Exhibit 2.1
MERGER AGREEMENT
----------------
THIS MERGER AGREEMENT (the "Agreement") is entered into on March 18, 2002
between ProCon Systems ApS, a Danish Corporation ("ProCon") and Internet
Commerce, Inc., a Florida Corporation ("Subsidiary") which is a fully owned
subsidiary company of Safe Technologies International, Inc. a Delaware
Corporation ("SFAD").
The Board of Directors of Subsidiary and ProCon believe the merger of ProCon
with and into Subsidiary would be advantageous and beneficial and in the best
interests of ProCon and Subsidiary and their respective shareholders.
It is the intention of the parties hereto that (i) ProCon shall be merged with
and into Subsidiary (the "Merger"), (ii) effective as of Closing the outstanding
shares of ProCon will be converted into shares of the Common Stock of Subsidiary
(the "Merger Stock"), (iii) the issuance of the Merger Stock shall not be
registered under the Securities Act of 1933, as amended (the " Securities Act"),
or under applicable state securities laws, pursuant to exemptions from such
registration, and (iv) the Merger shall qualify as tax-free reorganization under
Section 36B (a) (1) (A) of the Internal Revenue Code of 1986, as amended (the
"Code").
THEREFORE, in consideration of the mutual covenants and agreement set forth
herein and intending to be legally bound, the parties hereto agree as follows:
1. Recitals and Definitions:
------------------------
(a) The foregoing Recitals are true and correct and are incorporated
herein and made a part hereof.
(b) For the purposes of this Agreement, the terms set forth below shall
have the following meanings:
(c) ProCon Financial Statements means the unaudited financial
statements of ProCon as of and for the period ended February 28, 2002.
(d) Subsidiary Financial Statements means the unaudited financial
statements of Subsidiary as of and for the period ended December 31, 2001.
(e) Closing means the consummation of the transaction of events set
forth in Section 11 hereof.
(f) Closing Date means the day on which the closing is held as set
forth in Section 7 hereof and the time that Articles of the Merger are filed in
accordance with the laws of the State of Florida.
(g) Common Stock means Common Stock $0.001 par value per share, of
Subsidiary.
(h) Merger means the merger of ProCon with and into Subsidiary, which
will result in the conversion of each outstanding share of the common stock of
ProCon into shares of the Merger Stock.
2. The Merger.
----------
(a) Subsidiary and ProCon agree that on the Closing Date ProCon shall
be merged with and into the Subsidiary, which shall be the surviving
corporation, and which will change its name to "ProCon Systems, Inc." Pursuant
to the Merger, the shares of stock of ProCon issued and outstanding immediately
prior to the Closing shall, without any action on the part of the holder
thereof, be converted, pro rata, into a total of 92,000,000 shares of Common
Stock of the Subsidiary, representing the Merger Stock. No other consideration
shall be payable to the ProCon stockholders in connection with the Merger. The
issuance of the Merger Stock will not be registered pursuant to the Securities
Act of applicable state securities laws, but will be issued in reliance upon
exemptions from such registration.
(b) From and after the Closing, the Articles of Incorporation and
Bylaws of Subsidiary as in effect immediately prior to the Closing shall be the
Articles of Incorporation and Bylaws of the surviving corporation, until further
amended.
3. Representations and Warranties of Subsidiary. As a material inducement
to ProCon to enter into this Agreement and consummate the transactions
contemplated hereby, Subsidiary makes the following representations and
warranties to ProCon. The representations and warranties are true and correct in
all material respects at this date, and will be true in all material respects on
the Closing Date as though made on and as of such date.
(a) Due Organization. Subsidiary is a corporation duly organized,
validly existing and in good standing under the laws of the State of Florida.
Subsidiary has the corporate power to own its property and to carry on its
business as now presently conducted. Subsidiary is qualified to do business and
in good standing in each state where the properties owned, issued, and operated
or the business conducted by it require such qualification.
(b) Capitalization. At Closing, the authorized capitalization of
Subsidiary will consist of 250,000,000 shares of Common Stock, of which
8,000,000 shares will be issued and outstanding immediately prior to Closing.
All issued and outstanding shares will be duly authorized, validly issued, fully
paid and non-assessable and will have been issued in compliance with applicable
federal and state securities laws and registrations. Except for the foregoing,
there are no outstanding or presently authorized securities, warranties,
preemptive rights, subscription rights or options to issue any of Subsidiary's
securities.
2
(c) Shares of Merger Stock; Nature of Transaction. The Merger Stock
will be validly and legally issued free and clear of all liens, encumbrances,
transfer fees, and preemptive rights, and will be fully paid and non-assessable.
When consummated, the transactions provided in this Agreement, including the
issuance and delivery of the Merger Stock will constitute a tax-free
reorganization under Section 368 (a)(1)(A) of the Code.
(d) Subsidiary Financial Statements. Schedule 3(d) contains the
Subsidiary Financial Statements. The Subsidiary Financial Statements and
financial information contained therein present fairly the financial conditions
of Subsidiary for the periods covered (subject in the case of unaudited
statements, no normal year-end audit adjustments which will not be material to
Subsidiary, taken as a whole in amount or effect.) The subsidiary Financial
Statements have been prepared in accordance with generally accepted accounting
principles, consistently applied. The books and records of Subsidiary financial
and other are in all material respects complete and correct and have been
maintained in accordance with good business and accounting principals.
(e) Undisclosed Liabilities. Subsidiary does not have liabilities or
obligations of any nature, fixed or contingent, matured or unmatured, that are
not shown or otherwise provided for in the Subsidiary Financial Statements,
except for liabilities and obligations arising subsequent to the date of the
Subsidiary Financial Statements in the ordinary course of business or financial
condition of Subsidiary. There are no material loss contingencies (as such terms
is used in Statement of Financial Accounting Standards No. 5 of the Financial
Accounting Standards Board) of Subsidiary that are being adequately provided for
in the Subsidiary Financial Statements.
(f) Material Adverse Change. Since the date of the most recent
Subsidiary Financial Statements, the business of Subsidiary has been operated in
the ordinary course and there has not been:
(i) Any material adverse change in the business, condition (financial
or otherwise), results of operations, prospects, properties, assets,
liabilities, earnings, or net worth of Subsidiary for such period or at any time
during such period.
(ii) Any material damage, destruction, or loss (whether or not
covered by insurance) affecting Subsidiary or its assets, properties, or
business.
(iii) Any declaration, setting aside or payment of any
dividend or other distribution in respect of any shares of the capital stock of
Subsidiary or any direct or indirect redemption, purchase or other acquisition
of any such stock or any agreement to do so.
(iv) Any issuance or sale by Subsidiary, or agreement by
Subsidiary to sell or pledge any of its securities. No irrevocable proxies been
given with respect to any securities of Subsidiary.
(v) Any statute, rule, regulation or order adopted by any
governmen t body, agency, or authority (including orders of regulatory
authorities with jurisdiction over Subsidiary) that materially and adversely
affects Subsidiary or its business or financial condition.
3
(vi) Any material increase in the rate of compensation or in
bonus or commission payments payable or to become payable to any of the salaried
employees of Subsidiary; provided, however that the subscription shall not
restrict or limit Subsidiary in any way from hiring additional personnel who are
required for its operations.
(vii) Any other events or conditions of any character that may
reasonably be expected to have a materially adverse effect on Subsidiary or its
business or financial condition.
(g) Litigation. There are no actions, suits, claims, investigations, or
legal, administrative or arbitration proceedings pending or to the knowledge of
Subsidiary threatened against Subsidiary whether at law or in equity, or before
or by any federal, sate, municipal, local, foreign, or other governmental
department, commission, board, bureau, agency, or instrumentality, nor does
Subsidiary know of any basis for any such action, suit, claim, investigation, or
proceeding.
(h) Compliance. Subsidiary has complied in all material respects with
all federal, state, local, or foreign laws, ordinances, regulations, and orders
applicable to its business including without limitation federal and state
securities, banking collection, and consumer protection laws and regulations
that, if not complied with would, seriously and adversely effect its business.
Subsidiary has all federal, state, local, and foreign governmental licenses and
permits necessary for the conduct of its business such as licenses and permits
are in full force and effect. Subsidiary knows of no violations of any such
licenses or permits, no proceedings are pending or threatened to revoke or limit
the use of such licenses or permits.
(i) Tax Matters. Subsidiary has, or at the time of the Closing
hereunder will have, filed all federal state and local tax or related returns
and reports due or required to be filed, which reports will accurately reflect
all material respects the amount of taxes due. Subsidiary has paid all amounts
or taxes or assessments that would be delinquent if not paid as of the date of
this Agreement, and will have paid such required amounts as of the Closing Date.
There are no tax liens with respect to any properties owned by Subsidiary.
(j) Due Authorization. This Agreement has been duly authorized,
executed, and delivered by Subsidiary and constitutes a valid and binding
agreement of Subsidiary enforceable in accordance with its terms, except as such
enforcement may be limited by applicable bankruptcy, insolvency, moratorium, and
other similar laws relating limiting or affecting the enforcement of the
creditors rights generally or by the application of equitable principals.
Neither the execution and delivery of this Agreement, nor consummation of the
transactions contemplated hereby, nor compliance with any of the provisions
hereof, will violate any order, writ, injunction, or decree of any court or
governmental authority, or violate or conflict with in any material respect or
constitute a default under (or give rise to any right of termination,
cancellation. or acceleration under) any provisions of Subsidiary's Articles of
Incorporation or Bylaws, the terms or conditions or provisions of any note,
bond, lease, mortgage, obligation, agreement, understanding, arrangement or
restriction of any kind to which Subsidiary is a party or by which Subsidiary or
its properties may be bound or violates any statute, law, rule, or regulation
applicable to Subsidiary. No consent or approval by any governmental authority
is required in connection with the execution and delivery by Subsidiary of this
agreement or the consummation of the transactions contemplated hereby.
4
(k) Full Disclosure. Subsidiary has not, and will not have at the
Closing Date, withheld disclosure of any events, conditions, and facts of which
it may have knowledge and that may materially and adversely affect the business
or prospects of Subsidiary.
(l) No Approvals required. No approval, authorization, consent, order,
or other actions of, or filing with, any person, firm, or corporation or any
court, administrative agency or other governmental authority is required in
connection with the execution and delivery by Subsidiary of this Agreement or
the consummation of the transactions described herein except to the extent that
Subsidiary may be required to file reports in accordance with relevant
regulations under federal and state securities laws.
4. Representations and Warranties of ProCon. As a material inducement to
Subsidiary to enter into this Agreement and consummate the transactions
contemplated hereby, ProCon makes the following representations and warranties
to Subsidiary. The representations and warranties are true and correct in all
material respects at this date, and will be true in all material respects on the
Closing Date as though made on and as of such date.
(a) Due Organization. ProCon is a corporation duly organized, validly
exi sting and in good standing under the laws of the Kingdom of Denmark. ProCon
has the corporate power to own its property and to carry on its business as now
presently conducted.
(b) Capitalization. All issued and outstanding shares are duly
authorized, validly issued, fully paid and non-assessable.
(c) ProCon Financial Statements. Schedule 4(c) contains the ProCon
Financial Statements. The ProCon Financial Statements and financial information
contained therein present fairly the financial condition of ProCon as of the
date thereof (subject in the case of un-audited statements, no normal year-end
audit adjustments which will not be material to ProCon, taken as a whole in
amount or effect.) The ProCon Financial Statements have been prepared in
accordance with U.S. generally accepted accounting principles, consistently
applied. The books and records of ProCon, financial and other, are in all
material respects complete and correct and have been maintained in accordance
with good business and accounting principles.
(d) Undisclosed Liabilities. ProCon does not have liabilities or
obligations of any nature, fixed or contingent, matured or un-matured, that are
not shown or otherwise provided for in the ProCon Financial Statements, except
for liabilities and obligations arising subsequent to the date of the ProCon
Financial Statements in the ordinary course of business or financial condition
of ProCon. There are no material loss contingencies (as such terms is used in
Statement of Financial Accounting Standards No. 5 of the Financial Accounting
Standards Board) of Subsidiary that are being adequately provided for in the
Subsidiary Financial Statements. At or prior to Closing, ProCon will deliver to
Subsidiary a copy, and an English translation, of the order discharging in
bankruptcy all debts and liabilities of ProCon's predecessor, Pro:Con A/S, or
such other documentation as may be acceptable to Subsidiary to demonstrate that
ProCon has no liability for any debts or liabilities of such predecessor.
5
(e) Material Adverse Change. Since the date of the ProCon Financial
Statements, the business of ProCon has been operated in the ordinary course and
there has not been:
(i) Any material adverse change in the business, condition
(financial or otherwise), results of operations, prospects, properties, assets,
liabilities, earnings, or net worth of ProCon for such period or at any time
during such period.
(ii) Any material damage, destruction, or loss (whether or not
covered by insurance) affecting ProCon or its assets, properties, or business.
(iii) Any statute, rule, regulation or order adopted by any
government body, agency, or authority (including orders of regulatory
authorities with jurisdiction over ProCon) that materially and adversely affects
ProCon or its business or financial condition.
(iv) Any material increase in the rate of compensation or in
bonus or commission payments payable or to become [payable to any of the
salaried employees of ProCon; provided, however that the subscription shall not
restrict or limit ProCon in any way from hiring additional personnel who are
required for its operations.
(v) Any other events or conditions of any character that may
reasonably be expected to have a materially adverse effect on ProCon or its
business or financial condition.
(f) Litigation. There are no actions, suits, claims, investigations, or
legal administrative or arbitration proceedings pending or to the knowledge of
ProCon threatened against ProCon whether at law or in equity, or before or by
any federal, sate, municipal, local, foreign, or other governmental department,
commission, board, bureau, agency, or instrumentality, nor does ProCon know of
any basis for any such action, suit, claim, investigation, or proceeding.
(g) Compliance. ProCon has complied in all material respects with all
federal, state, local, or foreign laws, ordinances, regulations, and orders
applicable to its business including without limitation federal and state
securities, banking collection, and consumer protection laws and regulations
that, if not complied with would, seriously and adversely effect its business.
ProCon has all federal, state, local, and foreign governmental licenses and
permits necessary for the conduct of its business such as licenses and permits
are in full force and effect. ProCon knows of no violations of any such licenses
or permits, no proceedings are pending or threatened to revoke or limit the use
of such licenses or permits.
(h) Tax Matters. ProCon has, or at the time of the Closing hereunder
will have, filed all federal state and local tax or related returns and reports
due or required tube filed, which reports will accurately reflect all material
respects the amount of taxes due. ProCon has paid all amounts or taxes or
assessments that would be delinquent if not paid as of the date of this
Agreement, and will have paid such required amounts as of the Closing Date.
There are no tax liens with respect to any properties owned by ProCon.
6
(i) Due Authorization. This Agreement has been duly authorized,
executed, and delivered by ProCon and constitutes a valid and binding agreement
of ProCon enforceable in accordance with its terms, except as such enforcement
may be limited by applicable bankruptcy, insolvency, moratorium, and other
similar laws relating limiting or affecting the enforcement of the creditors
rights generally or by the application of equitable principals. Neither the
execution and delivery of this Agreement, nor consummation of the transactions
contemplated hereby, nor compliance with any of the provisions hereof, will
violate any order, writ, injunction, or decree of any court or governmental
authority, or violate or conflict with in any material respect or constitute a
default under (or give rise to any right of termination, cancellation. or
acceleration under) any provisions of ProCon's Articles of Incorporation or
Bylaws, the terms or conditions or provisions of any note, bond, lease,
mortgage, obligation, agreement, understanding, arrangement or restriction of
any kind to which ProCon is a party or by which ProCon or its properties may be
bound or violates any statute, law, rule, or regulation applicable to ProCon. No
consent or approval by any governmental authority is required in connection with
the execution and delivery by ProCon of this agreement or the consummation of
the transactions contemplated hereby.
(j) Full Disclosure. ProCon has not, and will not have at the Closing
Date, withheld disclosure of any events, conditions, and facts of which it may
have knowledge and that may materially and adversely affect the business or
prospects of ProCon.
(k) No Approvals required. No approval, authorization, consent, order,
or other actions of, or filing with, any person, firm, or corporation or any
court, administrative agency or other governmental authority is required in
connection with the execution and delivery by ProCon of this Agreement or the
consummation of the transactions described herein except to the extent that
ProCon may be required to file reports in accordance with relevant regulations
under federal and state securities laws.
5. Covenants and Related Agreements.
--------------------------------
(a) Conduct of business. From the date hereof through the day of
Closing, Subsidiary and ProCon shall conduct their respective businesses in the
ordinary course and in material compliance with all requirements of laws to
which they are subject, and shall keep their respective business and properties
substantially intact. Subsidiary and ProCon shall promptly notify each other of
any lawsuit, claims, proceedings, or investigations which after the date hereof
are threatened or commenced against it or against any officer, director,
employee, affiliate, or consultant of it with respect to the transactions
contemplated hereby or which reasonably could be expected to have a material
adverse affect. Neither ProCon nor Subsidiary shall issue, commit to issue,
redeem, purchase, or amend the terms of any of its capital stock after the date
hereof. ProCon and Subsidiary undertake and agree to take no action, which would
cause the Merger to fail to qualify as reorganization within the meaning of
Section368(a)(1)(A) of the Code, and agree that they will file no tax returns or
otherwise takes a position inconsistent with such tax treatment.
(b) Shareholder Approval. At the earliest practical date following the
date hereof, Subsidiary and ProCon shall obtain their respective shareholders'
approval adopting this agreement and approving the Merger.
7
(c) Additional Capital. ProCon represents that it has received a
commitment for up to US$4,500,000 in order to fund its proposed operations.
Prior to Closing, ProCon will deliver to SFAD a copy of such written commitment.
Any capital raising efforts undertaken by the merged entity will be made only in
compliance with all applicable federal and state securities laws.
(d) Establishment of Public Trading Market. Within 90 days after
Closing, new management of the merged entity will prepare and file such
Registration Statements and related filings as may be necessary to establish a
public trading market for the merged entity's common stock as soon as possible,
and will retain the services of a nationally recognized investment banking firm
to assist the merged entity in establishing and maintaining such a market. If
for any reason, such Registration Statements are not filed within such 90 days,
the merged entity will then pay to SFAD $5,000, and will pay an additional
$5,000 to SFAD on the last day of each month thereafter until such Registration
Statements are filed. If for any reason, a public trading market for the Common
Stock of the merged entity is not established by December 31, 2002, the merged
entity will then pay to SFAD $5,000, and will pay an additional $5,000 to SFAD
on the last day of each month thereafter until such a public trading market is
established. The foregoing payments are to be liquidated damages for the
detriment which will have been suffered by SFAD due to the delay in SFAD's
ability to liquidate its stock in the merged entity.
(e) Spin Off to SFAD Shareholders. After Closing, SFAD will hold 8% of
the outstanding shares of the Subsidiary. Prior to the filing of a Registration
Statement by the merged entity, SFAD will take such actions as necessary to
distribute to its shareholders, pro rata, shares of Common Stock representing
four percent (4%) of the outstanding stock of the Subsidiary after Closing. The
SFAD shareholders will be required to pay the cost of issuance if they wish to
receive physical delivery of their share certificates.
(f) Delivery of Financial Information. For so long as SFAD is required
to include in its periodic filings with the SEC financial or other information
regarding the merged entity, the merged entity will supply such information,
upon request and in a timely manner.
6. Due Diligence and Termination. Subsidiary and ProCon each shall be
entitled to conduct, and all of the parties agree to cooperate in the conduct
of, such due diligence as Subsidiary or ProCon may wish to conduct prior to and
on the Closing Date to verify the truth, accuracy, and completeness of
representations and warranties of the other parties to this Agreement. Each
party is responsible for paying their own costs for the due diligence.
7. Closing Date. Both parties will diligently and continuously pursue the
actions required to close the Merger as soon as possible, but in no event later
than March 29, 2002 (the "Closing Date"). The Closing Date may be extended only
by mutual written consent of all parties to this Agreement.
8. Conditions Precedent to Obligations of ProCon. All obligations of
ProCon under this Agreement are subject to the fulfillment, prior to or on the
Closing Date (unless otherwise stated herein), of each of the following
conditions, and one or all of which may be waived by ProCon:
(a) The shareholders of ProCon shall have approved the execution of
this Agreement and the Merger hereby.
8
(b) The representations and warranties made by Subsidiary contained in
this Agreement or in any certificate or do cument delivered to ProCon pursuant
to the provisions hereof at the Closing shall be true in all material respects
at and as of the tine of the Closing as though such representations and
warranties were made at and as of such time.
(c) Subsidiary shall have performed and complied in all material
respects with all covenants, agreements and conditions required by this
Agreement to be performed or complied with by prior to or at the Closing.
(d) Any Due Diligence Examination by ProCon prior to the Closing Date
shall not have resulted in the discovery of any materially adverse information
concerning the business, condition, (financial or otherwise) results of
operations, prospects, properties, assets, liabilities, earnings, or net worth
of Subsidiary.
9. Conditions Precedent to Obligations of Subsidiary. All obligations of
Subsidiary under this Agreement are subject to the fulfillment, prior to or on
the Closing Date of each of the following conditions, any one or all of which
may be waived in writing by Subsidiary:
(a) The shareholders of Subsidiary shall have approved the execution of
this Agreement and the Merger hereby.
(b) The representations and warranties made by ProCon contained in this
agreement or in any certificate or document delivered to Subsidiary pursuant to
the provisions hereof at the Closing shall be true in all material respects at
and as of the time of the Closing as though such representations and warranties
were made at and as of such time.
(c) ProCon shall have performed and complied in all material respects
with all covenants, agreements, and conditions required by this Agreement to be
performed or complied with by it prior to or at the Closing.
(d) Any Due Diligence Examination by Subsidiary prior to the Closing
Date shall not have resulted in the discovery of any materially adverse
information inconsistent or contradictory to the disclosure and information
provided by ProCon to Subsidiary prior to closing.
10. Nature of Representations and Warranties. All of the parties hereto are
executing and carrying out the provisions of this Agreement in reliance on the
representations, warranties, covenants, and agreements contained in this
Agreement or at the Closing of the transaction herein provided for and any
investigation that they might have made or any other representations,
warranties, covenants, agreements promises or information, written or oral, made
by the other party or parties or any other person shall not be deemed a waiver
of any breech of any such representation, warranty, covenant, or agreement.
9
11. Transactions at Closing. At the Closing, the following transactions are
to occur simultaneously:
(a) ProCon will deliver, or cause to be delivered to Subsidiary the
following:
(i) All corporate records of ProCon, including without
limitation corporate minute books (which shall contain copies of the Articles of
Incorporation and Bylaws, as amended to the Closing Date), stock books, stock
transfer books, corporate seals, and such other corporate books and records as
Subsidiary and its counsel may reasonably request.
(ii) A certificate of Status dated after January 1, 2002, to
the effect that ProCon is in active status.
(iii) Copies of resolutions of the Board of Directors and
Shareholders of ProCon authorizing the transactions contemplated under this
Agreement.
(iv) Such documents as may be needed to accomplish the Merger
under the corporate laws of the state of Florida.
(v) Such other instruments, documents, and certificates if any
as are required to be delivered pursuant to the provisions of this Agreement or
that may be reasonably requested in furtherance of the provisions of this
Agreement.
(b) Subsidiary will deliver or cause to be delivered to ProCon:
(i) Stock issuance instructions to Subsidiary's transfer agent
for the issuance of the Merger Stock to the ProCon shareholders.
(ii) A certificate of Status for Subsidiary from the Secretary
of State of Florida, dated after January 1, 2002, to the effect that such
corporation is in active status under the laws of Florida.
(iii) Copies of resolutions of the Board of Directors and
Shareholders of Subsidiary authorizing the transactions contemplated under this
Agreement.
(iv) Such documentation as may be needed to accomplish the
Merger under the corporate laws of the State of Florida.
(v) Resignations of all directors of Subsidiary, election by
the stockholder of replacement directors, as designated by ProCon, to serve
until the next election of directors by the shareholders of the merged entity,
and the resignations of all officers of Subsidiary, except for any officers
which the new Board of Directors may wish to retain.
(vi) Such instruments, documents and certificates, if any, as
hare required to be delivered pursuant to the provisions of this Agreement or
that may be reasonably requested in furtherance of the provisions of this
Agreement.
10
12. Miscellaneous.
-------------
(a) Further Assurances. At any time, and from time to time, after the
Closing, each party will execute such additional instruments and take such
further action as may be reasonably requested by the other party to confirm or
perfect title to any property transferred hereunder or otherwise to carry out
the intent and purpose of this Agreement.
(b) Time. Time is of the Essence.
(c) Survival of Representations. All covenants and agreements made
herein shall survive the Closing through all applicable statutes of limitation.
All covenants and agreements by or on behalf of the parties hereto that are
contained or incorporated in this Agreement shall bind and inure to the benefit
of the successors and assigns of all parties hereto.
(d) Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof. It
supercedes all prior negotiations, letters and understandings relating to the
subject matter hereof.
(e) Amendment. This Agreement may not be amended, supplemented, or
modifies in whole or in part except by an instrument in writing signed by the
party or parties against whom enforcement of any such amendment, supplement, or
modification is sought.
(f) Choice of Law. This Agreement shall be interpreted, construed, and
enforced in accordance with the laws of the State of Florida.
(g) Headings. The section and sub screen headings in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(h) Construction. The parties and their respective legal counsel
participated in the preparation of this Agreement therefore; this Agreement
shall be construed neither against nor in favor of any of the parties hereto,
but rather in accordance with the fair meaning thereof.
(i) Effect of Waiver. The failure of any party at any time or times to
require performance of any provision of this Agreement will in no manner affect
the right to enforce the same. Such party of any breach of any other provision
will not construe the waiver by any party of any breach of any provision of this
Agreement to be a waiver by any such party succeeding breach of that provision
or a waiver.
(j) Severability. The invalidity, illegality, or unenforceability of
any provision or provisions of this Agreement will not affect any other
provision of this Agreement, which will remain in full force and effect, nor
will the invalidity, illegality, or unenforceability of a portion of any
provision of this Agreement affect the balance of such provision. In the event
that any one or more of the provisions contained in this Agreement or any
portion thereof shall for any reason be held to be invalid, illegal, or
unenforceable in any respect, this Agreement shall be reformed, construed, and
enforced as of such invalid, illegal, or unenforceable provision had never bee
contained herein.
11
(k) Enforcement. Should it become necessary for any party to institute
legal action to enforce the terms and conditions of this Agreement, the
successful party will be awarded reasonable attorneys' fees at all trial and
appellate levels, expenses and costs. The parties hereto acknowledge and agree
that any party's remedy at law for a breach or threatened breach or of ant of
the provisions of this Agreement would be inadequate and such breach or
threatened breach shall per se deemed as causing irreparable harm to such party.
Therefore, in the event of such breach or threatened breach, the parties hereto
agree that in addition to any available remedy at law, including but not limited
to monetary damages, an aggrieved party, without posting any bond shall be
entitled to obtain, and the offending party agrees not to oppose the aggrieved
party's request for, adequate relief in the form of specific enforcement,
temporary restraining order, temporary or permanent injunction, or any other
equitable remedy that may be available to the aggrieved party.
(l) Binding Nature. This Agreement will be binding upon and will inure
to the benefit of any successor or successors of the parties hereto.
(m) No Third-Party Beneficiaries. No person shall be deemed to possess
any third-party beneficiary right pursuant to this Agreement. It is the intent
of the parties hereto that no direct benefit to any third party is intended or
implied by the execution of this Agreement.
(n) Press Releases and Announcements; Prohibition against Trading in
SFAD Stock. Upon execution of this Agreement, SFAD will prepare, send to ProCon
for review and approval (such approval not to be unreasonably delayed or
withheld), and issue a press release or announcement relating to the Closing of
this Agreement. ProCon and SFAD acknowledge that the United States Securities
Laws prohibit any person who has received material non-public information
concerning the matters which are the subject matter of this Agreement from
purchasing or selling the securities of SFAD, or from communicating such
information to any person under circumstances in which it is reasonably
foreseeable that such person is likely to purchase or sell securities of SFAD,
until the information has become publicly available. Accordingly, ProCon and
SFAD agree that they will instruct their respective directors and officers not
to purchase or sell any securities of SFAD, or communicate such information to
any other person under circumstances in which it is reasonably foreseeable that
such person is likely to purchase or sell securities of SFAD, until no earlier
than 72 hours following the dissemination of a Current Report by SFAD on Form
8-K to the SEC announcing the proposed Merger pursuant to this Agreement.
(o) Review by SEC Attorneys. Both parties acknowledge that they have
sought and received counsel from their respective legal and securities counsel
prior to entering into this agreement.
(p) Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
(q) Execution by Fax. This Agreement may be executed and accepted by
facsimile signature and any such signature shall be of the same force and effect
as an original signature.
The balance of this page is intentionally left blank.
12
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first below written. NOTE: SIGNATURE BY ELECTRONIC MEANS IS ACCEPTABLE.
PROCON SYSTEMS APS
By: _____________________________________
Name: Xxxx X. Xxxxxx
Title: Chief Executive Officer
Date: March 18, 2002
INTERNET COMMERCE, INC.
By: _____________________________________
Name: Xxxxxxxx X. Xxxxxx
Title: President
Date: March 18, 2002
SAFE TECHNOLOGIES INTERNATIONAL, INC.
By: _____________________________________
Name: Xxxxxxx Xxxxxx
Title: President
Date: March 18, 2002
13
List of Schedules:
Schedule 3(d) -Subsidiary Financial Statements
Schedule 4(c) -ProCon Financial Statements
ADDENDUM TO MERGER AGREEMENT
This Addendum is entered into on March __, 2002, supplementing the terms of the
Merger Agreement dated March 18, 2002 (the "Merger Agreement") between ProCon
Systems ApS, a Danish corporation ("ProCon") and Internet Commerce, Inc., a
Florida corporation ("Subsidiary") which is a fully owned subsidiary company of
Safe Technologies International, Inc., a Delaware corporation ("SFAD").
The Merger Agreement is hereby clarified as follows:
Any stock of the Subsidiary issued in connection with obtaining the financing
referred to in Section 5(c) of the Merger Agreement, and any stock of the
Subsidiary issued in connection with the acquisition of the operations of
ProCon's predecessor company, Pro:Con A/S, or its former subsidiaries or
affiliates, will be issued from the 92,000,000 shares of Merger Stock, so that
the 8,000,000 shares of the Subsidiary's stock held by SFAD will represent an 8%
ownership interest in a company with the same scope of operations as ProCon's
predecessor company.
INTERNET COMMERCE, INC. PROCON SYSTEMS ApS
By:_____________________________ By:_____________________________
Name:__________________________ Name:__________________________
Title:_________________________ Title:____________________________
