EXHIBIT NUMBER 10.1
BINDING AGREEMENT
March 18, 2008
ATTN: ▇▇▇▇▇▇ ▇▇▇▇
RE: Asset Purchase
Dear Stuart,
The purpose of this letter (the "Letter") is to set forth certain binding
understandings between FTS Group, Inc. and OTG Technologies, Inc. a newly
formed wholly-owned subsidiary of FTS Group, Inc. (Company was formed to
facilitate the transaction, hereafter referred to as "FTS") and On The Go
HealthCare, Inc. DBA On The Go Technologies, Inc. (hereafter referred to as
"OTG") regarding the sale of selected assets owned by OTG as described in more
detail on exhibit A (here after referred to as the "ASSETS"), assumption of
certain debt of OTG as described in more detail on Exhibit B, the assumption
of certain contracts of OTG as described in more detail on Exhibit C,
Confidentiality and Non-Competition Agreement as described in more detail on
Exhibit D, and a Promissory Note (the "Note") issued to the Company attached
as Exhibit E.
In consideration of the significant costs to be borne by FTS in pursuing this
proposed transaction and further in consideration of their mutual undertakings
as to the matters described herein, upon execution of this Letter or
counterparts thereof, the following paragraphs of this letter shall constitute
the binding provisions of the transaction.
1. Transaction. FTS has acquired the assets listed on Exhibit A for a
combination of a note and debt assumption as set forth in the exhibits.
2. Purchase Price. Based on the information currently known by FTS Group, Inc.
on the date hereof, the total deal value is described in detail below in
US dollars:
Deal Value $4,000,000
Assumed Vendor Debt $2,900,000 (Subject to Adjustment)
OTG Note (Exhibit D) $1,100,000 (Subject to Adjustment)
3. Representations. OTG represents they are the sole owner of the ASSETS and
has full authority to enter into a sale transaction with FTS, it is
understood that Laurus Master Fund, Ltd. has 1st security interest in the
Assets of the OTG until such time as their Revolving Line of Credit is paid
in full. Both FTS and OTG agree to work in good faith through the
outstanding issues required to complete all closing documents. Both parties
agree that as of March 18, 2008 the transaction is deemed closed. FTS
represents that it will provide Laurus Master Fund, Ltd with a UCC on its
new subsidiary OTG Technologies Group, Inc. a Florida Corp. if required.
FTS represents that all Accounts Receivables prior to the closing date of
March 18, 2008 are the property of Laurus Master Fund, Ltd.
4. Closing Date. The closing date is March 18, 2008.
5. Definitive Agreement and Note Agreement. FTS and OTG intend promptly to
complete the asset purchase agreement and note agreement, the execution of
which has been approved by the board of directors of FTS Group and OTG and
will contain comprehensive representations, warranties, indemnities,
conditions and agreements by OTG and FTS. It is anticipated that the
definitive agreement will be completed by the proposed closing date,
unless an extension is granted and submitted to each party in writing.
6. Non Competition Agreement. Will be included in the purchase agreement.
7. Access. Seller shall cause OTG to provide to FTS access to OTG' books and
records relating to the acquired ASSETS and shall cause accountants and
other agents and representatives (collectively, "Representatives") of OTG
to cooperate fully with FTS and its representatives in connection with FTS'
acquisition review of the ASSETS and any of the assets, contracts,
liabilities, operations, records and other aspects of their business
relating to the transaction and potential audit requirements.
8. Fees and Expense. FTS is responsible for all of its fees and expenses
relating to its due diligence, accounting, legal, SEC or other costs
associated with the proposed transaction. OTG is responsible for all of
its fee's and expenses relating to the transaction.
9. Entire Agreement. This letter constitutes the entire agreement between the
parties, superceding all prior oral or written agreements, understandings,
representations and warranties, and courses of conduct and dealing between
the parties on the subject matter hereof. Except as otherwise provided
herein, the binding provisions may be amended or modified only by a writing
executed by both parties.
10. Governing Law. The binding provisions shall be governed by and construed in
accordance with the laws of the State of Florida.
Please sign and date this letter in the space provided below to confirm the
mutual agreements set forth in this binding letter of intent and return a
signed copy to the undersigned.
Signature Page and Contact Information
BUYER
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer,
FTS Group, Inc.
Contact information:
▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
SELLER
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Chairman and CEO
Contact information:
Facsimile: ▇▇▇ ▇▇▇ ▇▇▇▇
Exhibit A
(Description of ASSETS)
1. Goodwill
2. The trade name of On The Go Technologies Group
3. Assumed contracts
4. Assumed employees
5. All related trade contacts
Exhibit B
1. Approximately $2,900,000 outstanding vendor debt as listed on the
accounts payable which include all invoices that are dated prior to
March 17, 2008.
EXHIBIT C
Contracts
1. All contracts in the name of On The Go Technologies Group related to
the Value-Added Reseller business as follows:
* HP (Gold certified partner)
* IBM - Premier Business Partner (Advanced service partner)
* Lenovo
* Lexmark service partner
* Xerox
* Cisco Premier authorized
* Microsoft Gold Certified
* OKI Data certified
* Toshiba Notebook certified
* Apple
* Isilon
* Alias
* Symantec
* Extreme
* Fortinet
* VM ▇▇▇▇
* Autodesk
* Altiris
* Pano
* Codonix
* Rimage
* Acuo
* Equal Logics
* Viatronix
* Pacsgear
* Bluearc
* Softimage
* Foundry
* Extreme
* Final Cut Pro
* AJA
* Automatic Duck
* Avid Xpress pro
* Convergent Design
* Massive
* The Foundry
* Tactic
* Logic Pro
* Digidesign
* Xinet
* Asante
* Adic
* X-rite
* Sony
* Epson
* Xyratex
* Lacie
EXHIBIT D
CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
B E T W E E N
ON THE GO HEALTHCARE INC., operating as
ON THE GO TECHNOLOGIES GROUP
(hereinafter referred to as the "Company")
- and -
FTS GROUP operating as
ON THE GO TECHNOLOGIES GROUP INC.
(hereinafter referred to as the "Purchaser")
WHEREAS the Company is engaged in the business of selling computer hardware,
software, supplies and services to customers across Canada, the United States
and abroad;
AND WHEREAS the Company has offered to sell the operations to the Purchaser
and the Company will be privy to a great deal of confidential information,
the disclosure of any of which could be very harmful to the Purchaser;
THEREFORE, for good and valuable consideration, receipt of which is
acknowledged, the Company agrees as follows:
Article 1 - Confidential Information
1.01 The following constitutes confidential information belonging to the
Purchaser:
a) all customer lists, customer account information, supplier account
information, supplier lists, invoice schedules, commission
schedules, pricing policies, discount policies, and the terms and
conditions of all contracts entered into by the Company with both
customers and suppliers;
b) the methods, techniques, incentives, devices and all associated
information used by the Company to secure suppliers or attract
customers to the Company;
c) any intellectual property including, but not limited to, computer
hardware development, computer software development, including
programming code or computer internet web design, produced or
developed by the Purchaser while he is engaged as a Purchaser of
the Company;
d) all technical information and data, and especially all computer
technology and data, whether maintained on paper or on computer
diskette;
e) all marketing plans and company sales strategies;
f) all of the Company's financial affairs;
g) all personnel information, especially the names of all purchasers,
the terms upon which they have agreed to provide their services and
the details of their remuneration; and
h) all other information which may reasonably be designated as
confidential by the Company.
Article 2 - Disclosure of Confidential Information Prohibited
2.01 Beginning on the Effective Date of this agreement and at all times
afterwards, the Company agrees that he/she will not use the confidential
information outlined above in Article 1 except to further the business of
the Company, and that he/she will refrain from disclosing any confidential
information to any person, business or corporation, other than to an
purchaser of the Company who requires access to such information to
perform his or her job, without prior written consent from the Company.
However, this restriction will not apply to any portion of the
confidential information which becomes generally known in the industry,
unless the Purchaser is responsible or partly responsible for making it
generally known.
2.02 The Purchaser agrees that all documents provided to him/her by the Company
remain the property of the Company.
2.03 The Purchaser acknowledges that he/she is not entitled to remove any
documents of any kind from the Company's premises, including any documents
containing confidential information.
Article 3 - Non-Solicitation
3.01 The Company agrees that during the term of this agreement with the
Purchaser, the Company shall not, either directly or indirectly, for
his/her own benefit or for the benefit of any person, enterprise or
entity, solicit or attempt to solicit the business of any customer of
the Purchaser
Article 4 - Non-Competition
4.01 The Company agrees that it will not, anywhere in Ontario, directly or
indirectly, carry on, act as agent for, be employed by or become otherwise
associated with a firm, business or corporation which competes with the
Purchaser for a period of two years from the Effective Date of this
agreement (the "Non-Compete Period")
4.02 It is further agreed that if the Company shall engage in any business in
violation of the obligations herein, the running of the Non-Compete Period
referred to above shall be interrupted until such violation shall cease
and shall begin again only when the Company is in compliance with the
provisions of the covenant whether voluntarily or pursuant to a court
order.
Article 5 - General
5.01 The Company agrees that this Agreement has been made for valuable
consideration and is legally binding.
5.02 The Company agrees that this Agreement is reasonable in the circumstances
and necessary to protect the financial interests of the Purchaser. If any
portions of this. Agreement are found not to be legally enforceable by a
Court, the remaining paragraphs or parts will nonetheless be considered to
be legally enforceable
5.03 The Company agrees that if he/she is in breach of Articles 2, 3 or 4
above, the Purchaser will be entitled to obtain a court injunction to
prevent the Company from breaching or continuing to breach such
provisions, in addition to any other remedies the Purchaser may have the
right to pursue.
5.04 The Company agrees that the Purchaser has given the Company a reasonable
opportunity to obtain independent legal advice before deciding to execute
this Agreement.
All of which is agreed this 17th day of March 2008 (the "Effective Date").
SIGNED, SEALED AND DELIVERED
) ON THE GO HEALTHCARE, INC.
)
) /s/ ▇▇▇▇▇▇ ▇▇▇▇
) ------------------------------------
) Name: ▇▇▇▇▇▇ ▇▇▇▇, CEO
) I have authority to bind the Company
)
)
) FTS Group, Inc.
)
) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
) ------------------------------------
) Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, CEO
) I have authority to bind the Company
EXHIBIT E
Promissory Note
FACE AMOUNT $1,100,000
INTEREST RATE 0%
NOTE NUMBER OTGST001
MATURITY DATE October 16, 2008
FOR VALUE RECEIVED, OTG Technologies Group, Inc. a Florida corporation (the
"Company"), and wholly-owned subsidiary of FTS Group, Inc., a Nevada
Corporation, hereby promises to pay On The Go Healthcare, Inc. (the "Holder")
by October 16, 2008, (the "Maturity Date"), or earlier, the amount of one
million one hundred thousand ($1,100,000) U.S. dollars, at such times and on
such terms and conditions as are specified herein (this "Note"). This Note is
non-interest bearing.
Article 1 Method of Payment
The Company may draw a check or wire transfer the funds for payment to the
order of the Holder of this Note. A check may be mailed to the Holder's
address as set forth in Article 5 herein.
Article 2 Payments
The Company shall make minimum monthly cash payments of $150,000 in immediately
available funds beginning on April 1, 2008 and the first of each month until
the note is paid in full (each a "Payment Date")
The Holder may at its sole option extend the first payment date in writing.
Notwithstanding any provision to the contrary in this Note, the Company may
pay in full to the Holder the Face Amount, or any balance remaining thereof,
in cash at any time and from time to time without penalty ("Prepayment").
Prepayments will be applied to the next payment due on the payment schedule
and subsequent payments afterwards.
Article 3 Conversion
Upon the happening of an Event of Default, as set forth in Article 4 below,
the Holder shall have the right to convert any unpaid amounts not to exceed
the Default Amount, as defined herein, into shares of restricted common stock
of FTS Group, Inc., at the Holder's sole option. The terms of conversion are
as follows:
3.01. Conversion Notice. Such conversion shall be effectuated by surrendering
to the Company, or its attorney, a facsimile or original of the signed
notice of conversion (the "Notice of Conversion"). The Notice of
Conversion shall set forth the cash amount to be converted (the
"Conversion Amount") which shall not exceed the Default Amount. The
restricted common stock to be issued shall be the Default Amount
divided by the Conversion Rate as set forth in Section 3.02 below. The
date on which the Notice of Conversion is effective ("Conversion Date")
shall be the date delivered pursuant to Article 5 herein. Notwithstanding
the foregoing, the Conversion Date shall be no sooner than the third
(3rd) business day following an Event of Default under this Note.
3.02. Conversion Rate. The conversion rate (the "Conversion Rate") shall be
95% of the lowest closing best bid price of FTS Group, Inc.'s common
stock on the three (3) trading days prior to the Conversion Date.
3.03. True-up. If after 180 calendar days following the issuance of common
stock pursuant to this Note, the value of the stock is less than the
Conversion Amount, and the Holder still holds the shares, then, the
Company will, within ten (10) business days following the 180th day,
pay the Holder in the Company's discretion in cash or common stock,
the amount by which such value falls short of the Conversion Amount.
Article 4 Defaults and Remedies
An "Event of Default" or "Default" occurs if the Company does not make the
minimum monthly cash payment within three (3) business days after the Payment
Date as set forth in Article 2 above. Such unpaid amounts which would
otherwise be due to the Holder on one or more Payment Dates shall be deemed
the "Default Amount."
Article 5 Notices
Any notices, consents, waivers or other communications required or permitted
to be given under the terms of this Note must be in writing and will be deemed
to have been delivered (i) upon receipt, when delivered personally; (ii) upon
receipt, when sent by facsimile (provided a confirmation of transmission is
mechanically or electronically generated and kept on file by the sending
party); or (iii) one (1) day after deposit with a nationally recognized
overnight delivery service, in each case properly addressed to the party to
receive the same at the following address:
If to the Holder:
▇▇▇▇▇▇ ▇▇▇▇
Chief Executive Officer
On The Go Healthcare, Inc.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Company:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Chief Executive Officer
FTS Group, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Article 6 Rules of Construction
In this Note, unless the context otherwise requires, words in the singular
number include the plural, and in the plural include the singular, and words
of the masculine gender include the feminine and the neuter, and when the tense
so indicates, words of the neuter gender may refer to any gender. The numbers
and titles of sections contained in the Note are inserted for convenience of
reference only, and they neither form a part of this Note nor are they to be
used in the construction or interpretation hereof. Wherever, in this Note, a
determination of the Company is required or allowed, such determination shall
be made by a majority of the Board of Directors of the Company and, if it is
made in good faith, it shall be conclusive and binding upon the Company and
the Holder.
Article 7 Senior Obligation
The Company shall cause this Note and all other existing Notes with the Holder
to be senior in right of payment to all other Indebtedness of the Company.
Article 8 Assignment
This Note is not assignable unless both parties agree in writing.
Article 9 Governing Law
The validity, terms, performance and enforcement of this Note shall be governed
and construed by the provisions hereof and in accordance with the laws of the
State of Florida applicable to agreements that are negotiated, executed,
delivered and performed solely in the State of Florida.
Article 10 Litigation
The parties to this agreement will submit all disputes arising under this
agreement to arbitration in Orlando, Florida before a single arbitrator of
the American Arbitration Association ("AAA"). The arbitrator shall be selected
by application of the rules of the AAA, or by mutual agreement of the parties,
except that such arbitrator shall be an attorney admitted to practice law in
the state of Florida. No party to this agreement will challenge the
jurisdiction or venue provisions as provided in this section.
IN WITNESS WHEREOF, the parties have duly executed this Note as of the date
first written above.
The Company: The Holder:
FTS Group, Inc. On The Go Healthcare, Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
-------------------------- --------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Chairman and Chief Title: Chairman and Chief
Executive Officer Executive Officer