions or
negotiations with respect to any investment in, or purchase of, CDI or any
portion of its equity or its assets;
(2) introduce its business concept to other potential investors
during this period; or
(3) enter into an alternative transaction, a commitment to enter
into such a transaction, or a term sheet with any other party concerning such a
transaction.
Notwithstanding the foregoing, CDI may continue its relationship with ▇▇. ▇▇▇▇
▇▇▇▇▇ and his related traders, directly or indirectly, throughout the duration
and upon termination of this Agreement; provided that such relationship does not
violate any of the provisions of this Section 5.2.
Section 5.3 Conduct of Business of CDI. During the Pre-Closing Period, CDI
shall cause its business and the business of its Subsidiaries to be operated in
a manner consistent with current operations and past practices, including
without limitation:
(1) not making any commitments on behalf of USCO or NFS with respect
to the operations of USCO following the Closing;
(2) conferring with NFS prior to implementing operational decisions
of a material nature with respect to its business; provided however, that CDI
shall not be required to obtain the consent of NFS prior to implementing any
such decisions; and
(3) using its reasonable best efforts, consistent with past
practices and policies, to preserve intact its current business organization,
keep available the services of its officers, employees and agents and maintain
its relations and good will with dealers, suppliers, customers, landlords,
creditors, employees, agents and others having business relationships with it.
Section 5.4 USCO Board of Directors. At or immediately before Closing, the
directors of USCO shall appoint a Board of Directors consisting of ▇▇▇▇ ▇.
▇▇▇▇▇▇▇ and ▇▇▇▇-▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇. The other members of USCO's Board of
Directors prior to the Closing, if any, shall thereafter resign.
18
Section 5.5 Management and Operations of USCO. JCC shall be the President
and Chief Executive Officer of USCO with all the customary powers and
responsibilities attendant to that position. The USCO Board of Directors shall
consist of one member nominated jointly by JCC and CDI and one member nominated
by NFS.
Section 5.6 Due Diligence Investigation; Confidentiality.
(1) CDI and its Subsidiaries agree to cooperate with NFS' due
diligence investigation of CDI, including its Subsidiaries, and to provide NFS
and its Representatives with prompt and reasonable access to the books, records,
contracts, personnel, customers and suppliers of CDI and its Subsidiaries and to
such other information pertaining to CDI as NFS may request (collectively, the
"Due Diligence Information"). In this respect NFS acknowledges that the
information and other documentation CDI may provide in response to NFS' due
diligence investigation will be in the form of customary European documentation
generally prepared in accordance with European rules and regulations. NFS will
be under no obligation to continue with its due diligence investigation if at
any time the results of such investigation are not satisfactory to NFS for any
reason in its sole discretion. In such event, NFS may terminate this Agreement
as set forth in Sections 3.2(8) and 7.1(3).
(2) Except as otherwise permitted under Section 5.6(4), each of the
Parties will keep, and will cause its Representatives to keep, all Confidential
Information confidential. The term "Confidential Information" means all
information concerning a Party (the "Disclosing Party"), whether prepared by the
Disclosing Party, its advisors or otherwise, which is furnished to the other
Party (the "Receiving Party"), by or on behalf of the Disclosing Party,
including, without limitation, all written, electronic, recorded or oral
information, data, records, files, lists, materials, documents, or know-how;
provided, however, that the term "Confidential Information" does not include
information which: (i) becomes generally available to the public other than as a
result of a disclosure by the Receiving Party, the Receiving Party's affiliates,
or the Receiving Party's affiliates' directors, officers, employees, agents,
Representatives or advisors (collectively, the "Representatives") in breach of
the terms hereof; (ii) becomes available to the Receiving Party on a
non-confidential basis from a source other than the Disclosing Party or its
Representatives, provided that such source is not bound by an agreement
prohibiting the disclosure of the information in question to the Receiving
Party; or (iii) was within the possession of the Receiving Party or its
Representatives prior to its being furnished to the Receiving Party by or on
behalf of the Disclosing Party.
(3) Upon written request by the Disclosing Party, the Receiving
Party shall promptly redeliver to the Disclosing Party all written Confidential
Information and any other written or electronic material containing or generated
from the Confidential Information (whether prepared by the Disclosing Party its
advisors or otherwise) and will not retain any copies, extracts, or other
reproductions, in whole or in part, of such written or electronic material. All
copies of written or electronic material prepared by the Receiving Party or the
Receiving Party's advisors based on any Confidential Information shall be
destroyed, and such destruction shall be certified in writing to the Disclosing
Party by an authorized officer of the Receiving Party.
19
(4) If, in connection with any legal proceeding or administrative
action, the Receiving Party or any of the Representatives are requested to
disclose any Confidential Information by way of providing oral testimony or
responding to any subpoena, interrogatories, requests for information or
documents, civil investigative demand or other similar process, the Receiving
Party will promptly notify the Disclosing Party of such fact in order to permit
the Disclosing Party to seek a protective order or take other appropriate
action. The Receiving Party will also reasonably cooperate in the Disclosing
Party's efforts to obtain a protective order or other reasonable assurance that
confidential treatment will be accorded the Confidential Information. If, in the
absence of a protective order, the Receiving Party or any of the Representatives
are, in the opinion of the Receiving Party's counsel, compelled as a matter of
law to disclose the Confidential Information or else become subject to judicial
contempt proceedings or suffer other censure or penalty of liability, the
Receiving Party and/or the Representatives may disclose to the party compelling
disclosure only the part of the Confidential Information that is required to be
disclosed and, where possible, will use reasonable efforts to obtain
confidential treatment therefor.
ARTICLE VI
POST-CLOSING MATTERS
Section 6.1 Registration and Listing of USCO Securities. Following the
Closing, USCO will use commercially reasonable efforts to file with and have
declared effective by the SEC on or before March 31, 2006, a registration
statement on Form SB-2 (or such other appropriate form under the Securities Act
(the "Registration Statement"), provided the market conditions are appropriate.
In connection with such registration, USCO, with the guidance, assistance and
support of NFS, shall as soon as reasonably possible:
(1) enter into one or more underwriting agreements, engagement
letters, agency agreements, "best efforts" underwriting agreements or similar
agreements, as appropriate, and take such other actions in connection therewith
as reasonably necessary to expedite or facilitate the disposition of the
securities to be registered (the "Registered Securities"); and
(2) cause all such Registered Securities to be listed on the Nasdaq
National Market ("Nasdaq Market") with the assistance of NFS and to use its
commercially reasonable efforts to secure designation of all such Registered
Securities covered by such registration statement as a Nasdaq "National Market
System Security" within the meaning of Rule 11Aa2-1 under the Exchange Act, or,
failing that, to secure Nasdaq Market authorization for such Registered
Securities and, without limiting the generality of the foregoing, to arrange for
at least two market makers to register as such with respect to such Registered
Securities with the National Association of Securities Dealers.
20
Section 6.2 Management Stock Option. Upon completion of the USCO public
offering set forth in Section 6.1 provided USCO has a minimum valuation of at
least One Hundred Million USD ($100,000,000), and subject to Nasdaq Market
requirements in effect at the time of such grant, USCO shall grant an option to
purchase up to 10% of the equity of USCO outstanding immediately following the
completion of the public offering to the management of CDI with an exercise
price per share of the lesser of $2.50 per share or the current fair market
value of the common stock on the date of the grant. The stock option shall be
fully vested on the date of grant. JCC, as the CEO of USCO, shall have sole
responsibility for recommending to the USCO Board of Directors how to allocate
such stock options to the members of management subject to the applicable
regulations.
ARTICLE VII
TERMINATION
Section 7.1 Termination. This Agreement may be terminated prior to the
Closing:
(1) by mutual written consent executed by NFS, CDI and JCC at any
time;
(2) by CDI if any event occurs which renders satisfaction of one or
more of the conditions to CDI's obligations set forth in Section 3.3 impossible;
(3) by NFS if any event occurs which renders satisfaction of one or
more of the conditions to obligations of NFS set forth in Section 3.2
impossible; or
(4) by JCC if any event occurs which renders satisfaction of one or
more of the conditions to JCC's obligations set forth in Section 3.4 impossible;
(5) by either CDI, JCC or NFS if the Closing has not occurred on or
prior to November 30, 2005 or 30 days after the completion of an offering
document jointly prepared by CDI and NFS, whichever is later.
Section 7.2 Termination Procedure. If CDI or JCC wishes to terminate this
Agreement pursuant to Section 7.1, they shall deliver to NFS a written notice
stating that CDI or JCC is terminating this Agreement and setting forth a brief
description of the basis on which they are terminating this Agreement. If NFS
wishes to terminate this Agreement pursuant to Section 7.1, NFS shall deliver to
CDI and JCC a written notice stating that NFS is terminating this Agreement and
setting forth a brief description of the basis on which NFS is terminating this
Agreement.
Section 7.3 Remedies. In the event of termination of this Agreement
pursuant to Section 7.1:
(1) each party shall redeliver all documents, work papers and other
material of any other party relating to the transactions contemplated hereby,
whether obtained before or after the execution hereof, to the party furnishing
the same; and
21
(2) all obligations of the parties hereto under this Agreement shall
terminate and there shall be no liability of any party hereto to any other party
and each party hereto shall bear its own expenses incurred in connection with
the negotiation, preparation, execution and performance of this Agreement;
provided that the foregoing shall not relieve any party of liability for damages
actually incurred by any other party as a result of any breach of this Agreement
resulting from the willful misconduct or grossly negligent act or omission of
the party permitting, causing or committing such breach.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Amendment. This Agreement may be amended in any manner as may
be determined in the judgment of NFS, JCC and CDI to be necessary, desirable, or
expedient in order to clarify the intention of the parties hereto or to effect
or facilitate the purpose and intent of this Agreement, subject to the provision
herein that any amendment shall be ineffective unless in writing and executed by
the parties hereto.
Section 8.2 Counterparts and Facsimile Signatures. This Agreement may be
executed in any number of counterparts, each of which shall constitute an
original as against any party whose signature appears thereon, all of which
together shall constitute a single instrument. The Agreement shall become
binding when one or more counterparts, individually or taken together, bear the
signatures of all parties. This Agreement may be executed by facsimile signature
and the facsimile signature of any party shall constitute an original in all
respects.
Section 8.3 Waiver of Conditions. Either party may waive any condition
precedent, term or condition of this Agreement but such a waiver shall be
ineffective unless in writing and executed by an authorized representative of
both parties hereto.
Section 8.4 Assignment. Neither this Agreement nor any right created hereby
shall be assignable by NFS, JCC or CDI without the prior written consent of the
other party. Nothing in this Agreement, express or implied, is intended to
confer upon any Person, other than the parties hereby and their respective
successors, assigns, heirs, executors, administrators, or personal
representatives, any rights or remedies under or by reason of this Agreement.
Section 8.5 Entire Agreement. This Agreement, the Exhibits hereto, and the
certificates delivered pursuant hereby constitute the full and entire
understanding and agreement between the parties with regard to the subject
hereof and no party shall be liable or bound to any other in any manner by any
representations, warranties, covenants or agreements except as specifically set
forth herein. All prior agreements and understandings are superseded by this
Agreement and the Exhibits thereto.
Section 8.6 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Colorado without giving
effect to any choice of law or conflict of law provision or rule (whether of the
State of Colorado or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of Colorado.
22
Section 8.7 Severability. In case any provision of this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 8.8 Notices. All notices and other communications required or
permitted under this Agreement must be in writing and may be given by personal
delivery or U.S. mail, or confirmed facsimile. If given by mail, such notice
must be sent by registered or certified mail, postage prepaid, mailed to the
party at the respective address set forth below, and shall be effective only if
and when received by the party to be notified. For purposes of notice, the
addresses of the parties shall, until changed as hereinafter provided, be as
follows:
(1) If to NFS:
Navidec Financial Services, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇'▇ ▇▇▇▇▇ ▇▇▇▇▇▇
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Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Phone No. to Confirm Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
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Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Phone No. to Confirm Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(2) If to CDI:
Chopin Developpement International
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President and CEO
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Facsimile No : 015 353 4301
Phone to Confirm Fax : ▇▇ ▇▇▇ ▇▇▇ ▇▇▇
With a copy to :
Etienne Mouthon
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Facsimile No : __________________
Phone to Confirm Fax : ▇▇ ▇▇▇ ▇▇▇ ▇▇▇
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(3) If to JCC:
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Facsimile No : 015 353 4301
Phone to Confirm Fax : ▇▇ ▇▇▇ ▇▇▇ ▇▇▇
or at such other address or facsimile number as any party may have advised
the other in writing.
Section 8.9 Attorney Fees. If any action at law or in equity, including an
action for declaratory relief, is brought to enforce or interpret the provisions
of this Agreement, the prevailing party shall be entitled to recover reasonable
attorney fees from the other party or parties, which fees shall be in addition
to any other relief which may be awarded.
Section 8.10 Indemnification by NFS. NFS agrees to indemnify and hold CDI
and JCC harmless against any loss, liability, damage or expense (including
reasonable attorney fees and costs) which CDI or JCC may suffer, sustain or
become subject to as a result of or in connection with the breach by NFS of any
representation, warranty, covenant or agreements of NFS contained in this
Agreement
Section 8.11 Indemnification by CDI. CDI agrees to indemnify and hold NFS
harmless against any loss, liability, damage or expense (including reasonable
attorney fees and costs) which NFS may suffer, sustain or become subject to as a
result of or in connection with the breach by CDI of any representation,
warranty, covenant or agreements of CDI contained in this Agreement.
Section 8.12 Further Action. 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 actions and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations to
consummate the transactions contemplated by this Agreement.
Section 8.13 Survival of Representations and Warranties. All statements of
fact contained herein, or in any certificate or schedule delivered by or on
behalf of CDI, NFS or JCC pursuant to the terms hereof, shall be deemed
representations and warranties made by CDI, NFS or JCC, respectively, to each
other under this Agreement. The representations and warranties of CDI, NFS or
JCC shall survive for a period of one year following the Closing.
Section 8.14 Headings. The headings are included for convenience only and
shall not affect the construction or interpretation of this Agreement.
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Section 8.15 Expenses. Each of the parties shall be responsible for all
costs and expenses that it incurs with respect to the negotiation, execution,
delivery and performance of this Agreement and any related agreements.
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IN WITNESS WHEREOF, this Agreement is hereby duly executed by each party
hereto as of the date first written above.
CHOPIN DEVELOPPEMENT INTERNATIONAL ,
a French corporation
By: /s/ ▇▇▇▇-▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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President and Chief Executive Officer
NAVIDEC FINANCIAL SERVICES, INC.,
a Colorado corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Chief Executive Officer
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/s/ ▇▇▇▇-▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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