EXHIBIT 10.52
CONTRIBUTION AND STOCK ACQUISITION AGREEMENT
CONTRIBUTION AND STOCK ACQUISITION AGREEMENT effective as of January 1,
2005 by and among DTLL, Inc., a Minnesota corporation (the "Corporation"), and
GS Pharma, Inc. ("GSPI").
W I T N E S S E T H:
WHEREAS, the Corporation desires to obtain from GSPI assignment of an
exclusive license agreement attached hereto as Exhibit 1 (the "License") in
consideration of 12,500,000 shares of common stock of the Corporation on the
terms and conditions contained herein;
NOW, THEREFORE, the parties hereto, intending to be bound hereby, do agree
as follows:
Authorized and Outstanding Capital Stock. The Corporation's Articles of
Incorporation (the "Articles") provide for, among other things, (a) 50,000,000
shares of common stock, par value $0.01 per share, and (b) 50,000,000 shares of
undesignated stock. As of the date of this Agreement, 825,693 shares of common
stock are issued and outstanding, no shares of undesignated stock have been
designated, no shares of undesignated stock are issued or outstanding, and
611,329 shares of common stock are reserved for issuance (as reported on Exhibit
2, attached), and no shares of undesignated stock are reserved for issuance.
Issuance of Stock; Closing.
Issuance of Stock. Subject to the terms and conditions hereof, the Corporation
has authorized the issuance to GSPI at the Closing (as such term is defined in
Section 2.4 hereof) of 12,500,000 shares of common stock (the "Stock") which
will represent approximately 94% of the shares of common stock issued and
outstanding immediately following the Closing.
Agreement to Assign License. Subject to the terms and conditions hereof, GSPI
agrees to assign all of its rights in the License to the Corporation.
Delivery of the Stock.
(a) At the Closing, or as soon as possible thereafter, the Corporation
shall deliver to GSPI a certificate or certificates, registered in
the name of GSPI, representing the total number of shares of Stock.
(b) Delivery of such certificates shall be made against receipt by the
Corporation of the assignment of the License ("License Assignment")
in the form attached hereto as Exhibit 2.3.
Closing. The assignment of the License and the issuance of the Stock
contemplated by this Agreement (the "Closing") shall take place at the offices
of GelStat Corporation, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, simultaneously with the execution and delivery of this Agreement (the
"Closing Date") or, if a physical stock certificate cannot be delivered
simultaneous with the closing, said stock certificate shall be issued as soon as
practical thereafter, with evidence of the proper authorizations and
instructions, satisfactory to GSPI, being evidenced at the closing.
Representations and Warranties of the Corporation.
The Corporation represents and warrants to GSPI to the best of its
actual knowledge (and the actual knowledge of its key officers) that except as
expressly set forth in the Disclosure Schedule attached hereto and made a part
hereof (the "Disclosure Schedule"), the following representations and warranties
are true and correct as of the date hereof.
Organization; Power and Authority; Qualifications. The Corporation is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Minnesota and has all requisite corporate power and authority to
own, lease and operate its properties, to carry on its business as presently
conducted and as proposed to be conducted and to carry out the transactions
contemplated by this Agreement and any Agreement incorporated herein by
reference to the extent such agreement requires action by the Corporation (as
hereinafter defined) (each, a "Transaction Document" and collectively, the
"Transaction Documents"). The Corporation is qualified to transact business as a
foreign corporation in those jurisdictions listed on Schedule 3.1(a) of the
Disclosure Schedule, which jurisdictions constitute all such jurisdictions where
the failure to be so qualified or licensed would have a material adverse effect
on the Corporation. A true, correct and complete copy of the Articles and the
Bylaws (the "Bylaws") of the Corporation, in each case, as amended to, and as in
effect on, the date hereof, are attached hereto as Exhibits 3.1.1 and 3.1.2,
respectively.
Authorization of the Transaction Documents, No Conflicts, etc. The execution,
delivery and performance by the Corporation of the Transaction Documents, have
been duly authorized by all requisite corporate action by the Corporation and
each such Transaction Document constitutes a valid and binding obligation of the
Corporation, enforceable against the Corporation in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or similar laws now or hereafter in effect relating to or limiting
creditors' rights generally, and general principles of equity, whether such
enforceability is considered in a proceeding at law or in equity. The execution,
delivery and performance by the Corporation of the Transaction Documents and the
consummation of the transactions contemplated thereby and compliance by the
Corporation with the provisions thereof and the issuance by the Corporation of
the Stock, will not:
(a) violate any provision of law, statute, rule or regulation, or any
ruling, writ, injunction, order, judgment or decree of any court,
administrative agency or other governmental body applicable to the
Corporation or any of its properties or assets where such violation,
conflict, breach or default would have a material adverse effect on
the operations, financial condition or prospects of the Corporation,
or
(b) conflict with or result in any breach of any of the terms,
conditions or provisions of, or constitute (with due notice or lapse
of time, or both) a default (or give rise to any right of
termination, cancellation or acceleration) under, or result in the
creation of any Encumbrance (as defined in Section 3.10 hereof) upon
any of the properties or assets of the Corporation under its
Articles or Bylaws, or any note, indenture, mortgage, lease
agreement or other contract, agreement or instrument to which the
Corporation is a party or by which any of its properties or assets
are bound or affected where (other than in the case of the Articles
and the Bylaws) such conflict, breach or default would have a
material adverse effect on the operations, financial condition or
prospects of the Corporation.
Authorization of the Stock. The authorization, issuance, and delivery of the
Stock has been duly authorized by all requisite corporate action of the
Corporation, and when issued, sold and delivered in accordance with this
Agreement for the consideration stated herein, the Stock will be validly issued
and outstanding, fully paid and nonassessable with no personal liability
attaching to the ownership thereof, and not subject to: (a) preemptive or any
other similar rights of the stockholders of the Corporation or others or (b) any
other restriction on transfer other than restrictions on transfer under
applicable state and federal laws. The terms, designations, powers, preferences
and relative, participating, optional and other special rights, and the
qualifications, limitations and restrictions, of the Stock are as stated in the
Articles.
No Governmental Consent or Approval Required. No consent, approval or
authorization of, or declaration to or filing with, any governmental or
regulatory authority is required for the valid authorization, execution and
delivery by the Corporation of the Transaction Documents or for the consummation
of the transactions contemplated thereby or for the valid authorization,
issuance and delivery by the Corporation of the Stock hereunder, other than (i)
those consents, approvals, authorizations, declarations or filings which have
been obtained or made, as the case may be, (ii) the filing of the Certificate
with the Minnesota Secretary of State, (iii) the filing of a Form D with the
Securities and Exchange Commission (the "SEC"), and (iv) filings pursuant to
state securities laws in connection with the issuance of the Stock. Except as
set forth in Section 3.4 of the Disclosure Schedule, no other third-party
consents or approvals are required for the valid authorization, execution and
delivery by the Corporation of the Transaction Documents or for the consummation
of the transactions contemplated thereby or for the valid authorization,
issuance and delivery by the Corporation of the Stock hereunder.
Subsidiaries; Equity Investments. Except as set forth in Section 3.5 of the
Disclosure Schedule, the Corporation does not own or control, directly or
indirectly, any capital stock or other proprietary interest or participation in
any corporation, association, trust, partnership, association or other entity.
Capitalization.
(a) The authorized capital stock of the Corporation immediately upon the
consummation at the Closing of the transactions contemplated hereby
shall be as set forth in Section 1 of the Agreement and the related
Exhibit 2.
(b) Section 3.6(b) of the Disclosure Schedule contains a list of all
outstanding warrants, options, agreements, convertible securities or
other commitments pursuant to which the Corporation is or may become
obligated to issue any shares of the capital stock or other
securities of the Corporation, which list names all persons entitled
to receive such shares or other securities immediately prior to the
consummation at the Closing of the transactions contemplated by the
Transaction Documents and the shares of capital stock or other
securities required to be issued thereunder. Except as set forth in
such Section 3.6(b) or as contemplated by the Transaction Documents,
there are no preemptive or similar rights to purchase or otherwise
acquire shares of the capital stock of the Corporation pursuant to
any provision of law, the Articles or Bylaws or any agreement to
which the Corporation is a party; and, there are no agreements,
restrictions or encumbrances (such as a right of first refusal,
right of first offer, proxy, voting trust, voting agreement, etc.)
with respect to the sale or voting of any shares of capital stock of
the Corporation (whether outstanding or issuable upon conversion or
exercise of outstanding securities). The Corporation has not been
and will not be, in violation of the Securities Act or any
applicable state securities or "blue sky" laws in connection with
the issuance of any shares of capital stock or other securities,
including the issuance of the Stock pursuant to this Agreement.
Financial Information.
(a) The balance sheet ("Balance Sheet") and the related statements of
income and retained earnings for Corporation as of the period ended
September 30, 2004 (the "Financial Statements") as contained in the
Corporation's report on Form 10-QSB filed with the SEC are certified
to be true, complete and accurate in all material respects.
(b) The Financial Statements and Balance Sheet (i) are in accordance
with the books and records of the Corporation, (ii) present fairly
the financial condition and the results of operations of the
Corporation as of the date and for the period indicated and (iii)
have been prepared in accordance with generally accepted accounting
principles consistently applied other than the absence of (i)
accruals generally made in full year financial statements and (ii)
notes to financial statements.
(c) The books of account, records and work papers of the Corporation up
to the date hereof are in all material respects complete and
correct, have been maintained in accordance with good business and
accounting practices and accurately reflect in all material respects
the basis for the financial position and results of operations of
the Corporation as set forth in the Financial Statements.
(d) All receivables listed in the Balance Sheet, including without
limitation the note receivable from Card Acquisition LLC, are
collectible in full at maturity.
Absence of Undisclosed Liabilities. Except as set forth in Section 3.8 of the
Disclosure Schedule, (a) the Corporation has no material liability of any nature
(matured or unmatured, fixed or contingent) which is not provided for or
disclosed on the Balance Sheet and (b) all liability reserves established by the
Corporation and set forth on the Balance Sheet were adequate in all material
respects for all such liabilities at that date. There were no loss contingencies
(as such term is used in Statement of Financial Accounting Standards No. 5
issued by the Financial Accounting Standards Board in March 1975) which were not
adequately provided for on the Balance Sheet.
Absence of Changes. Except as set forth in Section 3.9 of the Disclosure
Schedule since September 30, 2004, there has not been:
(a) any material adverse change in the financial condition, results of
operations, assets or liabilities of the Corporation;
(b) any borrowing or agreement to borrow funds or any liability or
obligation of any nature whatsoever (contingent or otherwise)
incurred by the Corporation, other than current liabilities or
obligations incurred in the ordinary course of business;
(c) any mortgage, pledge, transfer of a security interest in, or lien,
created by the Corporation, with respect to any of its material
properties or assets, except for liens for taxes not yet due or
payable;
(d) any waiver or cancellation by the Corporation of a valuable right or
claim of a material debt owed to it;
(e) any declaration, setting aside or payment or other distribution in
respect of any of the Corporation's capital stock, or any direct or
indirect redemption, purchase or other acquisition of any stock by
the Corporation, or any agreement or commitment therefore;
(f) any issuance of any stock, bond or other security of the
Corporation, (including, without limitation, options, warrants or
rights);
(g) any sale, assignment or transfer of any tangible or intangible
assets of the Corporation, except, with respect to tangible assets,
in the ordinary course of business;
(h) any loans or guarantees made by the Corporation for the benefit of
any officer, director, employee, consultant or shareholder of the
Corporation, or to any members of their immediate families or any
agreement or commitment therefore (other than advances to such
persons in the ordinary course of business in connection with travel
and travel related expenses);
(i) any damage, destruction or loss (whether or not covered by
insurance) affecting the assets, properties, financial condition,
results of operations or prospects or business of the Corporation;
(j) any material change, direct or indirect, in the compensation paid or
payable to any officer, director, employee, consultant or agent of
the Corporation;
(k) any change in the accounting methods, practices or policies followed
by the Corporation or any change in depreciation or amortization
policies or rates theretofore adopted;
(l) any change or material amendment to a material contract or
arrangement by which the Corporation or any of its assets or
properties is bound or subject which is likely to materially
adversely affect the business operations of the Corporation;
(m) any sale, assignment, transfer or license of any Intellectual
Property (as hereinafter defined);
(n) any receipt of notice that there has been a loss of, or material
contract cancellation by, any material customer or supplier of the
Corporation; or
(o) any agreement or commitment by the Corporation to take any of the
actions described in this Section 3.9.
Title to Assets, Properties and Rights. The Corporation has good and marketable
title to all of its properties, interests in properties and assets, real,
personal, intangible or mixed, reflected on the Balance Sheet (or not so
reflected because not required to be reflected but which are used or useful in
the business of the Corporation), free and clear of all mortgages, judgments,
claims, liens, security interests, pledges, escrows, charges or other
encumbrances of any kind or character whatsoever ("Encumbrances") except liens
for current taxes not yet due and payable (or similar liens) and except for
liens that would not cause a material adverse effect on the operations of the
Corporation. With respect to the property and assets it leases, the Corporation
is in compliance with such leases and holds a valid leasehold interest free of
any Encumbrances.
Intellectual Property.
(a) Section 3.11(a) contains a complete and accurate list of (i) all
material Intellectual Property (as hereinafter defined) owned by the
Corporation and used, held for use, or intended to be used in its
business, (ii) all material rights granted by the Corporation to any
third party with respect to such Intellectual Property, and (iii)
all material Intellectual Property which the Corporation has a
license or other right to use and which is used, held for use, or
intended to be used in its business.
(b) The Corporation owns and possesses all right, title and interest in
and to, has the exclusive right to use, has the right to bring
actions for the infringement of, and, where necessary, has made
timely and proper application for, all of the Corporation's
Intellectual Property rights or has valid and subsisting licenses to
use such Intellectual Property and none of such Intellectual
Property has been abandoned.
(c) No royalties or fees are payable by the Corporation to other persons
by reason of the ownership or use of the Intellectual Property.
(d) No product, service or process manufactured, marketed, sold or used,
or proposed to be manufactured, marketed, sold or used, by the
Corporation violates, or will violate, any license or infringes, or
will infringe, any Intellectual Property or assumed name of another;
and there is no pending or threatened claim or litigation against
the Corporation (nor does there exist any basis therefore)
contesting the validity of or right to use any of the foregoing, nor
has the Corporation received any notice that any of the Intellectual
Property or the operation or proposed operation of the Corporation's
business conflicts, or will conflict, with the asserted rights of
others, nor does there exist any basis for any such conflict, except
for liens that would not cause a material adverse effect on the
operations, financial conditions or prospects of the Corporation.
(e) No person has in the past violated or infringed upon, or is
currently violating or infringing upon, any of the Corporation's
Intellectual Property.
(f) As used herein, the term "Intellectual Property" means all
industrial and intellectual property rights, including, without
limitation, patents, patent applications, patent rights, trademarks,
trademark applications, trade names, logos, service marks, service
▇▇▇▇ applications, copyrights, know-how, inventions, certificates of
public convenience and necessity, franchises, licenses, trade
secrets, industrial secrets, proprietary rights, technology,
formulae, designs, methodologies, computer programs (including all
source codes) and related documentation.
Agreements. Except as set forth in Section 3.12 of the Disclosure Schedule, the
Corporation is not a party to any agreement, understanding, instrument or
contract, whether written or oral contract not made in the ordinary course of
business and, whether or not made in the ordinary course of business, the
Corporation is not party to any written or oral:
(a) contract with any labor union;
(b) contract for the future purchase of fixed assets or for the future
purchase of materials, supplies or equipment in excess of normal
operating requirements;
(c) agreement or indenture relating to the borrowing of money or to the
mortgaging, pledging or placement of a lien on any assets of the
Corporation;
(d) guaranty of any obligation for borrowed money or otherwise;
(e) lease or agreement under which the Corporation is lessee of or holds
or operates any property, real or personal, owned by any other
party;
(f) lease or agreement under which the Corporation is lessor of or
permits any third party to hold or operate any property, real or
personal, owned or controlled by the Corporation;
(g) agreement(s) or other commitment(s) for capital expenditures
cumulatively in excess of $10,000.00;
(h) contract, agreement or commitment under which the Corporation is
obligated to pay any broker's fees, finder's fees or any such
similar fees, to any third party;
(i) contract, agreement or commitment not otherwise specified herein
under which the Corporation has issued or may become obligated to
issue, any shares of capital stock of the Corporation or any
warrants, options, convertible securities or other commitments
pursuant to which the Corporation is or may become obligated to
issue any shares of its capital stock;
(j) any contract(s), agreement(s), arrangement(s) or understanding(s)
under which cumulatively the Corporation may be obligated to pay or
be entitled to receive in excess of $10,000.00;
(k) any other contract, agreement, arrangement or understanding which is
material to the business of the Corporation; or
(l) any amounts payable or that will become payable to each present or
former director, officer, consultant or employee of the Corporation
pursuant to any agreement or understanding set forth in Schedule
3.12 as a result of the execution and delivery of this Agreement and
the other Transaction Documents and/or the consummation of the
transactions contemplated hereby or thereby.
The Corporation has furnished to GSPI or its counsel, true and correct copies of
all such agreements and other documents requested by GSPI or its authorized
representatives.
Labor Relations; Employees. The approximate number of full-time employees of the
Corporation is as set forth in Section 3.13 of the Disclosure Schedule. The
Corporation is not delinquent in payments to any of its employees, for any
wages, salaries, commissions, bonuses or other direct compensation for any
services performed by them to the date hereof or amounts required to be
reimbursed to such employees. The Corporation is in compliance in all material
respects with all applicable laws and regulations respecting labor, employment
and employment practices, terms and conditions of employment and wages and
hours. There is no labor strike, dispute, slowdown or stoppage actually pending
or threatened against or involving the Corporation. Neither any grievance which
might have a material adverse effect on the Corporation or the conduct of its
business nor any arbitration proceeding arising out of or under collective
bargaining agreements is pending and no claim therefore has been asserted.
Employment of Officers, Employees and Consultants. No third party may assert any
valid claim against the Corporation, GSPI or any of the Designated Persons (as
hereinafter defined) with respect to (a) the continued employment by, or
association with, the Corporation of any of the present officers or employees of
or consultants to the Corporation (collectively, the "Designated Persons") or
(b) the use, in connection with any business presently conducted or proposed to
be conducted by the Corporation or any of the Designated Persons of any
information which the Corporation or any of the Designated Persons would be
prohibited from using under any prior agreements or arrangements or any legal
considerations applicable to unfair competition, trade secrets or proprietary
information, except in each case, where such claims would not have a material
adverse effect on the Corporation.
No Defaults. The Corporation is not in default (a) under its Articles or Bylaws,
or any indenture, mortgage, lease, purchase or sales order, or any other
contract, agreement or instrument to which the Corporation is a party or by
which the Corporation or any of its properties is bound or affected which
conflict, breach or default would have a material adverse effect on the
operations, prospects or financial condition of the Corporation, or (b) with
respect to any order, writ, injunction or decree of any court or any Federal,
state, municipal or other domestic or foreign governmental department,
commission, board, bureau, agency or instrumentality, the violation of which
would have a material adverse effect on the operations, prospects or financial
condition of the Corporation. There exists no condition, event or act which
constitutes, or which after notice, lapse of time or both, would constitute, a
default under any of the foregoing, except for liens that would not cause a
material adverse effect on the operations and financial condition of the
Corporation.
Burdensome Restrictions. The Corporation is not obligated under any contract or
agreement or subject to any charter or other corporate restriction which
presently adversely affects, or in the future may reasonably be expected to
adversely affect, its business, properties, assets or financial condition.
Litigation. Except as set forth in Section 3.17 of the Disclosure Schedule,
there is no action, suit, customer claim, proceeding or investigation at law or
in equity by or before any governmental instrumentality or other agency now
pending nor threatened against or affecting the Corporation (including, without
limitation, any action, suit, claim, proceeding or litigation involving the
claims contemplated by Sections 3.11 and 3.14), except for any such pending or
threatened action, suit, customer claim, proceeding or investigation which would
not have a material adverse effect on the operation of the Corporation and liens
that would not cause a material adverse effect on the operations of the
Corporation nor does there exist any basis for any such pending or threatened
action, suit, customer claim, proceeding or investigation.
Tax Matters.
(a) All federal, state and local tax returns and tax reports required to
be filed by the Corporation have been timely filed with the
appropriate government agencies in all jurisdictions in which such
returns and reports are required to be filed (and such reports and
returns fairly reflect the Company's operations for tax purposes).
(b) All federal, state and local income and other taxes due from the
Corporation, as shown on such returns or subsequently assessed by
the proper authority, have been fully paid or adequately provided
for on the books and financial statements of the Corporation. All
deposits required to be made by the Corporation with respect to any
tax (including, without limitation, estimated income, franchise and
employee withholding taxes) have been duly made. All amounts
required to be withheld by the Corporation from employees for income
taxes, social security and unemployment insurance taxes, and the
portion of any such taxes to be paid by the Corporation, have been
collected or withheld and paid or will have been paid at the Closing
to the respective government agencies. The Corporation has not
elected pursuant to the Internal Revenue Code of 1986, as amended
(the "Code"), to be treated as an S corporation or a collapsible
corporation pursuant to Section 1362(a) or Section 341(f) of the
Code, nor has it made any other elections pursuant to the Code
(other than elections that relate solely to methods of accounting,
depreciation or amortization) that would have a material adverse
effect on the Corporation, its financial condition, its business as
presently conducted or proposed to be conducted or any of its
properties or material assets. There are no agreements, waivers or
other arrangements providing for an extension of time with respect
to the assessment of any tax or deficiency against the Corporation,
nor are there any actions, suits, proceedings, investigations or
claims now pending against the Company with respect to any tax or
assessment, or any matters under discussion with any federal, state,
local or foreign authority relating to any taxes or assessments, or
any claims for additional taxes or assessments asserted by any such
authority, and there is no basis for the assertion of any additional
taxes as assessments against the Corporation.
Compliance. The Corporation (a) in carrying out its business has complied in all
material respects with all Federal, state, local and foreign laws, ordinances,
regulations and orders of a material nature applicable to it, its businesses and
the ownership of its assets and (b) has all Federal, state, local and foreign
governmental licenses, franchises, permits and any similar authority
(collectively "Permits") material to and necessary in the conduct of its
business and such Permits are in full force and effect, and no violations have
been recorded in respect of any such Permits and no proceeding is pending or
threatened to revoke or limit any thereof, except for violations or proceedings
which would not have a material adverse effect on the operations, properties,
prospects or financial condition of the Corporation.
Insurance. All the insurable properties of the Corporation are insured for the
benefit of the Corporation in amounts deemed adequate by the Corporation,
against all risks usually insured against by persons operating similar
properties in the localities in which such properties are located under policies
in effect and issued by insurers of recognized responsibility.
Related Transactions. Except for current employment arrangements in the ordinary
course of business and as set forth in Section 3.21 of the Disclosure Schedule,
no current or former stockholder, director, officer or employee of the
Corporation, nor any "associate" of the Corporation, as such term is defined in
the rules and regulations promulgated under the Securities Exchange Act of 1934
(the "Exchange Act"), is presently, directly or indirectly through his, her or
its affiliation with any other person or entity, a party to any transaction with
the Corporation including, without limitation, any transaction providing for the
furnishing of a material amount of services by or to, or rental of real or
personal property from or to, or any loan or guarantee from or to, or otherwise
requiring cash payments to or by any such person. For the purposes of this
Agreement, a transaction of the type described in this Section 3.21 is sometimes
herein referred to as a "Related Transaction."
ERISA Plans and Contracts. Except as set forth in Section 3.22 of the Disclosure
Schedule:
(a) The Corporation does not maintain nor is it a party to (or ever has
maintained or was a party to) any "employee welfare benefit plan,"
as defined in Section 3(l) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or any other written,
unwritten, formal or informal plan or agreement involving direct or
indirect compensation other than workers'compensation, unemployment
compensation and other government programs, under which the
Corporation has any present or future obligation or liability.
Except as set forth in Section 3.22 of the Disclosure Schedule, the
Corporation does not maintain nor is it a party to (or ever has
maintained or was a party to) any "employee pension benefit plan,"
as defined in Section 3(2) of ERISA, and the Corporation does not
contribute (or has ever contributed) to any "multiemployer plan" as
defined in Section 3(37) of ERISA.
(b) There is no contract, agreement, plan or arrangement covering any
employee or former employee of the Corporation that, individually or
collectively, could give rise to the payment of any amount that
would not be deductible by reason of Section 280G of the Code.
(c) Section 3.22 of the Disclosure Schedule lists, for each officer and
key management employee of the Corporation, each employment,
severance or other similar contract, arrangement or policy (written
or oral) providing for insurance coverage (including any
self-insured arrangements), non-statutory workers' compensation,
disability benefits, supplemental unemployment benefits, vacation
benefits, retirement benefits, deferred compensation,
profit-sharing, bonuses, stock options, stock appreciation or other
forms of incentive compensation or post-retirement insurance,
compensation or benefits entered into, maintained or contributed to
by the Corporation.
Environmental and Safety Laws. The Corporation is not in violation of any
applicable statute, law or regulation relating to the environment or
occupational health and safety, and no material expenditures are or will be
required in order to comply wit any such existing statute, law or regulation.
Minute Books. The copies of the minutes of the meetings of the directors and
shareholders and the actions by written consent without a meeting of the
directors and shareholders provided to GSPI or their counsel reflect all such
documents contained in the minute book of the Corporation since the time of
incorporation and such minutes and consents all transactions referred to in such
minutes and consents accurately, in all material respects, reflect all
transactions referred to therein.
Option Plans. The stock available for grant pursuant to the Company's Option
Plan and the Directors Plan is sufficient for the proposed conduct of the
Corporation's business and operation for the period through the date of this
Agreement.
Offerees. Except as set forth in Section 3.26 of the Disclosure Schedule, the
Corporation has not offered any of its capital stock, or any other securities,
for sale to, to solicited any offers to buy any of the foregoing from, or
otherwise approached or negotiated in respect thereof, in such a manner as to
require any capital stock or other securities to be registered under the
Securities Act.
Securities Matters. The Corporation is not now and never has been an "investment
company" which is required to register under, or otherwise comply with, the
provisions of the Investment Company Act of 1940. The Corporation is current in
all filings with the SEC under the Exchange Act and has not been delinquent or
deficient in any required filing under the Exchange Act during the period from
January 1, 2003 through the present. All directors, officers and holders of more
than 5% of the Corporation's securities are current in all reports and schedules
required to be filed by them under Section 16 and Section 13 of the Exchange Act
and, except as set forth in Section 3.27 of the Disclosure Schedule, none of
them have been delinquent or deficient in any such filings during the period
from January 1, 2003 through the present.
Offering Exemption. Based upon the representations and warranties of GSPI
contained in Section 4 of this Agreement, the offering and sale of the Stock are
exempt from registration under the Securities Act and exempt from the
qualification or registration requirements under applicable blue sky laws.
Brokers. Except as set forth in Section 3.29 of the Disclosure Schedule, neither
the Corporation nor any of the officers, directors, employees or stockholders of
the Corporation have employed any broker or finder in connection with the
transactions contemplated by this Agreement.
Registration Rights. Except as set forth in Section 3.30 of the Disclosure
Schedule, no person has any right to cause the Corporation to effect the
registration under the Securities Act of any securities (including debt
securities) of the Corporation.
Disclosure. Neither the Transaction Documents nor the Schedules thereto contains
any untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements contained therein not misleading. The
disclosure of a particular item in the Disclosure Schedule shall constitute
disclosure of that item for all purposes of this Agreement regardless of whether
the same item should or could have been disclosed elsewhere in the Disclosure
Schedule.
Questionable Payments. Neither the Corporation, any director, officer, agent,
employee, or other person associated with or acting on behalf of the
Corporation, nor any stockholder of the Corporation has, directly or indirectly:
used any corporate funds for unlawful contributions, gifts, entertainment, or
other unlawful expenses relating to political activity; made any unlawful
payment to foreign or domestic government officials or employees or to foreign
or domestic political parties or campaigns from corporate funds; violated any
provision of the Foreign Corrupt Practices Act of 1977; established or
maintained any unlawful or unrecorded fund of corporate monies or other assets;
made any false or fictitious entry on the books or records of the Corporation;
made any bribe, rebate, payoff, influence payment, kickback, or other unlawful
payment; or made any bribe, kickback, or other payment of a similar or
comparable nature, whether lawful or not, to any person or entity, private or
public, regardless of form, whether in money, property, or services, to obtain
favorable treatment in securing business or to obtain special concessions, or to
pay for favorable treatment for business secured or for special concessions
already obtained.
Representations and Warranties of GSPI.
Authorization. GSPI has full power and authority and has taken all action
necessary to permit it to execute and deliver and to carry out the terms of the
Transaction Documents and all other documents or instruments required thereby.
Upon execution and delivery, and assuming the proper execution and delivery by
the Corporation of the Transaction Documents, the Transaction Documents
constitute the legal, valid and binding obligations of GSPI, enforceable in
accordance with their respective terms, subject to bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or similar laws now or
hereafter in effect relating to or limiting creditors' rights generally, and
general principles of equity, whether such enforceability is considered in a
proceeding at law or in equity.
Acquisition Entirely for Own Account. GSPI is acquiring the Stock for its own
account, for investment and not with a view to the distribution thereof within
the meaning of the Securities Act. Notwithstanding the foregoing, the
Corporation acknowledges and agrees that GSPI may assign some or all of the
Stock to its sole shareholder, GelStat Corporation.
Limits on Disposition. GSPI understands that the Stock has not been registered
under the Securities Act or any other applicable securities laws, and,
therefore, cannot be resold unless they are subsequently registered under the
Securities Act and other applicable securities laws or unless an exemption from
such registration is available. GSPI agrees not to resell or otherwise dispose
of all or any part of the Stock except as permitted by law, including, without
limitation, any regulations under the Securities Act and other applicable
securities laws.
Legends. GSPI understands that the Corporation does not have any present
intention and is under no obligation to register the Stock GSPI further
represents that it understands and agrees that all certificates evidencing any
of the Stock, whether upon initial issuance or upon any transfer thereof, shall
bear a legend, prominently stamped or printed thereon, reading substantially as
follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR APPLICABLE STATE SECURITIES LAWS.
THESE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE,
TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF (1) AN EFFECTIVE
REGISTRATION STATEMENT COVERING SUCH SECURITIES UNDER THE SECURITIES ACT
OF 1933 AND ANY APPLICABLE STATE SECURITIES LAWS, OR (2) THE AVAILABILITY
OF EXEMPTION FROM REGISTRATION THEREUNDER."
Finders. GSPI has not employed any broker or finder in connection with the
transactions contemplated by this Agreement.
Disclosure of Information. GSPI acknowledges that during the course of this
transaction, it has had the opportunity to ask questions of and receive answers
from representatives of the Corporation, and to obtain additional information,
documents, records and books relative to the Corporation, its business, and an
investment in the Corporation; provided, however, this acknowledgement by GSPI
shall not affect GSPI's rights under the representations and warranties made by
the Corporation herein.
Experience. GSPI's management has sufficient knowledge and experience in
business and financial matters and with respect to investment in securities so
as to enable it to analyze and evaluate the merits and risks of the investment
contemplated hereby and is capable of protecting GSPI's interest in connection
with this transaction. GSPI is able to bear the economic risk of such investment
including a complete loss of the investment.
Conditions of GSPI's Obligations at Closing.
The obligation of GSPI to assign the License at Closing is subject to the
satisfaction of the following conditions precedent, the waiver of which shall
not be effective against GSPI without its consent in writing thereto:
Representations and Warranties. The representations and warranties of the
Corporation contained in Section 2 hereof shall be true and correct as of the
Closing Date, with the same force and effect as if made on such date, and since
the date of this Agreement, there shall not have not been any material adverse
change in the business, operation, properties, assets, prospects or financial
condition of the Corporation.
Performance. The Corporation shall have performed and complied, in all material
respects, with all agreements, obligations and conditions required to be
performed or complied with by it on or before the Closing Date.
Corporate Action. All corporate and other proceedings to be taken and all
waivers and consents approvals, qualifications and/or registrations required to
be obtained or effected in connection with the issuance, sale, execution,
delivery and performance of the Transaction Documents and the transactions
contemplated thereby, including, but not limited to, the issuance and delivery
of the Stock, shall have been taken, obtained or effected (except for the filing
of any notice subsequent to the Closing which may be required under applicable
state securities laws which, if required, shall be filed on a timely basis as
may be so required), and all documents incident thereto shall be satisfactory in
form and substance to GSPI. GSPI shall have received all such originals or
certified or other copies of such documents as have been reasonably requested.
Due Diligence Review. GSPI shall have completed its due diligence review of the
Corporation to their satisfaction.
Officer's Certificate. The President of the Corporation shall have delivered a
certificate certifying to the full compliance by the Corporation with the
conditions set forth in Sections 5.1 and 5.2 hereof.
Good Standing Certificate. The Corporation shall have delivered to GSPI's
counsel a certificate as of a recent date of the Secretary of State of the State
of Minnesota as to the existence and good standing of the Corporation under the
laws of the State of Minnesota.
Conditions of the Corporation's Obligations at Closing.
The obligations of the Corporation to GSPI at the Closing are subject to
the satisfaction of the following conditions precedent:
Representations and Warranties. The representations and warranties of GSPI
contained in Section 3 hereof shall be true and correct as of the Closing Date,
with the same force and effect as if made on such date.
Assignment of License. GSPI shall have assigned the License on the Closing Date
by execution and delivery of the License Assignment.
Additional Agreements of the Corporation.
Securities Filings. The Corporation shall timely file all filings required under
the Securities Act and applicable state securities and "blue sky" laws in
connection with the issuance and sale of the Stock. The Corporation will remain
current in all filings with the SEC so as to enable GSPI to dispose of stock
pursuant to Rule 144 under the Securities Act of 1933 (the "Securities Act").
Directors' and Officers' Insurance. Prior to the Closing Date, or promptly
thereafter, but not later than thirty (30) days thereafter, the Corporation
shall obtain customary directors' and officers' insurance for the directors and
officers of the Corporation in amounts reasonably satisfactory to GSPI.
Election of Directors Appointed by GSPI. As of the Closing Date, the Corporation
shall cause resolutions to be passed, by meeting or upon written consent in lieu
of a meeting, by the vote of the Board of Directors of the Corporation, electing
each and every member of the board of GSPI to the Board of Directors of the
Corporation, and the Corporation and/or its board members will have taken or
will immediately take such action that each member not appointed according to
this Section 7.4 will have resigned or will immediately resign from the Board of
Directors of the Corporation.
Fees.
The Corporation and GSPI shall each pay their own costs and fees related
to the transactions contemplated by this Agreement.
Exchanges; Lost, Stolen or Mutilated Certificates.
Upon surrender by GSPI to the Corporation of any certificate representing
Stock purchased or acquired hereunder, the Corporation at its expense will issue
in exchange therefore, and deliver to GSPI, a new certificate or certificates
representing such shares, in such denominations as may be requested by GSPI.
Upon receipt of evidence satisfactory to the Corporation of the loss, theft,
destruction or mutilation of any certificate representing any Stock purchased or
acquired by GSPI hereunder, and in case of any such loss, theft or destruction,
upon delivery of any indemnity agreement satisfactory to the Corporation, or in
case of any such mutilation, upon surrender and cancellation of such
certificate, the Corporation, at its expense, will issue and deliver to GSPI a
new certificate for such Stock of like tenor, in lieu of such lost, stolen or
mutilated certificate.
Survival.
All representations and warranties hereunder shall survive the Closing.
All statements contained in any certificate or other instrument delivered by the
Corporation pursuant to this Agreement or in connection with the transactions
contemplated by the Transaction Documents shall constitute representations and
warranties by the Corporation under this Agreement and shall speak (unless
otherwise expressly set forth) as of the date of this Agreement. All agreements
contained herein shall survive indefinitely until, by their respective terms,
they are no longer operative.
Indemnification; Contribution.
(a) The Corporation shall indemnify, defend and hold GSPI harmless
against all liability, loss or damage, together with all reasonable
costs and expenses related thereto (including, without limitation,
legal and accounting fees and expenses), arising from the untruth,
inaccuracy or breach of any of the representations, warranties,
covenants or agreements of the Corporation herein or in any
certificate or other instrument delivered to GSPI by the
Corporation.
(b) If the indemnification provided for in this Section 11 is held by a
court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, claim, damage, liability or action
referred to herein, then the indemnifying party, in lieu of
indemnifying such indemnified party hereunder, shall contribute to
the amounts paid or payable by such indemnified party as a result of
such loss, claim, damage, liability or action in such proportion as
is appropriate to reflect the relative fault of the indemnifying
party on the one hand and of the indemnified party on the other in
connection with the statements or omissions which resulted in such
loss, claim, damage, liability or action as well as any other
relevant equitable considerations. The relative fault of the
indemnifying party and of the indemnified party shall be determined
by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by
the indemnifying party or by the indemnified party and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. No person guilty of a
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any
person who is not guilty of such fraudulent misrepresentation.
(c) The Indemnification and contribution provided pursuant to this
Section 11 should expire and be of no further force and effect upon
the occurrence of a Qualified Offering.
Remedies.
In the event that any one or more of the covenants and/or agreements set
forth in this Agreement shall have been breached by the Corporation, GSPI may
proceed to protect and enforce its rights either by suit in equity and/or by
action at law, including, but not limited to, an action for damages as a result
of any such breach and/or an action for specific performance of any such
covenant or agreement contained in this Agreement.
Successors and Assigns.
This Agreement shall bind and inure to the benefit of the Corporation and
GSPI and the respective successors, assigns, heirs and personal representatives
of the Corporation and GSPI.
Entire Agreement.
The Transaction Documents, including, without limitation, this Agreement
and the other writings referred to therein or delivered pursuant thereto which
form a part thereof contain the entire agreement among the parties with respect
to the subject matter thereof and supersede all prior and contemporaneous
arrangements or understandings with respect thereto.
Severability.
If one or more provisions of this Agreement are held to be unenforceable
under applicable law, such provisions shall be excluded from this Agreement and
the remainder of this Agreement shall be interpreted as if such provision were
so excluded and shall be enforceable in accordance with its terms.
Notices.
All notices, requests, consents and other communications hereunder to any
party shall be deemed to be sufficient if contained in a written instrument
delivered in person or sent by telecopy, nationally recognized overnight courier
or first class registered or certified mail, return receipt requested, postage
prepaid, addressed to such party, at the addresses set forth on the signature
page hereto, or such other address as shall be sent by notice to the other
party. All such notices, requests, consents and other communications shall be
deemed to have been delivered (a) in the case of personal delivery or delivery
by telecopy, on the date of such delivery, (b) in the case of dispatch by
nationally recognized overnight courier, on the next business day following such
dispatch and (c) in the case of mailing, on the third business day after the
posting thereof.
Amendments; Waivers.
The terms and provisions of this Agreement may not be modified or amended,
or any of the provisions hereof waived, temporarily or permanently, except
pursuant to the written consent of the Corporation and GSPI.
Counterparts.
This Agreement may be executed in any number of counterparts, and each
such counterpart hereof shall be deemed to be an original instrument, but all
such counterparts together shall constitute but one agreement. Facsimile
signature pages shall be deemed to be and shall be treated for all purposes as
original signature pages.
Headings.
The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed to be a part of this
Agreement.
Nouns and Pronouns.
Whenever the context may require, any pronouns used herein shall include
the corresponding masculine, feminine or neuter forms, and the singular form of
names and pronouns shall include the plural and vice-versa.
Responsibility; Use of Names.
GSPI has no responsibility for the management and operation of the
Corporation, the maintenance of corporate records or for other duties generally
performed by management. The Corporation shall not use or make reference to the
name of GSPI in any publicly available document or communication or any other
widely disseminated document or communication without the prior written approval
of GSPI.
Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the State of Minnesota applicable to contracts made and to be performed
wholly therein, without reference to conflicts of law principles.
Arbitration.
Any controversy or dispute among the parties arising in connection with
this Agreement shall be submitted to a panel of three arbitrators and finally
settled by arbitration in accordance with the commercial arbitration rules then
in effect of the American Arbitration Association. Each of the disputing parties
shall appoint one arbitrator, and these two arbitrators shall independently
select a third arbitrator. Arbitration shall take place in Minneapolis,
Minnesota or such other location as the arbitrators may select. The prevailing
party in such arbitration shall be entitled to the award of all costs and
attorneys' fees in connection with such action as determined by such arbitration
panel. Any award for monetary damages resulting from nonpayment of sums due
hereunder shall bear interest from the date on which such sums were originally
due and payable. Judgment upon the award rendered may be entered in any court
having jurisdiction or application may be made to such court for judicial
acceptance of the award and an order of enforcement, as the case may be.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth above.
CORPORATION:
DTLL, INC. GS PHARMA, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Chief Executive Officer Title: Chairman, CEO, President,
Secretary
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▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 1200
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇