SHARE EXCHANGE AGREEMENT BY AND AMONG APPLIED DIGITAL SOLUTIONS, INC. AND THE FORMER SHAREHOLDERS OF DSD-HOLDING A/S April 12, 2006
Exhibit
2
BY
AND
AMONG
APPLIED
DIGITAL SOLUTIONS, INC.
AND
THE
FORMER SHAREHOLDERS OF DSD-HOLDING A/S
April
12,
2006
This
Share Exchange Agreement is entered into as of April 12, 2006, by and among
Applied Digital Solutions, Inc., a Missouri corporation (the "Company"
or
"ADSX"),
LANO
Holding ApS, Torsten Nordfjeld, Vaekstfonden and Parfait ApS, the former
shareholders of DSD-Holding A/S, a Danish corporation ("DSD")(the former
shareholders shall be referred to collectively as, the "Shareholders").
Preliminary
Statements
I. This
Agreement is entered into in connection with that certain Stock Purchase
Agreement, effective as of February 28, 2005, by and among the Company's
majority-owned subsidiary, Digital Angel Corporation, a Delaware corporation
("DOC"),
and
the Shareholders (the "Stock
Purchase Agreement"),
whereby DOC purchased DSD and its wholly-owned subsidiaries Daploma
International A/S and Digitag A/S, from the Shareholders. Defined
terms used in this Agreement but not expressly defined herein shall have the
meanings given such terms in the Stock Purchase Agreement.
II. Paragraph
1.4.3 of the Stock Purchase Agreement gives DOC the right to pay one-half of
the
Buyout Purchase Price in cash, and the remainder of the Buyout Purchase Price
in
shares of unregistered DOC Common Stock between the closing date of the Stock
Purchase Agreement and December 31, 2006. Based on further discussions between
the parties, in order to provide the Shareholders with assurance that they
will
receive the full value of the Purchase Price under the Stock Purchase Agreement,
the Company desires to issue to the Shareholders shares of ADSX Common Stock
to
be registered with the Commission in exchange for the unregistered shares of
DOC
Common Stock to be paid to the Shareholders pursuant to Paragraph 1.4.3 of
the
Stock Purchase Agreement.
III. The
Shareholders have represented to the Company that the DOC Shares (as defined
hereunder) will be transferred to the Shareholders by DOC in partial
satisfaction of the Buyout Purchase Price immediately prior to the Closing
on
the Closing Date.
IV. For
strategic investment purposes, the Company wishes to purchase the DOC Shares
from the Shareholders, in consideration for the ADSX Exchange Shares (as defined
hereunder) (which will be registered for resale pursuant to the provisions
of
the Securities Act) on the terms and subject to the conditions set forth in
this
Agreement.
Agreement
In
consideration of the preliminary statements and the respective mutual covenants,
representations and warranties herein contained, the parties hereto agree as
set
forth below.
ARTICLE
I
Definitions
In
addition to terms defined elsewhere in this Agreement or in the Stock Purchase
Agreement, the following terms when used in this Agreement shall have the
meanings indicated below:
“ADSX
Common Stock”
means
the common stock of ADSX, par value $.01 per share.
"ADSX
VWAP"
means,
for any date, the daily volume weighted average price of the ADSX Common Stock
for such date as reported by Bloomberg Financial, L.P. (based on a Trading
Day
from 9:30 a.m. ET to 4:02 p.m. Eastern Time) using the VAP (volume average
price) function.
“Agreement”
means
this Share Exchange Agreement together with any exhibits and schedules referred
to herein.
"Agreement
Effective Date"
means
the date of execution of this Agreement.
“Commission”
means
the Securities and Exchange Commission.
"DOC
Common Stock"
means
the common stock of DOC, par value $.005 per share.
"DOC
VWAP"
means,
for any date, the daily volume weighted average price of the DOC Common Stock
for such date as reported by Bloomberg Financial, L.P. (based on a Trading
Day
from 9:30 a.m. ET to 4:02 p.m. Eastern Time) using the VAP (volume average
price) function.
"Effective
Date"
means
the date the Registration Statement is first declared effective by the
Commission.
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended.
“Filing
Date”
means,
with respect to the Registration Statement filed hereunder, no later than the
20th
calendar
day following the Agreement Effective Date.
“Person”
means
any natural person, corporation, unincorporated organization, partnership,
association, joint stock company, joint venture, trust or government, or any
agency or political subdivision of any government or any other
entity.
“Registration
Statement”
means
the registration statement to be filed by the Company hereunder by Section
8.1,
subject to receipt of a certain waiver described herein, including the
Prospectus, amendments and supplements to such registration statement or
Prospectus, including pre- and post-effective amendments, if required, all
exhibits thereto, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
“SEC
Reports”
means
all reports required to be filed by the Company under the Exchange Act,
including pursuant to Section 13(a) or 15(d) thereof, for the one year preceding
the date hereof.
“Securities
Act”
means
the Securities Act of 1933, as amended.
"Trading
Day"
means a
day on which the ADSX Common Stock is traded on the Nasdaq SmallCap Market,
or
if the ADSX Common Stock is not listed on the Nasdaq SmallCap Market, a day
on
which the ADSX Common Stock is traded in the over-the-counter market, as
reported by the OTC Bulletin Board or is quoted in the over-the-counter market
as reported by the National Quotation Bureau Incorporated.
ARTICLE
II
Purchase
of Securities; Consideration
2.1
Issuance
of Securities.
On and
subject to the terms and conditions set forth herein, on the Closing Date,
the
Shareholders shall transfer to the Company, and the Company shall acquire from
the Shareholders, all of the Shareholders' right, title and interest in and
to
that number of shares of DOC Common Stock equal to U.S. $1,000,000 (the
"DOC
Shares")
divided by the average of the DOC VWAP for the ten (10) Trading Days prior
to
payment, pursuant to Section 1.4.3 of the Stock Purchase Agreement.
2.2
Consideration.
The
purchase price for the DOC Shares shall be U.S. $1,000,000 ("Purchase
Price"),
payable by the Company on the Closing Date (as defined hereunder) by delivery,
in the aggregate, of that number of shares of ADSX Common Stock (the
"ADSX
Exchange Shares")
equal
to the Purchase Price divided by the ADSX Per Share Exchange Price (as defined
hereunder).
2.3
Place
of Closing; Closing Date.
The
closing of the issuance and exchange of the DOC Shares under this Agreement
(the
"Closing")
will
take place at the offices of the Company or such other location as may be
mutually agreed by the Company and the Shareholders, and shall occur on the
business day following the Effective Date (the "Closing
Date").
2.4
Closing
Price.
The
number of ADSX Exchange Shares issuable under this Agreement on the Closing
Date
shall equal U.S. $1,000,000 divided by the average of the ADSX VWAP for the
two
(2) Trading Days immediately preceding (and not including) the Closing Date
(the
"ADSX
Per Share Exchange Price");
provided,
however,
in the
event that the ADSX Per Share Exchange Price is less than $2.64 (the
"Floor
Price"),
then
the Company shall have the option on one occasion, which may be exercised or
waived in its sole discretion, to postpone the Closing Date, for a period not
to
exceed thirty calendar (30) days, such alternative closing date within the
thirty (30) day postponement period as may be determined by the Company in
its
sole discretion.
2.5
Deliveries
of DOC Shares and ADSX Exchange Shares on the Closing Date.
Subject
to the terms and conditions of this Agreement and including but not limited
to
the closing requirements of Section 7.1, on the Closing Date: (i) the
Shareholders will deliver to the Company, that number of DOC Shares being issued
to them as calculated in Section 2.1, and (ii) the Company will, upon receipt
of
the DOC Shares, deliver to the Shareholders, that number of ADSX Exchange Shares
being exchanged in consideration for the DOC Shares as calculated in Sections
2.2 and 2.4.
2.7
Fractional
Shares.
The
Shareholders and the Company shall receive a whole number of shares of ADSX
Exchange Shares and DOC Shares, respectively, and no fractional shares
of
ADSX
Exchange Shares and DOC Shares shall be issued. In lieu of fractional shares,
the Shareholders and the Company shall deliver to the other respective party,
cash or a company check in the amount of the fractional share(s) otherwise
issuable to the Company and the Shareholders by the other party based on the
closing price of the ADSX Exchange Shares or DOC Shares as calculated in
Sections 2.1 and 2.4, respectively.
ARTICLE
III
Representations
and Warranties of the Shareholders
In
order
to induce the Company to enter into this Agreement and to consummate the
transaction contemplated hereby, the Shareholders make the representations
and
warranties set forth below to the Company.
3.1
Organization;
Standing and Power.
The
Shareholders LANO Holding ApS, Parfait ApS and Vaekstfonden are business
entities duly formed, validly existing and in good standing under the laws
of
the respective jurisdictions of their formation with the requisite power and
authority to own and use their properties and assets and to carry on their
businesses as currently conducted.
3.2
Authorization;
Enforceability.
The
execution, delivery and performance of this Agreement by the Shareholders and
the consummation by the Shareholders of the transactions contemplated hereby
have been duly authorized by all requisite corporate action. This Agreement
has
been duly executed and delivered by the Shareholders, and constitutes the legal,
valid and binding obligation of the Shareholders, enforceable in accordance
with
its terms, except to the extent that its enforcement is limited by bankruptcy,
insolvency, reorganization or other laws relating to or affecting the
enforcement of creditors’ rights generally and by general principles of
equity.
3.3
No
Violation or Conflict.
The
execution, delivery and performance of this Agreement by the Shareholders and
the consummation by the Shareholders of the transactions contemplated hereby:
(a) do not and will not violate or conflict with any provision of law or
regulation, or any writ, order, judgment or decree of any court or governmental
or regulatory authority, or any provision of the Shareholders' governing
documents; and (b) do not and will not, with or without the passage of time
or
the giving of notice, result in the breach of, or constitute a default, cause
the acceleration of performance, or require any consent under, or result in
the
creation of any lien, charge or encumbrance upon any property or assets of
the
Shareholders pursuant to any material instrument or agreement to which the
Shareholders are a party or by which the Shareholders or their properties may
be
bound or affected, other than instruments or agreements as to which consent
shall have been obtained at or prior to the Closing Date.
3.4
Consent
of Governmental Authorities.
Other
than in connection with the Securities Act, the Exchange Act and the rules
of
any applicable stock exchange, no consent, approval or authorization of, or
registration, qualification or filing with any federal, state or local
governmental or regulatory authority is required to be made by the Shareholders
in connection with the execution, delivery or performance by the Shareholders
of
this Agreement or the consummation by the Shareholders of the transactions
contemplated hereby.
3.5
No
Encumbrances.
When
transferred to the Company in accordance with this Agreement, the DOC Shares
shall be free and clear of all liens and encumbrances.
ARTICLE
IV
Representations
and Warranties of the Company
In
order
to induce the Shareholders to enter into this Agreement and to consummate the
transaction contemplated hereby, the Company makes the representations and
warranties set forth below to the Shareholders.
4.1
Organization;
Standing and Power.
The
Company is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Missouri with the requisite corporate
power and authority to own and use its properties and assets and to carry on
its
business as currently conducted.
4.2
Authorization;
Enforceability.
The
execution, delivery and performance of this Agreement by the Company and the
consummation by the Company of the transactions contemplated hereby have been
duly authorized by all requisite corporate action. This Agreement has been
duly
executed and delivered by the Company, and constitutes the legal, valid and
binding obligation of the Company, enforceable in accordance with its terms,
except to the extent that its enforcement is limited by bankruptcy, insolvency,
reorganization or other laws relating to or affecting the enforcement of
creditors’ rights generally and by general principles of equity.
4.3
No
Violation or Conflict.
The
execution, delivery and performance of this Agreement by the Company and the
consummation by the Company of the transactions contemplated hereby: (a) do
not
and will not violate or conflict with any provision of law or regulation, or
any
writ, order, judgment or decree of any court or governmental or regulatory
authority, or any provision of the Company's Articles of Incorporation or
Bylaws; and (b) do not and will not, with or without the passage of time or
the
giving of notice, result in the breach of, or constitute a default, cause the
acceleration of performance, or require any consent under, or result in the
creation of any lien, charge or encumbrance upon any property or assets of
the
Company pursuant to any material instrument or agreement to which the Company
is
a party or by which the Company or its properties may be bound or affected,
other than instruments or agreements as to which consent shall have been
obtained at or prior to the Closing Date.
4.4
Consent
of Governmental Authorities.
Other
than in connection with the Securities Act, the Exchange Act and the rules
of
the Nasdaq SmallCap Market, no consent, approval or authorization of, or
registration, qualification or filing with any federal, state or local
governmental or regulatory authority is required to be made by the Company
in
connection with the execution, delivery or performance by the Company of this
Agreement or the consummation by the Company of the transactions contemplated
hereby.
4.5
Validity
of Securities.
When
issued in accordance with this Agreement, the ADSX Exchange Shares shall be
duly
and validly authorized, legally issued and outstanding, fully paid and
non-assessable, shall not have been issued in violation of the preemptive rights
of any Person, and free and clear of all liens and encumbrances.
4.6
Absence
of Material Adverse Changes; Disclosure of Material Non-Public Information;
SEC
Reports.
Since
the filing by the Company of its Annual Report on Form 10-K for the fiscal
year
ended December 31, 2005, with the Commission, there have been no material
adverse changes to the assets, liabilities, business or condition (financial
or
otherwise) of the Company, and all disclosures of material non-public
information required pursuant to the Securities Act and the Exchange Act have
been made accordingly. As of their respective dates, the SEC Reports complied
in
all material respects with the requirements of the Securities Act and the
Exchange Act and the rules and regulations of the Commission promulgated
thereunder, and none of the SEC Reports, when filed, contained any untrue
statement of a material fact or omitted to state a material fact required to
be
stated therein or necessary in order to make the statements therein, in light
of
the circumstances under which they were made, not misleading.
ARTICLE
V
Covenants
5.1
Confidentiality.
Except
as otherwise required in the performance of obligations under this Agreement
and
except as otherwise required by law, any nonpublic information received by
a
party or its advisors from the other party shall be kept confidential and shall
not be used or disclosed for any purpose other than in furtherance of the
transaction contemplated by this Agreement. The obligation of confidentiality
shall not extend to information (a) which is or shall become generally available
to the public other than as a result of an unauthorized disclosure by a party
to
this Agreement or a person to whom a party has provided such information, (b)
which is or becomes known by or available to a party to this Agreement on a
nonconfidential basis prior to its disclosure by one party to the other pursuant
to this Agreement, or (c) which is or becomes available to a party on a
nonconfidential basis from a source other than a party to this Agreement. Upon
termination of this Agreement, each party shall promptly return any confidential
information received from the other party and, upon request, shall destroy
any
copies of such information in its possession. The covenants of the parties
contained in this Section 5.1 shall survive any termination of this
Agreement.
5.2
Notification.
Each
party to this Agreement shall promptly notify the other parties in writing
of
the occurrence, or pending or threatened occurrence, of any event that would
constitute a breach or violation of this Agreement by any party or that would
cause any representation or warranty made by the notifying party in this
Agreement to be false or misleading in any respect. Any such notification shall
not limit or alter any of the representations, warranties or covenants of the
parties set forth in this Agreement nor any rights or remedies a party may
have
with respect to a breach of any representation, warranty or
covenant.
5.3
Further
Assurances.
The
parties hereto shall deliver any and all other instruments or documents required
to be delivered pursuant to, or necessary or proper in order to give effect
to,
all of the terms and provisions of this Agreement including, without limitation,
all necessary stock powers and such other instruments of transfer as may be
necessary or desirable to transfer ownership of the DOC Shares and the ADSX
Exchange Shares and to consummate the transactions
contemplated by this Agreement.
ARTICLE
VI
Additional
Agreements
6.1
Survival
of the Representations and Warranties.
The
representations and warranties of the Company and of the Shareholders set forth
in this Agreement shall terminate two years following the Closing Date (or
the
alternative closing date).
6.2
Investigation.
The
representations, warranties, covenants and agreements set forth in this
Agreement shall not be affected or diminished in any way by any investigation
(or failure to investigate) at any time by or on behalf of the party for whose
benefit such representations, warranties, covenants and agreements were made.
All statements contained herein or in any schedule, certificate, exhibit, list
or other document delivered pursuant hereto or in connection with the
transactions contemplated hereby shall be deemed to be representations and
warranties for purposes of this Agreement.
6.3
Arbitration.
Any and
all claims, disputes or matters in controversy arising under this Agreement
which the parties are unable to settle by mutual agreement shall be resolved
by
binding arbitration pursuant to the Commercial Arbitration Rules of the American
Arbitration Association as in force at the time (“AAA”).
(a) A
party
which desires to submit a claim, dispute or controversy to binding arbitration
under this Section 6.3 shall so notify the other parties, and if after 30 days
from the date of such notice the claim, dispute or controversy remains
unsettled, any party may petition the AAA for arbitration of the claim, dispute
or controversy. Matters submitted to arbitration shall be resolved in accordance
with the decision of a panel of three arbitrators selected by the AAA. The
arbitrators shall be experienced in the resolution of commercial disputes
arising in the context of negotiated acquisitions of businesses, and the place
of arbitration shall be in Palm Beach County, Florida.
(b) The
three
arbitrators shall investigate the facts and shall hold hearings at which the
parties to this Agreement may present evidence and arguments, be represented
by
counsel and conduct cross-examination. In determining any question, matter
or
dispute before them, the arbitrators shall apply the provisions of this
Agreement and shall not have the power to add to, modify or change any of the
provisions of this Agreement. The three arbitrators shall render a written
decision upon the matter presented to them by a majority vote within 90 days
after the date on which the hearings and presentation of evidence are concluded,
unless a longer period is provided under the rules of the AAA. The decision
rendered by the arbitrators shall be final and binding on, and unappealable
by,
the parties. Judgment upon the decision rendered in such arbitration may be
entered by any court having jurisdiction thereof. No party to an arbitration
proceeding shall be considered in default hereunder during the pendency of
arbitration proceedings relating to a disputed default. If the three arbitrators
fail to render a timely decision, then, to the extent permitted by law, any
party shall have the right to institute an action or proceeding in such court
as
shall be appropriate in the circumstances, and, upon the institution of such
action, the arbitration proceeding shall be terminated and shall be of no
further force and effect. The arbitrators shall determine in what proportion
the
parties shall bear the fees and expenses of the arbitrators, and each party
shall otherwise bear its own fees and expenses, including expenses of legal
counsel and other advisors or consultants. It is the intention of the parties
that arbitration as described above be the sole and exclusive means available
to
them for
the
resolution of claims, disputes or matters in controversy arising under this
Agreement, other than claims, disputes and matters arising under those
provisions referred to in the first sentence of this Section 6.3, and only
in
the event that the arbitrators fail to render a decision in accordance with
the
foregoing provisions shall a party have the right to institute legal action
with
respect to such claim, dispute or matter. Accordingly, it shall be a complete
defense to any action instituted by a party with respect to a claim, dispute
or
matter in controversy under this Agreement that such claim, dispute or matter
has not first been submitted to arbitration in accordance with the foregoing
provisions.
ARTICLE
VII
Closing;
Conditions Precedent
7.1
Closing.
All
proceedings to be taken and all documents to be executed on the Closing Date
shall be deemed to have been taken, delivered and executed simultaneously,
and
no proceeding shall be deemed taken nor documents deemed executed or delivered
until all have been taken, delivered and executed. On the Closing Date, the
Shareholders shall deliver, or cause to be delivered, to the Company: (i) the
DOC Shares in accordance with the procedure described in Section 2.5, free
and
clear of any and all claims, liens, charges, security interests, pledges or
encumbrances of any nature whatsoever and together with all accrued benefits
and
rights attaching thereto; (ii) a certificate as of a recent date as to the
good
standing of the corporate Shareholders in their respective jurisdictions of
formation; (iii) such other documents as may be specified, or required to
satisfy the conditions set forth, in Sections 7.2 and 7.3; and (iv) such other
documents and instruments as the Company may reasonably request. On the Closing
Date, the Company shall deliver to the Shareholders: (i) the ADSX Exchange
Shares in accordance with the procedure described in Section 2.5, free and
clear
of any and all claims, liens, charges, security interests, pledges or
encumbrances of any nature whatsoever and together with all accrued benefits
and
rights attaching thereto; (ii) certificate of the Secretary of State of Missouri
as of a recent date as to the good standing of the Company and its Articles
of
Incorporation, as amended; (iii) such other documents as may be specified,
or
required to satisfy the conditions set forth, in Sections 7.2 and 7.3; and
(iv)
such other documents and instruments as the Shareholders may reasonably
request.
7.2
Conditions
Precedent to the Obligations of the Company.
Unless
waived in writing by the Company, all of the obligations of the Company under
this Agreement are subject to the satisfaction at or prior to the Closing Date
(or any alternative closing date) of each and every one of the following
conditions.
(a) Representations
and Warranties True.
Each of
the representations and warranties of the Shareholders contained herein or
in
any certificate or other document delivered pursuant to this Agreement or in
connection with the transaction contemplated hereby shall be true and correct
in
all material respects (except for representations and warranties which are
by
their terms qualified by materiality, which shall be true and correct in all
respects) as of the Closing Date with the same force and effect as though made
on and as of such date.
(b) Performance.
The
Shareholders shall have performed and complied in all material respects with
all
of the agreements, covenants and obligations required under this Agreement
to be
performed or complied with by them on or prior to the Closing Date.
(c) Consents.
The
Shareholders shall have obtained all material authorizations, consents, waivers
and approvals as may be required to consummate the transaction contemplated
by
this Agreement.
(d) Board
Approval.
The
Board of Directors or other applicable governing authority of each of the
Shareholders shall have approved the execution, delivery and performance of
this
Agreement by the Shareholders.
(e) Shareholders'
Certificate.
The
Shareholders shall have delivered to the Company a certificate executed by
the
Company, dated the Closing Date, certifying in such detail as the Company may
reasonably request, that the conditions specified in Sections 7.2(a), (b) and
(c) above have been fulfilled and as to such other matters as the Company may
reasonably request.
(f) Written
Authorization.
The
Shareholders' Representative (as defined hereunder) or the Shareholders shall
have delivered to the Company on or prior to the Closing Date, the Authorization
(as defined hereunder) executed by each of Shareholders.
(g) Transfer
of DOC Shares.
The
DOC
Shares shall have been transferred to the Shareholders by DOC in partial
satisfaction of the Buyout Purchase Price immediately prior to the Closing
on
the Closing Date.
7.3
Conditions
Precedent to the Obligations of the Shareholders.
All of
the obligations of the Shareholders under this Agreement are subject to the
satisfaction at or prior to the Closing Date (or the alternative closing date)
of each and every one of the following conditions.
(a) Representations
and Warranties True.
Each of
the representations and warranties of the Company contained herein or in any
certificate or other document delivered pursuant to this Agreement or in
connection with the transaction contemplated hereby shall be true and correct
in
all material respects (except for representations and warranties which are
by
their terms qualified by materiality, which shall be true and correct in all
respects) as of the Closing Date with the same force and effect as though made
on and as of such date.
(b) Performance.
The
Company shall have performed and complied in all material respects with all
of
the agreements, covenants and obligations required under this Agreement to
be
performed or complied with by it on or prior to the Closing Date.
(c) Consents.
The
Company shall have obtained all material authorizations, consents, waivers
and
approvals as may be required to consummate the transaction contemplated by
this
Agreement.
(d) Company
Board Approval.
The
Board of Directors of the Company shall have approved the execution, delivery
and performance of this Agreement by the Company.
(e) Company's
Certificate.
The
Company shall have delivered to the Shareholders a certificate executed by
the
Company, dated the Closing Date, certifying in such detail as the Shareholders
may reasonably request, that the conditions specified in Sections 7.3(a), (b)
and (c) above have been fulfilled and as to such other matters as the
Shareholders may reasonably request.
ARTICLE
VIII
Registration
8.1
Shareholders'
Registration Rights.
On or
prior to the Filing Date, the Company shall prepare and file with the Commission
the Registration Statement covering the resale of the ADSX Exchange Shares
for
an offering to be made under the Securities Act, or include the ADSX Exchange
Shares by piggyback on such other registration statement as may be filed by
the
Company. The Registration Statement shall be prepared on Form S-3 and shall
contain a “Plan of Distribution” approved by both the Shareholders and the
Company. Subject to the terms of this Agreement and the piggyback registration
option described herein, the Company shall use its best efforts to cause the
Registration Statement to be declared effective under the Securities Act as
promptly as possible after the filing thereof, and shall use its best efforts
to
keep such Registration Statement continuously effective under the Securities
Act
until the date when all ADSX Exchange Shares covered by the Registration
Statement have been sold or may be sold without volume restrictions pursuant
to
Rule 144(k) as determined by counsel to the Company pursuant to a written
opinion letter to such effect, addressed and acceptable to the Company's
transfer agent. The Company shall notify the Shareholders via facsimile or
e-mail, followed by regular U.S. Mail, of the effectiveness of the Registration
Statement immediately after the Company receives notification of the
effectiveness of such Registration Statement from the Commission.
ARTICLE
IX
Termination
9.1
Termination.
This
Agreement may be terminated as follows: (i) by mutual written consent of the
parties at any time prior to the Closing Date; or (ii) the Company or the
Shareholders may terminate this Agreement by giving written notice to the other
party at any time on or prior to the Closing Date if either the Company or
the
Shareholders have breached any representation, warranty or covenant contained
in
this Agreement in any material respect.
9.2
Effect
of Termination.
If the
Company or the Shareholders terminate this Agreement pursuant to Section 9.1(ii)
above, all rights and obligations of the parties hereunder shall terminate
without any liability of any party to the other party.
ARTICLE
X
Shareholders'
Representative
10.1 Shareholders'
Representative.
Pursuant to a power-of-attorney or other authorization (the "Authorization")
to be
delivered to the Company on or prior to the Closing
Date,
each of the Shareholders has made, constituted, appointed and validly authorized
Lasse Nordfjeld as a representative of the Shareholders (the "Shareholders'
Representative")
for
all purposes under this Agreement.
10.2
The
Shareholders' Representative is authorized, on behalf and in the name of such
Shareholder, to:
(a)
Receive all notices or documents given or to be given to him pursuant hereto
or
in connection herewith. The Shareholders' Representative promptly shall forward
a copy of such notice or process to each Shareholder;
(b)
Deliver to the Company at the Closing all certificates and documents to be
delivered to by the Shareholders pursuant to this Agreement, together with
any
other certificates and documents executed by each Shareholder and deposited
with
the Shareholders' Representative for such purpose; and
(c)
Take
such action on behalf of the Shareholders as the Shareholders' Representative
may deem appropriate in respect of all such other matters as the Shareholders'
Representative may deem necessary or appropriate to consummate this Agreement
and the transactions contemplated hereby.
The
appointment or authorization of the Shareholders' Representative pursuant to
the
Authorization is irrevocable and is deemed coupled with an interest and any
action taken by Shareholders' Representative pursuant to this Section 10 or
under this Agreement shall be effective and absolutely binding on each
Shareholder notwithstanding any contrary action of or direction from a
Shareholder. The death or incapacity of any Shareholder shall not terminate
the
prior authority and agency of the Shareholders' Representative. The
Shareholders' Representative agrees that the Company shall not be liable for
any
actions or claims against the Company or any other party related to the
Shareholders' Representative representations in this Section 10 or in connection
with the performance of his duties on behalf of the Shareholders under this
Agreement or in connection with this Agreement.
ARTICLE
XI
Miscellaneous
11.1
Notices.
Any
notice, demand, claim or other communication under this Agreement shall be
in
writing and shall be delivered personally or sent by certified mail, return
receipt requested, postage prepaid, or sent by facsimile or prepaid overnight
courier to the parties at the addresses set forth below their names on the
signature pages of this Agreement (or at such other addresses as shall be
specified by the parties by like notice). Such notices, demands, claims and
other communications shall be deemed given when actually received or, (a) in
the
case of delivery by overnight service with guaranteed next day delivery, the
next day or the day designated for delivery, (b) in the case of certified U.S.
mail, five days after deposit in the U.S. mail, or (c) in the case of facsimile,
the date upon which the transmitting party received confirmation of receipt
by
facsimile, telephone or otherwise.
11.2
Entire
Agreement.
This
Agreement contains every obligation and understanding between the parties
relating to the subject matter hereof and merges all prior discussions,
negotiations and agreements, if any, between them, and none of the parties
shall
be bound by any conditions, definitions, understandings, warranties or
representations other than as expressly provided or referred to
herein.
11.3
Binding
Effect.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors, heirs, personal representatives, legal
representatives, and permitted assigns.
11.4
Assignment.
This
Agreement may not be assigned by any party without the written consent of the
other party.
11.5
Waiver
and Amendment.
Any
representation, warranty, covenant, term or condition of this Agreement which
may legally be waived, may be waived, or the time of performance thereof
extended, at any time by the party hereto entitled to the benefit thereof,
and
any term, condition or covenant hereof (including, without limitation, the
period during which any condition is to be satisfied or any obligation
performed) may be amended by the parties hereto at any time. Any such waiver,
extension or amendment shall be evidenced by an instrument in writing executed
on behalf of the appropriate party by its Chairman, President or any Vice
President or other person, who has been authorized by its Board of Directors
to
execute waivers, extensions or amendments on its behalf. No waiver by any party
hereto, whether express or implied, of its rights under any provision of this
Agreement shall constitute a waiver of such party’s rights under such provisions
at any other time or a waiver of such party’s rights under any other provision
of this Agreement. No failure by any party hereto to take any action against
any
breach of this Agreement or default by another party shall constitute a waiver
of the former party’s right to enforce any provision of this Agreement or to
take action against such breach or default or any subsequent breach or default
by such other party.
11.6
Severability.
In the
event that any one or more of the provisions contained in this Agreement shall
be declared invalid, void or unenforceable, the remainder of the provisions
of
this Agreement shall remain in full force and effect, and such invalid, void
or
unenforceable provision shall be interpreted as closely as possible to the
manner in which it was written.
11.7
Expenses.
Each
party agrees to pay, without right of reimbursement from the other party, the
costs incurred by it incident to the performance of its obligations under this
Agreement and the consummation of the transactions contemplated hereby,
including, without limitation, costs incident to the preparation of this
Agreement, and the fees and disbursements of counsel, accountants and
consultants employed by such party in connection herewith.
11.8
Headings.
The
section and other headings contained in this Agreement are for reference
purposes only and shall not affect the meaning or interpretation of any
provisions of this Agreement.
11.9
Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original but all of which together shall constitute one and the same
instrument.
11.10
Time
of Essence.
Wherever time is specified for the doing or performance of any act hereunder,
time shall be considered of the essence.
11.11
Litigation;
Prevailing Party.
If,
notwithstanding the provisions of Section 6.3 regarding arbitration hereunder,
any litigation is instituted with regard to this Agreement, the prevailing
party
shall be entitled to receive from the non-prevailing party and the
non-prevailing party shall pay all reasonable fees and expenses of counsel
for
the prevailing party.
11.12
Injunctive
Relief.
It is
possible that remedies at law may be inadequate and, therefore, the parties
hereto shall be entitled to equitable relief including, without limitation,
injunctive relief, specific performance or other equitable remedies in addition
to all other remedies provided hereunder or available to the parties hereto
at
law or in equity.
11.13
Remedies
Cumulative.
No
remedy made available by any of the provisions of this Agreement is intended
to
be exclusive of any other remedy, and each and every remedy shall be cumulative
and shall be in addition to every other remedy given hereunder or now or
hereafter existing at law or in equity.
11.14
Governing
Law.
This
Agreement has been entered into and shall be construed and enforced in
accordance with the laws of the State of Florida without reference to the choice
of law principles thereof.
11.15
Jurisdiction
and Venue.
If,
notwithstanding the provisions of Section 6.3 regarding arbitration hereunder,
any litigation is instituted with regard to this Agreement, this Agreement
shall
be subject to the exclusive jurisdiction of the courts of Palm Beach County,
Florida. The parties to this Agreement agree that any breach of any term or
condition of this Agreement shall be deemed to be a breach occurring in the
State of Florida by virtue of a failure to perform an act required to be
performed in the State of Florida and irrevocably and expressly agree to submit
to the jurisdiction of the courts of the State of Florida for the purpose of
resolving any disputes among the parties relating to this Agreement or the
transactions contemplated hereby. The parties irrevocably waive, to the fullest
extent permitted by law, any objection which they may now or hereafter have
to
the laying of venue of any suit, action or proceeding arising out of or relating
to this Agreement, or any judgment entered by any court in respect hereof
brought in Palm Beach County, Florida, and further irrevocably waive any claim
that any suit, action or proceeding brought in Palm Beach County, Florida has
been brought in an inconvenient forum.
11.16
Participation
of Parties.
The
parties hereto acknowledge that this Agreement and all matters contemplated
herein, have been negotiated among all parties hereto and their respective
legal
counsel and that all such parties have participated in the drafting and
preparation of this Agreement from the commencement of negotiations at all
times
through the execution hereof. In the event an ambiguity or question of intent
or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the parties and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any of the provisions
of
this Agreement.
11.17
Preliminary
Statements.
The
parties hereto acknowledge that the preliminary statements contained herein
shall be deemed part of this Agreement and shall be binding upon the
parties.
[signatures
on following page]
[signatures
to the share exchange agreement]
IN
WITNESS WHEREOF, the parties hereto have each executed and delivered this
Agreement as of the day and year first above written.
APPLIED
DIGITAL SOLUTIONS, INC.
By:
/s/
Xxxx XxXxxxx
Name:
Xxxx XxXxxxx
Title:
Senior Vice President and Chief Financial Officer
Address
for Notice:
0000
Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn:
Xxxxx X. Xxxxxxxxx, CEO
Tel:
(000) 000-0000
Fax:
(000) 000-0000
With
a
copy
to:
Holland
& Knight LLP
000
Xxxxxxxx Xxxxxx
Xxxxx
0000
Xxxxx,
XX
00000
Attn:
Xxxxxx Xxxxxxx, Esq.
Tel:
(000) 000-0000
Fax:
(000) 000-0000
SHAREHOLDERS
LANO
Holding ApS
By:
/s/
Lasse Nordfjeld
Name:
Lasse Nordfjeld
Title:
Chief Executive Officer
/s/
Lasse Nordfjeld
Lasse
Nordfjeld, individually and
as
the
Shareholders' Representative
Address
for Notice:
00
Xxxxxxxxxxxx
XX-0000
Xxxxxxxxxxx
Attn:
Lasse Nordfjeld
Tel:
[•]
Fax:
[•]
With
a
copy
to:
Lassen
& Xxxxxx
00
Xxxxxxxxxx
XX-0000
Xxxxxxxxxx K
Attn:
Xxxxx Xxxxxxx
Tel:
00
00 00 00
Fax:
00
00 00 00
