Execution Copy
MERGER
Between
WINDSORTECH, INC.
and
DELTA STATES OIL, INC. and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, PH.D.
January 29, 2002
TABLE OF CONTENTS
Page
1. Definitions..............................................................1
2. Basic Transaction........................................................3
(a) The Merger......................................................3
(b) The Closing.....................................................3
(c) Actions at the Closing..........................................4
(d) Effect of Merger................................................4
(e) Procedure for Payment...........................................5
(f) Closing of Transfer Records.....................................6
3. Representations and Warranties of Delta..................................6
(a) Organization, Qualification, and Corporate Power................6
(b) Capitalization..................................................6
(c) Authorization of Transaction....................................7
(d) Noncontravention................................................7
(e) Filings with the SEC............................................7
(f) Financial Statements............................................8
(g) Events Subsequent to Most Recent Fiscal Quarter End.............8
(h) Undisclosed Liabilities.........................................8
(i) Brokers' Fees...................................................8
(j) Absence of Regulatory Disqualifications.........................8
(k) By-laws are true and correct....................................8
4. Representations and Warranties of Windsortech............................8
(a) Organization....................................................9
(b) Capitalization..................................................9
(c) Authorization of Transaction....................................9
(d) Noncontravention................................................9
(e) Brokers' Fees...................................................9
(f) Continuity of Business Enterprise..............................10
(g) Absence of Regulatory Disqualifications........................10
(h) Unaudited December 31, 2002 Financial Statements...............10
5. Covenants...............................................................10
(a) General........................................................10
(b) Notices and Consents...........................................10
(c) Regulatory Matters and Approvals...............................10
(d) Operation of Business..........................................11
(e) Full Access....................................................12
(f) Notice of Developments.........................................12
(g) Exclusivity....................................................12
6. Conditions to Obligation to Close.......................................14
(a) Conditions to Obligation of Windsortech........................14
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(b) Conditions to Obligation of Delta..............................16
7. Termination.............................................................16
(a) Termination of Agreement.......................................16
(b) Effect of Termination..........................................17
8. Miscellaneous...........................................................17
(a) Post Merger ...................................................17
(b) Survival.......................................................17
(c) Press Releases and Public Announcements........................17
(d) No Third Party Beneficiaries...................................18
(e) Entire Agreement...............................................18
(f) Succession and Assignment......................................18
(g) Counterparts...................................................18
(h) Headings.......................................................18
(i) Notices........................................................18
(j) Governing Law..................................................19
(k) Amendments and Waivers.........................................19
(l) Severability...................................................19
(m) Expenses.......................................................19
(n) Construction...................................................21
(o) Incorporation of Exhibits and Schedules........................21
Exhibit A--Agreement Regarding Continuity of Shareholder Interest
Exhibit B--Certificate of Merger
Exhibit C--Form of Letter of Transmittal
Exhibit D-Form of Opinion of Counsel to Delta
Exhibit E--Form of Opinion of Counsel to Windsortech
Exhibit F -Intentionally Deleted
Exhibit G--Due Diligence Checklist
Exhibit H--Form of Lockup Agreement and Irrevocable Proxy
Exhibit I--Form of Consulting Agreement
Exhibit J--Form of ▇▇▇▇▇▇▇▇▇ Letter
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AGREEMENT AND PLAN OF MERGER
Agreement entered into on and as of January 29, 2002 by and between
Windsortech, Inc., a New Jersey corporation ("Windsortech"), Delta States Oil,
Inc., a Delaware corporation ("Delta"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Ph.D. ("▇▇▇▇▇▇").
Windsortech, Delta and ▇▇▇▇▇▇ are referred to together herein as the "Parties".
This Agreement contemplates a tax-free merger of Windsortech with and
into Delta in a reorganization pursuant to Code ss.368(a)(1)(A). Windsortech's
Shareholders will receive capital stock in Delta in exchange for their capital
stock in Windsortech. The Parties expect that the Merger will further their
business objectives.
Now, therefore, in consideration of the premises and the mutual
promises herein made, the representations, warranties and covenants herein
contained and intending to be legally bound hereby, the Parties agree as
follows.
1. Definitions.
"Affiliate" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act.
"Certificate of Merger" has the meaning set forth in ss.2(c) below.
"Closing" has the meaning set forth in ss.2(b) below.
"Closing Date" has the meaning set forth in ss.2(b) below.
"Closing Date Financial Statements" has the meaning set forth in
ss.3(h) below.
"Confidential Information" means any information concerning the
businesses and affairs of Delta and its Subsidiaries that is not already
generally available to the public.
"Conversion Ratio" has the meaning set forth in ss.2(d)(v) below.
"Delaware General Corporation Law" means the General Corporation Law of
the State of Delaware, as amended.
"Delta" has the meaning set forth in the preface above.
"Delta Stock" means any share of Delta's Common Stock.
"Delta Stockholder" means any Person who or which holds any shares of
Delta's Common Stock.
"Delta's Common Stock" has the meaning given in ss.3(b).
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"Delta's Counsel" shall mean ▇▇▇▇ ▇▇▇▇▇▇, Esquire.
"Delta's Preferred Stock" has the meaning given in ss.3(b).
"Disclosure Schedule" has the meaning set forth in ss.3 below.
"Dissenting Share" means any Delta Share which any Delta stockholder
who or which has exercised his or its appraisal rights under the Delaware
General Corporation Law holds of record.
"Effective Time" has the meaning set forth in ss.2(d)(i) below.
"GAAP" means generally accepted accounting principles as in effect in
the United States from time to time.
"▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
Improvements Act of 1976, as amended.
"IRS" means the Internal Revenue Service.
"Knowledge" means actual knowledge after reasonable investigation.
"Merger" has the meaning set forth in ss.2(a) below.
"Merger Consideration" has the meaning set forth in ss.2(e) below.
"Most Recent Fiscal Year End" have the meanings set forth in ss.3(f)
below.
"New Jersey Business Corporation Act" means the Business Corporation
Act of the State of New Jersey, as amended.
"Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency).
"Parties" has the meaning set forth in the preface above.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization, or a governmental entity (or any department, agency, or political
subdivision thereof).
"Public Report" has the meaning set forth in ss.3(e) below.
"Requisite Delta Stockholder Approval" means the affirmative vote or
consent of the holders of a majority of Delta Shares in favor of this Agreement
and the Merger.
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"Requisite Windsortech Shareholder Approval" means the affirmative vote
or consent of the holders of a majority of Windsortech Shares in favor of this
Agreement and the Merger.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Security Interest" means any mortgage, pledge, lien, encumbrance,
charge, or other security interest, other than (a) mechanic's, materialmen's,
and similar liens, (b) liens for taxes not yet due and payable or for taxes that
the taxpayer is contesting in good faith through appropriate proceedings, (c)
purchase money liens and liens securing rental payments under capital lease
arrangements, and (d) other liens arising in the Ordinary Course of Business and
not incurred in connection with the borrowing of money.
"Special Delta Meeting or Action" has the meaning set forth in
ss.5(c)(ii) below.
"Special Windsortech Meeting or Action" has the meaning set forth in
ss.5(c)(ii) below.
"Subsidiary" means any corporation with respect to which a specified
Person (or a Subsidiary thereof) owns a majority of the common stock or has the
power to vote or direct the voting of sufficient securities to elect a majority
of the directors.
"Surviving Corporation" has the meaning set forth in ss.2(a) below.
"Windsortech" has the meaning set forth in the preface above.
"Windsortech-owned Share" means any Delta Share that Windsortech owns
beneficially.
"Windsortech's Counsel" means ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, P.C.
"Windsortech Shareholder" means any Person who or which holds any
shares of Windsortech's Common Stock.
2. Basic Transaction.
(a) The Merger. On and subject to the terms and conditions of this
Agreement, Windsortech will merge with and into Delta (the "Merger") at the
Effective Time. Delta shall be the corporation surviving the Merger (the
"Surviving Corporation"), but shall rename itself "Windsortech, Inc." in
connection with the Merger.
(b) The Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of ▇▇▇▇▇▇▇ Gadon &
▇▇▇▇▇, P.C. in Philadelphia, Pennsylvania, commencing at 10:00 a.m. local time
not later than the first business day following the satisfaction or waiver of
all conditions to the obligations of the Parties to
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consummate the transactions contemplated hereby (other than conditions with
respect to actions the respective Parties will take at the Closing itself) or
such other date as the Parties may mutually determine (the "Closing Date");
provided, however, that the Closing Date shall occur no later than January 31,
2002.
(c) Actions at the Closing. At the Closing, (i) Delta will deliver to
Windsortech the various certificates, instruments and documents referred to in
ss.6(a) below, (ii) Windsortech will deliver to Delta the various certificates,
instruments and documents referred to in ss.6(b) below, (iii) Windsortech and
Delta will file with the Secretary of State of the State of Delaware and the
[Secretary of State] of the State of New Jersey a Certificate of Merger in the
form attached hereto as Exhibit B (the "Certificate of Merger") and (iv) Delta
will deliver to Windsortech or Windsortech's Counsel in the manner provided
below in this ss.2 certificates evidencing the shares of Delta's Common Stock
issuable to the Windsortech Shareholders pursuant to this Agreement in
connection with the Merger.
(d) Effect of Merger.
(i) General. The Merger shall become effective at the time
(the "Effective Time") Windsortech and Delta file the Certificate of
Merger with the Secretary of State of the State of Delaware and the
Secretary of State of the State of New Jersey. The Merger shall have
the effect set forth in the Delaware General Corporation Law. The
Surviving Corporation may, at any time after the Effective Time, take
any action (including executing and delivering any document) in the
name and on behalf of either Windsortech or Delta in order to carry out
and effectuate the transactions contemplated by this Agreement.
(ii) Certificate of Incorporation. The Certificate of
Incorporation of Delta in effect at and as of the Effective Time will
remain the Certificate of Incorporation of the Surviving Corporation
with the Certificate to be modified as follows:
Article First shall be amended to read in its entirety as follows:
"First: The name of the corporation is Windsortech Inc. "
(iii) Bylaws. The Bylaws of Delta in effect at and as of the
Effective Time will remain the Bylaws of the Surviving Corporation,
without any modification or amendment in the Merger.
(iv) Directors and Officers. The directors and officers of
Windsortech in office at and as of the Effective Time will become the
directors and officers of the Surviving Corporation (being appointed
their respective positions and terms of office and pursuant to
execution and delivery of the Employment Agreements by Delta pursuant
to ss.6(a)(xiv).
(v) Conversion of Windsortech Shares. At and as of the
Effective Time, (A) each Windsortech Share shall be converted into the
right to receive 0.3852 Delta Shares (the ratio of one Windsortech
Share to 0.3852 Delta Shares is referred to herein as the "Conversion
Ratio"). Application of the Conversion Ratio to the 25,000,000
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Windsortech Shares will result in 9,630,000 Delta Shares. No
Windsortech Share shall be deemed to be outstanding or to have any
rights other than those set forth above in this ss.2(d)(v) after the
Effective Time.
(vi) Delta Shares. Each Delta Share issued and outstanding at
and as of the Effective Time will remain issued and outstanding.
(e) Procedure for Payment.
(i) Immediately after the Effective Time, subject to ss.3(h)
below, (A) Delta will deliver to Windsortech's Shareholders or
Windsortech's Counsel stock certificates (issued in the names of the
Windsortech's Shareholders) representing that number of Delta Shares
equal to the product of (x) the Conversion Ratio times (y) the number
of outstanding Windsortech Shares (the "Merger Consideration") and (B)
Delta will deliver to Windsortech's Counsel for forwarding to
Windsortech's Shareholders a letter of transmittal (with instructions
for its use) in the form attached hereto as Exhibit C to each record
holder of outstanding Windsortech Shares for the holder to use in
surrendering the certificates representing his Windsortech Shares in
exchange for a certificate representing the number of Delta Shares to
which he is entitled.
(ii) Delta will not pay any dividend or make any distribution
on Delta Stock (with a record date at or after the Effective Time) to
any record holder of outstanding Windsortech Shares until the holder
surrenders for exchange his certificates representing his Windsortech
Shares. Delta instead will pay the dividend or make the distribution to
Windsortech's Counsel in trust for the benefit of the holder pending
surrender and exchange. Delta may require Windsortech's Counsel to hold
any cash it receives from Delta as a dividend or distribution in a
federally insured bank account of such Counsel's choosing; provided,
however, that the terms and conditions of such account shall be such as
to permit such Counsel to make prompt payments of cash to the holders
of outstanding Windsortech Shares as necessary. Delta may cause such
Counsel to pay over to Delta any net earnings with respect to the
investments. In no event, however, will any holder of outstanding
Windsortech Shares be entitled to any interest or earnings on the
dividend or distribution pending receipt.
(iii) Delta may cause Windsortech's Counsel to return any
shares of Delta Stock and dividends and distributions thereon remaining
unclaimed 180 days after the Effective Time, and thereafter each
remaining record holder of outstanding Windsortech Shares shall be
entitled to look to Delta (subject to abandoned property, escheat and
other similar laws) as a general creditor thereof with respect to the
certificates representing the shares of Delta Stock and/or dividends
and distributions thereon to which he is entitled upon surrender of his
certificates.
(iv) At its option, Windsortech may direct that up to 7% of
the Merger Consideration otherwise payable to the Windsortech
Shareholders pursuant to ss.2(e)(i) above be paid for the account of
Windsortech or such Shareholders directly to ▇▇▇▇▇▇▇
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▇. ▇▇▇▇▇ ("▇▇▇▇▇") or ▇▇▇▇ ▇▇▇▇▇▇▇▇ (as to not more than 2% of such
Merger Consideration from such 7%) for investment banking services.
(v) Without limiting the generality of the foregoing, any
obligation for prior services owed by Delta to pay ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
("▇▇▇▇▇▇▇▇▇"), not to exceed 600,000 Shares of the Merger Consideration
shall be discharged prior to or as part of the Closing and ▇▇▇▇▇▇ and
Horing shall jointly and severally indemnify and hold Delta harmless
from and against any and all further liability or obligation to
▇▇▇▇▇▇▇▇▇.
(f) Closing of Transfer Records. After the close of business on the
Closing Date, transfers of Windsortech Shares outstanding prior to the Effective
Time shall not be made on the stock transfer books of the Surviving Corporation.
3. Representations and Warranties of Delta. Delta represents and
warrants to Windsortech that the statements contained in this ss.3 are correct
and complete as of the date of this Agreement and will be correct and complete
as of the Closing Date (as though made then and as though the Closing Date were
substituted for the date of this Agreement throughout this ss.3), except as set
forth in the disclosure schedule accompanying this Agreement and initialed by
the Parties (the "Disclosure Schedule"). The Disclosure Schedule will be
arranged in paragraphs corresponding to the lettered and numbered paragraphs
contained in this ss.3. Without limiting the generality of the foregoing, but in
furtherance thereof, Delta represents and warrants to Windsortech that the
information furnished by Delta to Windsortech on the Due Diligence Checklist
previously submitted by Delta (attached herein as Exhibit G) is correct and
complete as of the date of this Agreement and will be correct and complete as of
the Closing Date.
(a) Organization, Qualification, and Corporate Power. Each of Delta and
its Subsidiaries is a corporation duly organized, validly existing, and in good
standing under the laws of the jurisdiction of its incorporation. Each of Delta
and its Subsidiaries is duly authorized to conduct business and is in good
standing under the laws of each jurisdiction where such qualification is
required. Each of Delta and its Subsidiaries has full corporate power and
authority to carry on the businesses in which it is engaged and to own and use
the properties owned and used by it.
(b) Capitalization. The entire authorized capital stock of Delta
consists of 35,000,000 shares of common stock, par value $0.01 per share
("Delta's Common Stock"), of which 2,550,000 are issued and outstanding of which
780,832 are issued and held in Delta's treasury on and as of the date hereof,
and 5,000,000 shares of Preferrd (sic) Stock, par value $0.01 per share
("Delta's Preferred Stock"), none of which are issued and outstanding on and as
of the date hereof. All of the issued and outstanding shares of Delta's Common
Stock have been duly authorized and are validly issued, fully paid, and
nonassessable. No shares of Delta's Common Stock or Delta's Preferred Stock are
issuable pursuant to outstanding options, warrants, purchase rights,
subscription rights conversion rights, exchange rights, or other contracts or
commitments. Other than as disclosed on the Disclosure Schedule hereto, there
are no outstanding or authorized options, warrants, purchase rights,
subscription rights, conversion rights, exchange rights, or other contracts or
commitments that could require Delta to issue, sell or otherwise cause to become
outstanding any shares of its capital stock, except as to the obligation to ▇▇▇▇
▇▇▇▇▇▇▇▇▇.
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There are no outstanding or authorized stock appreciation, phantom stock, profit
participation or similar rights with respect to Delta.
(c) Authorization of Transaction. Delta has full power and authority
(including full corporate power and authority) to execute and deliver this
Agreement and to perform its obligations hereunder; provided, however, that
Delta cannot consummate the Merger unless and until it receives the Requisite
Delta Stockholder Approval. This Agreement constitutes the legal, valid and
binding obligation of Delta, enforceable in accordance with its terms and
conditions.
(d) Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(i) violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency or court to which any of Delta and its Subsidiaries is
subject or any provision of the charter or bylaws of any of Delta and its
Subsidiaries or (ii) conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, cancel or require any notice under any agreement,
contract, lease, license, instrument or other arrangement to which any of Delta
and its Subsidiaries is a party or by which any of them is bound or to which any
of their assets is subject (or result in the imposition of any Security Interest
upon any of such assets). Other than in connection with the provisions of the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act, the Delaware General Corporation Law, the Securities
Exchange Act, the Securities Act, and state securities laws, none of Delta and
its Subsidiaries needs to give any notice to, make any filing with, or obtain
any authorization, consent or approval of any government or governmental agency
in order for the Parties to consummate the transactions contemplated by this
Agreement.
(e) Filings with the SEC. Delta has made all filings with the SEC that
it has been required to make under the Securities Act and the Securities
Exchange Act (collectively the "Public Reports"). Each of the Public Reports has
complied with the Securities Act, the Securities Exchange Act and the rules and
regulations promulgated by the SEC thereunder in all material respects. None of
the Public Reports, as of their respective dates, contained any untrue statement
of a material fact or omitted to state a material fact necessary in order to
make the statements made therein, in light of the circumstances under which they
were made, not misleading. Delta has delivered to Windsortech a correct and
complete copy of each Public Report (together with all exhibits and schedules
thereto and as amended to date) filed by Delta after [September 1, 1996]. To the
extent that this may be incorrect as of the execution of this Agreement, Delta
may update the Public Reports, provided that all required Public Reports are
complete by the Closing Date.
(f) Financial Statements. Delta has filed Quarterly Reports on Form
10-Q for the fiscal quarters ended June 30, 2001, March 31, 2001 and December
31, 2000 and an Annual Report on Form 10-K for the fiscal year ended September
30, 2001 (the "Most Recent Fiscal Year End"). The financial statements included
in or incorporated by reference into these Public Reports (including the related
notes and schedules) have been prepared in accordance with GAAP applied on a
consistent basis throughout the periods covered thereby and present fairly the
financial condition of Delta and its Subsidiaries as of the indicated dates and
the results of operations of Delta and its Subsidiaries for the indicated
periods, are correct and complete in all
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material respects, and are consistent with the books and records of Delta and
its Subsidiaries; provided, however, that the interim statements are subject to
normal year-end adjustments.
(g) Events Subsequent to Most Recent Fiscal Year End. During the month
of December, 2001, Delta issued 160,000 shares of common stock for services
rendered. Since the Most Recent Fiscal Year End, there has not been any material
adverse change in the business, financial condition, operations, results of
operations or future prospects of Delta and its Subsidiaries taken as a whole.
(h) Undisclosed Liabilities. None of Delta and its Subsidiaries has any
liability (whether known or unknown, whether asserted or unasserted, whether
absolute or contingent, whether accrued or unaccrued, whether liquidated or
unliquidated, and whether due or to become due, including any liability for
taxes, except for (i) liabilities set forth on the face of the balance sheet
dated as of the Most Recent Fiscal Year End (rather than in any notes thereto)
and (ii) liabilities which have arisen after the Most Recent Fiscal Year End in
the Ordinary Course of Business (none of which results from, arises out of,
relates to, is in the nature of, or was caused by any breach of contract, breach
of warranty, tort, infringement, or violation of law. If, after Closing, Delta
determines that it has any liabilities incurred or accrued prior to Closing not
reflected on the financial statements for Delta as of the Closing Date to be
prepared by ▇▇▇▇▇ ▇▇▇▇▇ Gornstein & Co (the "Closing Date Financial Statements")
or in excess of Delta's cash on hand as reflected on the Closing Date Financial
Statements (such liabilities hereinafter referred to as the "Closing
Liabilities"), the surviving entity will promptly issue to the former
Windsortech Shareholders additional shares of Delta's Common Stock equal in
number to the quotient resulting from dividing the Closing Liabilities by 0.52.
Such issuance will occur within 10 days after the date the Closing Date
Financial Statements are first delivered to Delta or the (former) Windsortech
Shareholders, and shall be made pro-rata among the Stockholders in accordance
with their respective shareholdings in Windsortech as of the Closing Date.
Notwithstanding the foregoing, any such liability that is not in the Ordinary
Course of Business with respect to Delta prior to the Closing Date, or is
incurred in connection with the Merger will not be paid or assumed by Delta
after the Closing.
(i) Brokers' Fees. None of Delta and its Subsidiaries has any liability
or obligation to pay any fees or commissions to any broker, finder, or agent
with respect to the transactions contemplated by this Agreement.
(j) Absence of Regulatory Disqualifications. Neither Delta, nor any of
its officers or directors, is subject to any of the regulatory disqualifications
set forth in SEC Regulations A and D under the Securities Act.
(k) By-laws are true and correct. Delta represents and warrants that
the by-laws of Automated Data Sciences, Inc., filed for Delta States Oil, Inc.,
as an exhibit to the Form S-4 registration statement received by the Securities
and Exchange Commission on August 28, 1986, is a true, complete and correct copy
of its current by-laws.
4. Representations and Warranties of Windsortech. Windsortech
represents and warrants to Delta that the statements contained in this ss.4 are
correct and complete as of the date of this
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Agreement and will be correct and complete as of the Closing Date (as though
made then and as though the Closing Date were substituted for the date of this
Agreement throughout this ss.4), except as set forth in the Disclosure Schedule.
The Disclosure Schedule will be arranged in paragraphs corresponding to the
numbered and lettered paragraphs contained in this ss.4.
(a) Organization. Windsortech is a corporation duly organized, validly
existing and in good standing under the laws of New Jersey.
(b) Capitalization. The entire authorized capital stock of Windsortech
consists of an aggregate of 30,000,000 shares of common stock, par value $0.01
per share ("Windsortech's Common Shares"), of which an aggregate of 25,000,000
shares are issued and outstanding on and as of the date hereof (collectively,
"Windsortech's Outstanding Shares All of Windsortech's Outstanding Shares have
been duly authorized and are validly issued, fully paid and nonassessable.
(c) Authorization of Transaction. Windsortech has full power and
authority (including full corporate power and authority) to execute and deliver
this Agreement and to perform its obligations hereunder; provided, however, that
Windsortech cannot consummate the Merger unless and until it receives the
Requisite Windsortech Shareholder Approval. This Agreement constitutes the
legal, valid and binding obligation of Windsortech, enforceable in accordance
with its terms and conditions.
(d) Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(i) violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency or court to which Windsortech is subject or any provision of
the charter or bylaws of Windsortech or (ii) conflict with, result in a breach
of, constitute a default under, result in the acceleration of, create in any
party the right to accelerate, terminate, modify, or cancel, or require any
notice under any agreement, contract, lease, license, instrument or other
arrangement to which Windsortech is a party or by which it is bound or to which
any of its assets is subject, except where the violation, conflict, breach,
default, acceleration, termination, modification, cancellation, or failure to
give notice would not have a material adverse effect on the ability of the
Parties to consummate the transactions contemplated by this Agreement. Other
than in connection with the provisions of the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act, the New
Jersey Business Corporation Act, the Securities Exchange Act, the Securities Act
and state securities laws, Windsortech does not need to give any notice to, make
any filing with, or obtain any authorization, consent, or approval of any
government or governmental agency in order for the Parties to consummate the
transactions contemplated by this Agreement, except where the failure to give
notice, to file, or to obtain any authorization, consent or approval would not
have a material adverse effect on the ability of the Parties to consummate the
transactions contemplated by this Agreement.
(e) Brokers' Fees. Windsortech shall cause Windsortech's shareholders
to pay ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ("Stone") at closing 6.54% of the Merger Consideration
(currently expected to be a total of 630,000 shares, or 7% of the 9,000,000 =
630,000; with 5% to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, or 450,000 Shares, and 2% to ▇▇▇▇
▇▇▇▇▇▇▇▇, or 180,000 shares) received by Windsortech. Except
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for shares of Delta Stock to be issued after consummation of the Merger,
Windsortech does not have any liability or obligation to pay any fees or
commissions to any broker, finder, or agent with respect to the transactions
contemplated by this Agreement.
(f) Continuity of Business Enterprise. Windsortech intends to continue
at least one of its significant historic business lines, or to use at least a
significant portion of Delta's historic business assets in a business, in each
case within the meaning of Treas. Reg.ss.1.368-1(d).
(g) Absence of Regulatory Disqualifications. Neither Windsortech, nor
any of its officers or directors, is subject to any of the regulatory
disqualifications set forth in SEC Regulations A and D under the Securities Act.
(h) Unaudited December 31, 2002 Financial Statements. Windsortech
represents and warrants that the Unaudited December 31, 2002 Financial
Statements are true and correct in all material respects and that there has not
been any material adverse change in the business or financial condition of
Windsortech as a whole since the date thereof.
5. Covenants. The Parties agree as follows with respect to the period
from and after the execution of this Agreement.
(a) General. Each of the Parties will use its best efforts to take all
action and to do all things necessary, proper or advisable in order to
consummate and make effective the transactions contemplated by this Agreement
(including satisfaction, but not waiver, of the closing conditions set forth in
ss.6 below).
(b) Notices and Consents. Delta will give any notices (and will cause
each of its Subsidiaries to give any notices) to third parties, and will use its
best efforts to obtain (and will cause each of its Subsidiaries to use its best
efforts to obtain) any third party consents, that are necessary or desirable to
consummate the transactions contemplated by this Agreement or that Windsortech
may reasonably request, in each case whether in connection with the matters
referred to in ss.3(d) above or otherwise.
(c) Regulatory Matters and Approvals. Each of the Parties will (and
Delta will cause each of its Subsidiaries to) give any notices to, make any
filings with, and use its best efforts to obtain any authorizations, consents,
and approvals of governments and governmental agencies in connection with the
matters referred to in ss.3(d) and ss.4(d) above. Without limiting the
generality of the foregoing:
(i) Securities Act, Securities Exchange Act and State
Securities Laws. In connection with its proposed issuance of shares of
Delta Common Stock in connection with the Merger, Delta will prepare
and deliver to Windsortech or Windsortech's Counsel for further
delivery to Windsortech's Shareholders disclosure materials meeting the
requirements of Regulation D under the Securities Act and prepare for
filing with the SEC (or state securities regulators) a Notice on Form D
or similar document. Delta also will make any further filings
(including amendments and supplements) in connection therewith that may
be necessary, proper or advisable to perfect any required, necessary or
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desirable exemptions from registration under such laws. Windsortech
will provide Delta with whatever information and assistance in
connection with the foregoing that Delta may reasonably request.
(ii) Delaware General Corporation Law and New Jersey Business
Corporation Act. Delta will call a special meeting of its stockholders
or obtain the required consents in lieu of a meeting to authorize an
appropriate amendment of its Certificate of Incorporation to increase
the number of shares of Delta's Common Stock authorized for issuance to
not less than 35,000,000 shares and call a special meeting of its
stockholders or give other necessary notice prior to the taking of
other appropriate corporate or stockholder action (the "Special Delta
Meeting or Action") as soon as practicable after execution and delivery
of this Agreement in order that Delta's stockholders (or such number of
them as shall be required by the Delaware General Corporation Law) may
consider and vote or take action upon the adoption of this Agreement
and the approval of the Merger in accordance with the Delaware General
Corporation Law. Windsortech will call a special meeting of its
shareholders or obtain the required consents in lieu of a meeting (the
"Special Windsortech Meeting or Action") as soon as practicable in
order that Windsortech's shareholders may consider and vote upon the
adoption of this Agreement and the approval of the Merger in accordance
with the New Jersey Business Corporation Act. The Parties acknowledge
and agree that each of their respective boards of directors has voted
to make an affirmative recommendation to its stockholders or
shareholders (as the case may be) in favor of the adoption of this
Agreement and the approval of the Merger; provided, however, that no
director or officer of either Party shall be required to violate any
fiduciary duty or other requirement imposed by law in connection
therewith.
(iii) ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act. Each of the Parties will file
(and Delta will cause each of its Subsidiaries to file) any
Notification and Report Forms and related material that it may be
required to file with the Federal Trade Commission and the Antitrust
Division of the United States Department of Justice under the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act, will use its best efforts to obtain (and Delta
will cause each of its Subsidiaries to use its best efforts to obtain)
an early termination of the applicable waiting period, and will make
(and Delta will cause each of its Subsidiaries to make) any further
filings pursuant thereto that may be necessary, proper or advisable.
(d) Operation of Business. Delta will not (and will not cause or permit
any of its Subsidiaries to) engage in any practice, take any action or enter
into any transaction outside the Ordinary Course of Business. Without limiting
the generality of the foregoing:
(i) except as contemplated or required by this Agreement, none
of Delta and its Subsidiaries will authorize or effect any change in
its charter or bylaws;
(ii) none of Delta and its Subsidiaries will grant any
options, warrants, or other rights to purchase or obtain any of its
capital stock or issue, sell or otherwise dispose of or agree to issue,
sell or dispose of any shares of its capital stock;
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(iii) none of Delta and its Subsidiaries will declare, set
aside or pay any dividend or distribution with respect to shares of its
capital stock (whether in cash or in kind), or redeem, repurchase or
otherwise acquire any shares of its capital stock;
(iv) none of Delta and its Subsidiaries will issue any note,
bond or other debt security or create, incur, assume or guarantee any
indebtedness for borrowed money or capitalized lease obligation;
(v) none of Delta and its Subsidiaries will grant or permit
the imposition of any Security Interest upon any of its assets;
(vi) none of Delta and its Subsidiaries will make any capital
investment in, make any loan to, or acquire the securities or assets of
any other Person;
(vii) none of Delta and its Subsidiaries will make any change
in employment terms for any of its directors, officers, employees,
agents or consultants; and
(viii) none of Delta and its Subsidiaries will commit to any
of the foregoing.
(e) Full Access. Delta will (and will cause each of its Subsidiaries
to) permit representatives of Windsortech to have full access to all premises,
properties, personnel, books, records (including stockholder lists, share
registers and/or tax records), contracts, and documents of or pertaining to each
of Delta and its Subsidiaries. Windsortech will treat and hold as such any
Confidential Information it receives from any of Delta and its Subsidiaries in
the course of the reviews contemplated by this ss.5(e), will not use any of the
Confidential Information except in connection with this Agreement, and, if this
Agreement is terminated for any reason whatsoever, agrees to return to Delta all
tangible embodiments (and all copies) thereof which are in its possession.
(f) Notice of Developments. Each Party will give prompt written notice
to the other of any material adverse development causing a breach of any of its
own representations and warranties in ss.3 and ss.4 above. No disclosure by any
Party pursuant to this ss.5(f), however, shall be deemed to amend or supplement
the Disclosure Schedule or to prevent or cure any misrepresentation, breach of
warranty or breach of covenant.
(g) Exclusivity. In consideration of Windsortech's undertaking of the
substantial legal, accounting and other expenses related to a due diligence
investigation of Delta and the preparation of the transaction documents, Delta
and ▇▇▇▇▇▇ each agree that, until December 31, 2001 and thereafter for so long
as Windsortech and Delta are negotiating in good faith, neither Delta, ▇▇▇▇▇▇,
or any of their Affiliates, agents or representatives (including without
limitation its investment bankers, if any), without Windsortech's prior written
consent, will directly or indirectly, solicit, initiate or encourage (including
by way of furnishing information) or take any other action to facilitate
knowingly any inquiries or the making of any proposal which constitutes or may
reasonably be expected to lead to a Competing Acquisition Proposal (as defined
below) from any person, or engage in any discussions or negotiations relating
thereto or accept any Competing Acquisition Proposal; provided, however, that
notwithstanding any other
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provision hereof, Delta may engage in discussions or negotiations with a third
party who (without any solicitation, initiation, encouragement, discussions or
negotiation, directly or indirectly, by or with Delta or its representatives
after the date hereof) seeks to initiate such discussions or negotiations and
may furnish such third party information concerning Delta or its business,
properties and assets if, any only to the extent that, (i) the third party has
first made a Competing Acquisition Proposal that is financially superior to the
transactions contemplated by this Agreement and has demonstrated that the funds
necessary for the Acquisition Proposal are reasonably likely to be available to
Delta (as determined in good faith in each case by the Delta Board of Directors
after consultation with their investment bank, if any) (ii) the Board of
Directors of Delta shall conclude in good faith, after considering applicable
provisions of state law, on the basis of oral or written advice of outside
counsel, that such action is necessary for the Board of Directors to act in a
manner consistent with its fiduciary duties under applicable law and (iii) prior
to furnishing such information to or entering into discussions or negotiations
with such persons, Delta provides prompt notice to Windsortech to the effect
that it is furnishing information to or entering into discussions or
negotiations with such person or entity and receives from such person or entity
an executed confidentiality agreement in reasonably customary form. Delta agrees
not to release any third party from, or waive any provision of any standstill
agreement to which you are a party or any confidentiality agreement between you
and another person who has made, or who may reasonably be considered likely to
make, a Competing Acquisition Proposal, unless Delta's Board of Directors shall
conclude in good faith, after considering applicable provisions of state law, on
the basis of oral or written advice of outside counsel, that such action is
necessary for the Board of Directors to act in a manner consistent with its
fiduciary duties. Delta shall notify Windsortech orally and its writing of any
such inquiries, offers or proposals (including without limitation, the terms and
conditions of any such proposal and the identity of the person making it),
within 24 hours of the receipt thereof, shall keep Windsortech informed of the
status and details of any such inquiry, offer or proposal, and shall give
Windsortech five days advance notice of any agreement to be entered into with,
or any information to be supplied to, any person making such inquiry, offer or
proposal. As used herein "Competing Acquisition Proposal" shall mean a proposal
for a tender or exchange offer, merger, consolidation or other business
combination involving Delta or any proposal to acquire in any manner a
substantial equity interest in, or all or substantially all of the assets of,
Delta. In furtherance of the foregoing, notwithstanding any other provision of
this Agreement, if this Agreement is terminated after acceptance by Delta
because its Board of Directors has recommended to its shareholders any other
acquisition proposal, then Delta and ▇▇▇▇▇▇ shall promptly pay all the
out-of-pocket costs and expenses of Windsortech, including the fees and expenses
of Windsortech's Counsel, investment bankers and accountants. In addition to the
foregoing, if within one year after termination of this Agreement by Delta, any
third-party shall enter into any business combination with Delta, such
third-party shall pay to Windsortech prior to the earlier of the execution of
any letter of intent or definitive agreement or consummation of the business
combination with Delta the sum of fifty thousand dollars ($50,000), less any
amounts previously paid by Delta to Windsortech pursuant hereto as additional
compensation for Windsortech's loss as the result of the nonconsummation of the
Merger. In the event such third-party shall refuse to pay such amounts, the
amounts shall be personal obligation of ▇▇▇▇▇▇ and shall be paid by ▇▇▇▇▇▇ to
Windsortech promptly upon notice by Windsortech.
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6. Conditions to Obligation to Close.
(a) Conditions to Obligation of Windsortech. The obligation of
Windsortech to consummate the transactions to be performed by it in connection
with the Closing is subject to satisfaction of the following conditions:
(i) this Agreement and the Merger shall have received the
Requisite Delta Stockholder Approval
(ii) either (x) Windsortech shall have received the written
opinion of Delta's Counsel to the effect that shares of Delta's Stock
prior to the Merger are not eligible to become Dissenting Shares or (y)
the number of Dissenting Shares shall not exceed 2% of the number of
outstanding Delta Shares;
(ii) Delta and its Subsidiaries shall have procured all of the
third party consents specified inss.5(b) above;
(iii) the representations and warranties set forth in ss.3
above (including the statements made in Exhibit H) shall be true and
correct in all material respects at and as of the Closing Date;
(iv) Delta shall have performed and complied with all of its
covenants hereunder in all material respects through the Closing;
(v) no action, suit, or proceeding shall be pending or
threatened before any court or administrative agency of any federal,
state, local or foreign jurisdiction or before any arbitrator wherein
an unfavorable injunction, judgment, order, decree, ruling, or charge
would (A) prevent consummation of any of the transactions contemplated
by this Agreement, (B) cause any of the transactions contemplated by
this Agreement to be rescinded following consummation, (C) affect
adversely the right of the Surviving Corporation to own the former
assets, to operate the former businesses, and to control the former
Subsidiaries of Delta and/or Windsortech, or (D) affect adversely the
right of any of the former Subsidiaries of Delta to own its assets and
to operate its businesses (and no such injunction, judgment, order,
decree, ruling, or charge shall be in effect);
(vi) Delta shall have delivered to Windsortech evidence
reasonably satisfactory to Windsortech (in Windsortech's sole
discretion and judgment) to the effect that immediately prior to
consummation of the Merger, Delta has not less than 2,000 stockholders.
Delta States Oil, Inc. has caused its Transfer Agent, Liberty Transfer
Company, to deliver a Certification, dated December 18, 2001, which
certifies that the number of Stockholders of Common Stock of Delta
States Oil, Inc. is 3,305 as shown by their records at that date.
(vii) Delta shall have delivered to Windsortech a certificate
to the effect that each of the conditions specified above in
ss.6(a)(i)-(vi) has been satisfied in all respects;
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(viii) this Agreement and the Merger shall have received the
Requisite Windsortech Shareholder Approval;
(ix) if deemed necessary or desirable by Windsortech's
Counsel, a Notice on Form D (or similar document) shall be filed by
Delta with the SEC under the Securities Act and with appropriate state
securities commissions;
(x) Windsortech shall reasonably believe that the shares of
Delta Stock to be outstanding immediately after the Merger will be
eligible for quotation on the Over the Counter Bulletin Board;
(xi) all applicable waiting periods (and any extensions
thereof) under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act shall have expired or
otherwise been terminated and the Parties shall have received all other
authorizations, consents, and approvals of governments and governmental
agencies referred to in ss.3(d) and ss.4(d) above;
(xii) Windsortech shall have received from counsel to Delta an
opinion in form and substance as set forth in Exhibit E attached
hereto, addressed to Windsortech, and dated as of the Closing Date;
(xiii) Windsortech shall have received either a private letter
ruling from the IRS or a legal opinion from Windsortech's Counsel to
the effect that the Merger will constitute a tax-free reorganization
pursuant to Code ss.368(a)(1)(A);
(xiv) Windsortech shall have received the resignations,
effective as of the Closing, of each director and officer of Delta and
its Subsidiaries other than those whom Windsortech shall have specified
in writing at least five business days prior to the Closing;
(xv) ▇▇▇▇▇▇ and ▇▇▇▇▇▇ shall each have executed a Lockup
Agreement and Irrevocable Proxy in substantially the form attached
hereto as Exhibit H.
(xvi) Windsortech shall have received copies of employment
agreements for each of ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Sheer,
▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇; and
(xvii) ▇▇▇▇▇▇ shall have entered into a Consulting Agreement
in substantially the form attached hereto as Exhibit I.
(xviii) ▇▇▇▇▇▇▇▇▇ shall have executed a letter in
substantially the form of Exhibit J.
(xix) all actions to be taken by Delta in connection with
consummation of the transactions contemplated hereby and all
certificates, opinions, instruments, and other documents required to
effect the transactions contemplated hereby will be satisfactory in
form and substance to Windsortech and Windsortech's Counsel.
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Windsortech may waive any condition specified in this ss.6(a) if it
executes a writing so stating at or prior to the Closing.
(b) Conditions to Obligation of Delta. The obligation of Delta to
consummate the transactions to be performed by it in connection with the Closing
is subject to satisfaction of the following conditions:
(i) this Agreement and the Merger shall have received the
Requisite Windsortech Shareholder Approval;
(ii) the representations and warranties set forth inss.4 above
shall be true and correct in all material respects at and as of the
Closing Date;
(iii) Windsortech shall have performed and complied with all
of its covenants hereunder in all material respects through the
Closing;
(iv) Windsortech shall have delivered to Delta a certificate
to the effect that each of the conditions specified above in
ss.6(b)(i)-(iii) is satisfied in all respects;
(v) this Agreement and the Merger shall have received the
Requisite Delta Stockholder Approval;
(vi) all applicable waiting periods (and any extensions
thereof) under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act shall have expired or
otherwise been terminated and the Parties shall have received all other
authorizations, consents and approvals of governments and governmental
agencies referred to in ss.3(d) and ss.4(d) above;
(vii) Delta shall have received from Windsortech's Counsel an
opinion in form and substance as set forth in Exhibit E attached
hereto, addressed to Delta, and dated as of the Closing Date;
Delta may waive any condition specified in this ss.6(b) if it executes
a writing so stating at or prior to the Closing.
7. Termination.
(a) Termination of Agreement. Either of the Parties may terminate this
Agreement with the prior authorization of its board of directors (whether before
or after stockholder approval) as provided below:
(i) the Parties may terminate this Agreement by mutual written
consent at any time prior to the Effective Time;
(ii) Windsortech may terminate this Agreement by giving
written notice to Delta at any time prior to the Effective Time (A) in
the event Delta has breached any material representation, warranty or
covenant contained in this Agreement in any material respect,
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Windsortech has notified Delta of this breach, and the breach has
continued without cure for a period of 5 days after the notice of
breach or (B) if the Closing shall not have occurred on or before
January 31, 2002 by reason of the failure of any condition precedent
under ss.6(a) hereof (unless the failure results primarily from
Windsortech breaching any representation, warranty, or covenant
contained in this Agreement);
(iii) Delta may terminate this Agreement by giving written
notice to Windsortech at any time prior to the Effective Time (A) in
the event Windsortech has breached any material representation,
warranty, or covenant contained in this Agreement in any material
respect, Delta has notified Windsortech of the breach, and the breach
has continued without cure for a period of 5 days after the notice of
breach or (B) if the Closing shall not have occurred on or before
January 31, 2002 by reason of the failure of any condition precedent
under ss.6(b) hereof (unless the failure results primarily from Delta
breaching any representation, warranty, or covenant contained in this
Agreement);
(iv) either Party may terminate this Agreement by giving
written notice to the other Party at any time in the event this
Agreement and the Merger fail to receive the Requisite Windsortech
Shareholder Approval or the Requisite Delta Stockholder Approval,
respectively.
(b) Effect of Termination. If any Party terminates this Agreement
pursuant to ss.7(a) above, all rights and obligations of the Parties hereunder
shall terminate without any liability of any Party to any other Party (except
for any liability of any Party then in breach); provided, however, that the
confidentiality provisions contained in ss.5(e) above shall survive any such
termination.
8. Miscellaneous.
(a) Post Merger.
(i) After the Merger, the Surviving Corporation shall take such steps
as are necessary and proper to maintain compliance with the applicable Statues
and rules concerning the filling of certified financial statements so as to
maintain the Surviving Corporations status as a Reporting Company.
(ii) As soon as it is reasonably practicable, the Surviving Corporation
shall apply for listing on the Nasdaq Bulletin Board for trading of shares.
(b) Survival. The representations and warranties of the Parties will
survive consummation of the transactions contemplated by this Agreement.
(c) Press Releases and Public Announcements. Prior to the Effective
Time, no Party shall issue any press release or make any public announcement
relating to the subject matter of this Agreement without the prior written
approval of the other Party; provided, however, that any Party may make any
public disclosure it believes in good faith is required by applicable law or any
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listing or trading agreement concerning its publicly-traded securities (in which
case the disclosing Party will make reasonable efforts to advise the other Party
prior to making the disclosure).
(d) No Third Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their respective
successors and assigns.
(e) Entire Agreement. This Agreement (including all documents referred
to herein) constitutes the entire agreement between the Parties and supersedes
any prior understandings, agreements, or representations by or between the
Parties, written or oral, related to the subject matter hereof.
(f) Succession and Assignment. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective successors
and assigns. No Party may assign either this Agreement or any of its rights,
interests, or obligations hereunder without the prior written approval of the
other Party, which approval will not unreasonably be withheld.
(g) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(h) Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(i) Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
If to Delta:
Delta States Oil, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with a copy to:
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▇▇▇▇ ▇▇▇▇▇▇, Esq.
▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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If to Windsortech:
Windsortech, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇, P.C.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esquire
Any Party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no such notice,
request, demand, claim, or other communication shall be deemed to have been duly
given unless and until it actually is received by the intended recipient. Any
Party may change the address to which notices, requests, demands, claims, and
other communications hereunder are to be delivered by giving the other Party
notice in the manner herein set forth.
(j) Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the Commonwealth of Pennsylvania without
giving effect to any choice or conflict of law provision or rule (whether of the
Commonwealth of Pennsylvania or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the Commonwealth of
Pennsylvania.
(k) Amendments and Waivers. The Parties may mutually amend any
provision of this Agreement at any time prior to the Effective Time with the
prior authorization of their respective boards of directors; provided, however,
that any amendment effected subsequent to stockholder approval will be subject
to the restrictions contained in the Delaware General Corporation Law and the
New Jersey Business Corporation Act. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by both
of the Parties. No waiver by any Party of any default, misrepresentation, or
breach of warranty or covenant hereunder, whether intentional or not, shall be
deemed to extend to any prior or subsequent default, misrepresentation, or
breach of warranty or covenant hereunder or affect in any way any rights arising
by virtue of any prior or subsequent such occurrence.
(l) Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
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(m) Expenses. Each of the Parties will bear its own costs and expenses
(including legal fees and expenses) incurred in connection with this Agreement
and the transactions
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contemplated hereby. Without limiting the generality of the foregoing, except to
the extent otherwise specifically set forth herein, Windsortech will be
responsible for the cost of preparing this Agreement, including the fees and
disbursements of Windsortech's Counsel, accountants and investment bankers in
connection with this transaction, whether or not such transaction is
consummated. In furtherance thereof, Delta will be responsible for any costs it
may incur in connection with any legal review performed by it or on its behalf,
including any expense associated with the transaction involving ▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
(n) Construction. The Parties have participated jointly in the
negotiation and drafting of this Agreement. 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. Any reference to any federal, state, local or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context otherwise requires. The
word "including" shall mean including without limitation.
(o) Incorporation of Exhibits and Schedules. The Exhibits and Schedules
identified in this Agreement are incorporated herein by reference and made a
part hereof.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on
and as of the date first above written.
Windsortech:
Windsortech, Inc.
By: __________________________
Name:
Title:
Delta:
Delta States Oil, Inc.
By: __________________________
Name:
Title:
______________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Ph.D.
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EXHIBIT A
FORM OF AGREEMENT REGARDING CONTINUITY OF SHAREHOLDER INTEREST
AGREEMENT FOR CONTINUITY OF STOCKHOLDER INTEREST
THIS AGREEMENT is entered into on and as of January 29th, 2002 by and
among Delta States Oil, Inc., a Delaware corporation ("Delta"), ▇▇. ▇▇▇▇▇▇
▇▇▇▇▇▇, an individual ("▇▇▇▇▇▇"), ▇▇▇▇ ▇▇▇▇▇▇, Esquire, an individual
("Horing"), and Windsortech, Inc., a New Jersey corporation.
WHEREAS, Delta and Windsortech are parties to an Agreement and Plan of
Merger dated as of January 29th, 2001 (the "Merger Agreement") pursuant to which
Windsortech will be merged with and into Delta, which will then change its name
to Windsortech, Inc.
(the "Merger");
WHEREAS, the Merger Agreement contemplates that the Merger will be
treated as a tax-free reorganization pursuant to section 368(a)(1)(a) ("ss.368")
and the regulations promulgated thereunder ("Reg. ss.1.368-1") of the Internal
Revenue Code of 1986 (the "Code");
WHEREAS, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇
will own beneficially and of record more than fifty percent (50%) of the
outstanding shares of capital stock of Delta outstanding immediately prior to
consummation of the Merger;
WHEREAS, Delta and Windsortech desire to memorialize their
understanding with respect to ▇▇▇▇▇▇'▇ and Horing's present intention regarding
disposition of their pre-Merger Delta stock after consummation of the Merger.
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Representations and Warranties. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇ each severally represent and warrant to Delta and
Windsortech that (a) they together will own, beneficially and of record, more
than fifty percent (50%) of the outstanding shares of Delta's capital stock
immediately prior to consummation of the Merger and (b) they have no present
plan, intention or arrangement to dispose of any of their Delta stock after
consummation of the Merger in a manner that would cause the Merger to violate
the continuity of stockholder interest requirement of Reg. ss.1.368-1. Without
limiting the generality of the foregoing, ▇▇▇▇▇▇ and Horing represent and
warrant that they do not intend to dispose of any of their pre-Merger Delta
shares in any manner that would reduce the fair value of their Delta stock,
measured as of the date of consummation of the Merger, to an amount less than
$8,000.00 value of such stock held by them immediately before the Merger.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement on and as of the date first above written.
DELTA STATES OIL, INC.
By
--------------------------------
President
WINDSORTECH, INC.
By
--------------------------------
President
--------------------------------
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
▇▇▇▇ ▇▇▇▇▇▇, Esquire
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EXHIBIT B-1
FORM OF CERTIFICATE OF MERGER
STATE OF DELAWARE
CERTIFICATE OF MERGER OF
DELTA STATES OIL, INC., A DELAWARE CORPORATION
AND WINDSORTECH, INC. A NEW JERSEYCORPORATION
Pursuant to Title 8, Section 252(c) of the Delaware General Corporation Law, the
Undersigned Corporation executed the following Certificate of Merger:
FIRST: The name of the corporations being merged are Delta States Oil, Inc., a
Delaware corporation, and Windsortech, Inc., a New Jersey Corporation.
SECOND: The Agreement and Plan of Merger has been approved, adopted, certified,
executed and acknowledged by each of the constituent corporations.
THIRD: The name of the surviving corporation is Windsortech, Inc., a Delaware
corporation.
FOURTH: The Certificate of Incorporation of the surviving corporation shall be
the Certificate of Incorporation of Delta States Oil, Inc., with the following
amendment: Article I of the Certificate of Incorporation shall be amended to
read in its entirety, as follows: "The name of the corporation is "Windsortech,
Inc.".
FIFTH: The Agreement and Plan of Merger is on file at Windsortech, Inc. ▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, the place of business of the surviving corporation.
SIXTH: A copy of the Agreement and Plan of Merger will be furnished by the
surviving corporation on request, without cost, to any stockholder of the
constituent corporations.
SEVENTH: The authorized stock and par value of the non-Delaware company is
30,000,000 shares of common stock, par value of $ 0.01 per share.
EIGHTH: The merger is to become effective at the date and time of filling.
IN WITNESS WHEREOF, said surviving corporation has caused this Certificate to be
signed by an authorized officer, the 29th day of January, A.D., 2002.
Attest Delta States Oil, Inc.
By: ___________________ By:_______________________________
Authorized Officer
By: ________________/_____________
Print or Type / Title
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EXHIBIT B-2
FORM OF CERTIFICATE OF MERGER
STATE OF NEW JERSEY
CERTIFICATE OF MERGER OF
WINDSORTECH, INC., A NEW JERSEY CORPORATION
AND DELTA STATES OIL, INC., A DELAWARE CORPORATION
TO: THE SECRETARY OF STATE, STATE OF NEW JERSEY
Pursuant to the provisions of Sections 14A:10-1 and 14A:10-4.1 of the
New Jersey Business Corporation Act (the "Act"), the undersigned corporations
hereby execute the following Certificate of Merger.
FIRST: Windsortech Inc., a corporation organized and existing under the laws of
the State of New Jersey, shall be merged with and into Delta States Oil, Inc., a
corporation organized and existing under the laws of the State of Delaware, and
Delta States Oil, Inc. a corporation existing under the laws of the State of
Delaware is hereinafter designated as the surviving corporation (the "Surviving
Corporation"). After consummation of the Merger, the Surviving Corporation shall
change its name to "Windsortech, Inc.".
SECOND: The address of the Surviving Corporation's registered office is
Windsortech, Inc. ▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and the name of its
registered agent at such address is ▇▇▇▇▇ ▇▇▇▇▇▇▇.
THIRD: The total authorized capital stock of the Surviving Corporation shall be
thirty five million (35,00,000) shares of common stock, and five million
(5,000,000) shares of preferred stock.
FOURTH: The Agreement and Plan of Merger annexed hereto and made a part hereof
as Exhibit "A" was approved by each of the undersigned corporations in the
manner prescribed by Sections 14A:10-1 and 14A:10-4.1 of the New Jersey Business
Corporation Act, and Title 8, Section 252(c) of the Delaware General Corporation
Law. The Agreement and Plan of Merger was approved by the shareholders of
Windsortech, Inc., on January 29, 2002. The Agreement and Plan of Merger was
approved by the shareholders of Delta States Oil, Inc., on January 29, 2002.
FIFTH: As to each corporation whose shareholders are entitled to vote, the
number of shares entitled to vote was as follows:
Name of Corporation Total Number of Shares Entitled to Vote
Windsortech, Inc. 25,000,000 shares of common stock
Delta Sates Oil, Inc. 1,769,168 shares of common stock
No shares are entitled to vote as a class.
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As to each corporation whose shareholders are entitled to vote, the
number of shares voted for and against the Agreement and Plan of Merger,
respectively, was as follows:
Total Shares Total Shares
Name of Corporation Voted For Voted Against
Windsortech, Inc. 25,000,000 0
Delta States Oil, Inc. 1,057,100 0
SIXTH: No shares are entitled to vote as a class on the Agreement and Plan of
Merger.
SEVENTH: This Certificate of Merger shall be effective at the date and time of
filing.
EIGTH: The Surviving Corporation agrees that it may be served with process in
the State of New Jersey in any proceeding for the enforcement of any obligation
of any corporation previously amenable to suit in New Jersey, which is a party
to the instant Agreement and Plan of Merger, attached hereto as Exhibit "A", and
in any proceeding for the enforcement of the rights of a dissenting shareholder
of Windsortech, Inc. against the Surviving Corporation; and, the Surviving
Corporation agrees to an irrevocable appointment of the Secretary of State of
New Jersey as its agent to accept service of process in any such proceeding, and
the address of ▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ shall be designated for the
Secretary of State to mail a copy of the process in such proceeding.
NINTH: The Surviving Corporation agrees to promptly pay to the dissenting
shareholders of any New Jersey corporation which is a party to the Agreement and
Plan of Merger, attached hereto as Exhibit "A", the amount, if any, to which
they shall be entitled under the provisions of this Act with respect to the
rights of dissenting shareholders.
IN WITNESS WHEREOF, each of the undersigned corporations has caused
this Certificate of Merger to be executed in its name by its respective
President the day of January, 2002.
[Corporate Seal] ATTEST: WINDSORTECH, INC.
__________________ By: _____________________________
[Corporate Seal] ATTEST: DELTA STATES OIL, INC.
__________________ By: _____________________________
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EXHIBIT C
January 29, 2002
Delta States Oil, Inc.
C/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Ph.D.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Agreement and Plan of Merger dated January 29, 2002
Dear Sirs:
The undersigned hereby irrevocably transmits to Delta States Oil, Inc.,
("Delta") the below described certificates representing 5,000,000 shares of
Common Stock, par value $0.01 per share (the "Windsortech Shares"), of
Windsortech, Inc. (the "Company") which are enclosed herewith, in exchange for
an aggregate of 1,926,000 shares of Common Stock of Delta States Oil, Inc., (the
"Delta Shares") at a conversion ratio of 0.3852 per share, subject to the terms,
conditions and instructions below.
Subject to delivery of the Delta Shares, the undersigned hereby sells,
assigns and transfers to Delta all, right, title and interest in the Windsortech
Shares enclosed herewith. The undersigned represents that the undersigned has
full power and authority to tender and sell without restriction the tendered
Windsortech Shares to Delta and that Delta will acquire good and unencumbered
title thereto free and clear of all liens, restrictions, charges and
encumbrances and not subject to any adverse claim. The undersigned will execute,
upon request, any additional documents necessary or desirable to complete such
sale and transfer of tendered Windsortech Shares.
All authority herein conferred or agreed to be conferred shall survive
the death or incapacity of the undersigned and all obligations of the
undersigned herein shall be binding upon the heirs, personal representatives,
successors and assigns of the undersigned.
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Very truly yours,
---------------------------
Signature of Shareholder
Must be signed by registered holder exactly as name appears in certificate.
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EXHIBIT D
FORM OF OPINION OF COUNSEL TO DELTA
1. incorporation and valid existence
2. foreign qualification
3. due authorization, execution and delivery of Agreement
4. valid and binding Agreement
6. Delta not an inadvertent investment company
7. Employment Agreements have been duly authorized, executed and delivered
8. Employment Agreements will be valid and binding
9. No dissenters' rights under Delaware law.
10. Issuance and sale of Delta shares pursuant to the Merger is exempt under
Reg D.
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EXHIBIT E
FORM OF OPINION OF COUNSEL TO WINDSORTECH
1. incorporation and valid existence
2. foreign qualification
3. due authorization, execution and delivery of Agreement
4. valid and binding Agreement
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EXHIBIT F
INTENTIONALLY DELETED
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EXHIBIT G
DUE DILLIGENCE CHECKLIST
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EXHIBIT H
FORM OF LOCKUP AGREEMENT AND IREVOCABLE PROXY
LOCKUP AGREEMENT AND IRREVOCABLE PROXY
THIS LOCKUP AGREEMENT AND IRREVOCABLE PROXY ("Proxy") is entered into
and given this 29th day of January, 2002 by and between ▇▇▇▇ ▇▇▇▇▇▇, ESQ.,
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Ph.D. and ▇▇▇▇▇▇ ▇▇▇▇▇▇ (hereinafter referred to
individually as a "Stockholder and collectively as "Stockholders"), Windsortech,
Inc., a New Jersey corporation (hereinafter referred to as "Windsortech") and
▇▇▇▇▇ ▇. LOPPERT (hereinafter referred to as the "Proxyholder").
WHEREAS, Stockholders are the owners of an aggregate of one million
fifty seven thousand one hundred (1,057,100) shares (collectively, the "Shares")
of the common capital stock of Delta States Oil, Inc., a Delaware corporation
(the "Corporation"); and
WHEREAS, The Corporation and Windsortech are parties to an Agreement
and Plan of Merger (the "Merger Agreement"); and WHEREAS,
Stockholders deem it advisable and for the best interests of
themselves and the Corporation that the
transactions contemplated by the Merger Agreement be consummated; and
WHEREAS, Windsortech has required that Stockholders enter into this
Lockup Agreement and Irrevocable Proxy as a condition to consummation of the
transactions contemplated by the Merger Agreement; and
WHEREAS, Stockholders desire to establish and grant this Lockup and
Proxy in order to achieve the foregoing objectives and desires; and
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WHEREAS, Proxyholder is willing to accept this Proxy and to exercise
his rights hereunder in order to achieve the foregoing objectives and desires.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, the parties to this Agreement,
intending to be legally bound hereby, do hereby agree as follows:
1. Lockup: Restrictions on Transfer.
a. Restrictions on Stockholders. From and after the dates
hereof and until terminated pursuant to Section 3 hereof, each Stockholder
agrees not to sell, assign, transfer, give, bequeath, devise, donate or
otherwise dispose of, pledge, deposit, hypothecate or otherwise encumber, in
whole or in part, or in any way or manner whatsoever, including, without
limitation, by way of option, warrant, put, call or other contract right,
agreement, commitment or understanding, any of the Shares now or hereafter owned
or held by him or her, whether beneficially or of record, except as expressly
provided in this Agreement and in accordance with its terms and conditions.
b. Impermissible Transfers Void. Any purported transaction
in the Shares made in violation of this Section 1 shall be null, void and
without effect. Without limiting the generality of the foregoing, but in
furtherance thereof, the Stockholders agree to cause the Corporation to refuse
to reflect any such purported transaction on the books and records of the
Corporation.
2. Irrevocable Proxy.
a. Each Stockholder irrevocably appoints Proxyholder as his
or her true and lawful attorney and proxy with full power of substitution in the
premises for and in his or her name, to vote and otherwise act with respect to
all of his or her shares at all annual, special or other meeting of stockholders
of the Corporation (or by written
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consent for each in lieu thereof) called or taken to approve, ratify or
authorize the transactions contemplated by the Merger Agreement.
b. The Stockholders understand and agree that the
appointment and proxy granted to Proxyholder by Section 1 a. of this Proxy is,
until the consummation of the transactions contemplated by the Merger Agreement,
execution of the Agreement, and coupled with an interest within the meaning of
Title 8 ss. 212 (e) of the Delaware General Corporation Law, and any successor
provision thereto, and, except as otherwise provided in Section 2 of this Proxy,
shall not terminate by operation of law, whether by the death, disability,
bankruptcy, adjudication of incompetency, insanity or the occurrence of any
other event or condition with respect to Proxyholder or the Stockholders.
c. The Stockholders and Proxyholder further understand and
agree that this Lockup and Proxy relates solely to all voting rights (whether
limited, fixed or contingent) with respect to each of the Stockholder's Shares
and does not relate to any other right incident to the ownership of shares of
capital stock of the Corporation (including, without limitation, the right to
receive dividends and any other distributions on those shares).
3. Term. This Lockup and Proxy shall terminate upon the filling of
the Certificates of Merger required by Delaware and New Jersey Law, unless
extended in writing.
4. Legend on Stock. At Windsortech's request, each certificate
evidencing Shares now or hereafter held by a Stockholder shall bear a
conspicuous Legend in substantially the following form:
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THE SHARES OF STOCK EVIDENCED BY THIS CERTIFICATE ARE
SUBJECT TO THE GRANT OF AN IRREVOCABLE PROXY PURSUANT TO A
LOCKUP AGREEMENT AND IRREVOCABLE PROXY DATED JANUARY 29,
2002, COPIES OF WHICH ARE ON FILE AT THE PRINCIPAL OFFICE OF
THE CORPORATION.
5. Recapitalization. This Agreement applies to all Shares of Stock
now or hereafter held by the Stockholders. If any capital reorganization of the
Corporation takes place or if any shares of capital stock of the Corporation
held by Stockholders are reclassified, classified, split, exchanged or changed
in any manner, this Proxy shall be deemed to apply to all those shares of
capital stock received and then owned by the Stockholders.
6. Benefit and Burden. This Agreement shall inure to the benefit of,
and be binding upon the Stockholders and the Proxyholder and their respective
heirs, personal representatives and assigns.
7. Modifications. This Agreement may only be modified, waived,
discharged or terminated only by an instrument in writing executed by
Stockholders and Proxyholder.
8. Applicable Law. This Proxy shall be construed and enforced in
accordance with the laws of the State of Delaware.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the day and year first above written. WITNESS:
▇▇▇▇▇ ▇. LOPPERT, PROXYHOLDER
______________
-------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇, ESQUIRE, STOCKHOLDER
______________
-------------------------------------------------
MURIELHORING, STOCKHOLDER
______________
-------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Ph.D., STOCKHOLDER
______________
-------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇, STOCKHOLDER
FILED WITH THE SECRETARY
OF
DELTA STATES OIL, INC. ON
January 29 , 2002.
-----------------
, SECRETARY
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EXHIBIT I
FORM OF CONSULTING AGREEMENT
CONSULTING Agreement
THIS AGREEMENT is made as of February 1, 2002 between Windsortech, Inc.
(formerly Delta States Oil, Inc.) ("Client") and ▇. ▇▇▇▇▇▇, Ph.D.("Consultant").
1. Term of Agreement. This agreement shall start on February 1, 2002
and end on January 31, 2005, unless sooner terminated as provided in this
Agreement. This agreement shall not be renewed unless expressly agreed in
writing by both parties. Consultant shall have no authority to make any
statements, representations, warranties or commitments or to take any action
which shall be binding upon Client, except as specifically authorized in writing
by Client.
2. Services. Consultant agrees to perform for Client the services,
consisting of eight (8) hours of services per month, to be mutually determined
by both parties. Such services are hereinafter referred to as "Services." Client
agrees that consultant shall have reasonable access to Client's staff and
resources as necessary to perform the Consultant's services provided for by this
contract.
3. Rate of Payment for Services. Client agrees to pay Consultant for
Services $1,500.00 per month. Client shall pay the amounts agreed to herein on
the first day of each month, beginning March 1, 2002 for the month of February.
4. Events Causing Termination. Upon the occurrence of one or more of
the following events, this Agreement may be terminated as set forth in this
section, which termination shall be effective upon receipt of written notice of
termination by the terminated party:
A. Client may terminate this Agreement if Consultant is
convicted of (or pleads guilty or nolo contendere to) a felony, or a
misdemeanor adversely affecting Consultants ability to perform
Services.
B. Client may terminate this Agreement in the event that Consultant
should die, retire or become fully disabled so as not to be able to perform the
Services required.
C. Client may terminate this Agreement in the event that Consultant
shall refuse or fail to faithfully and diligently perform any material Services,
which failure is not cured within ten (10) days after Client has sent Consultant
written notice of such alleged default.
5. Confidential Information. Consultant hereby acknowledges that during
the performance of this contract, the Consultant may learn or receive
confidential Client information and therefore Consultant hereby confirms that
all such information relating to the Client's business will be kept confidential
by the Consultant, except to the extent that such information is required to be
divulged in order to enable Consultant to perform Consultant's contract
obligation.
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6. Independent Contractor.
A. Consultant is an independent contractor and Consultant is
not and shall not be deemed to be employed by Client.
B. Client is hereby contracting with Consultant for his
services and Consultant reserves the right to determine the method,
manner and mean by which the services will be performed.
C. Consultant is not required to perform the services during a
fixed hourly or daily time, subject to the Client's normal business
hours and security requirements. However, Consultant is required to
perform his services during fixed times where such times are a
necessary ingredient to the performance of said services.
D. The services shall be performed by Consultant, and Client
shall not be required to hire, supervise or pay any assistants to help
Consultant who performs the services under this agreement.
E. Consultant shall not be required to devote Consultant's
full time to the performance of the services required hereunder. The
order or sequence in which the work is to be performed shall be under
the control of Consultant. However, Consultant is required to invest a
reasonable amount [approximately eight (8) hours] to successfully
complete the services described herein on a monthly basis.
F. Consultant shall be responsible for any taxes or penalties
assessed by reason of any claims that Consultant is an employee of
Client and Client and Consultant specifically agree that Consultant is
not an employee of Client.
7. Insurance. Client shall not provide any insurance coverage of any
kind for Consultant and Client will not withhold from paychecks to Consultant
hereunder any amount that would normally be withheld from an employee's pay.
7. Limited Warranty. Consultant warrants to Client that the material,
analysis, data, programs and services to be delivered or rendered hereunder,
will be of the kind and quality designated and will be performed by qualified
personnel.
8. Complete Agreement. This agreement contains the entire agreement
between the parties hereto with respect to the matters covered herein. No other
agreements, representations, warranties or other matters, oral or written,
purportedly agreed to or represented by or on behalf of Client by any of its
employees or agents shall be deemed to bind the parties hereto with respect to
the subject matter hereof.
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9. Applicable Law. This Agreement shall be construed in accordance with
the laws of the Commonwealth of Pennsylvania.
10. Scope of Agreement. If the scope of any of the provisions of the
Agreement is too broad in any respect whatsoever to permit enforcement to its
full extent, then such provisions shall be enforced to the maximum extent
permitted by law, and the parties hereto consent and agree that such scope may
be judicially modified accordingly and that the whole of such provisions of this
Agreement shall not thereby fail, but that the scope of such provisions shall be
curtailed only to the extent necessary to conform to law.
11. Assignment. This Agreement may not be assigned by Consultant
without the prior written consent of the Client. Except for the prohibition on
assignment contained in the preceding sentence, this Agreement shall be binding
upon and inure to the benefits of the heirs, successors and assigns of the
parties hereto.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of
the date first above written.
Client:
Date:
-----------------------------------
Windsortech, Inc.
Consultant:
Date:
-----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇, Ph.D.
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EXHIBIT J
FORM OF ▇▇▇▇▇▇▇▇▇ LETTER
WINDSORTECH, INC (formerly DELTA STATES OIL, INC.)
▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
January 31, 2002
▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
,XXXXX
Dear ▇▇. ▇▇▇▇▇▇▇▇▇:
Enclosed herewith are 600,000 shares (the "Shares") of Common Stock of
Windsortech, Inc. (formerly Delta States Oil, Inc.), in full satisfaction of
what we understand has been a pre-existing obligation of Delta States Oil, Inc.
to you, delivered to satisfy the alleged outstanding obligation of Delta States
Oil, Inc.
Acceptance of the Shares and acknowledgement below indicate that you
completely and fully understand and voluntarily accept and hereby release
forever Windsortech, Inc. from all claims for the purpose of making a full and
final compromise, adjustment, and settlement of any and all claims, disputed or
otherwise, with Delta States Oil, Inc. and for the express purpose of precluding
forever any further additional claims or demands by you against Delta States
Oil, Inc.
YOU UNDERSTAND THAT YOU HAVE BEEN ADVISED TO CONSULT AN ATTORNEY BEFORE SIGNING
THIS RELEASE OF ALL CLAIMS, AND HAVE HAD THE OPPORTUNITY TO DO SO BEFORE SIGNING
THIS RELEASE OF ALL CLAIMS OR ACCEPTING ANY CONSIDERATION FROM DELTA STATES OIL,
INC.
WINDSORTECH, INC.
By
---------------------------------
President
IN WITNESS WHEREOF, I hereby accept the shares referred to in the
foregoing letter and grant the full Release described therein.
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WITNESS:
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Dated:
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