EXHIBIT 99.2
PLAN AND AGREEMENT OF MERGER
BY AND AMONG
LASV ENTERPRISES, INC.,
DCT COMBINATION, INC.
AND
D.C.T. CORPORATION LTD.
FEBRUARY 19, 2001
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND INTERPRETATION...........................................1
1.1 Definitions..............................................................1
1.2 Interpretation...........................................................5
1.3 Knowledge................................................................5
ARTICLE II THE MERGER...............................................................6
2.1 The Merger...............................................................6
2.2 Merger Consideration.....................................................6
2.3 Closing and Effective Time of the Merger.................................6
ARTICLE III REPRESENTATIONS AND WARRANTIES OF
LASV PARTIES.............................................................6
3.1 Organization of LASV.....................................................6
3.2 Authority Relative to this Agreement.....................................6
3.3 No Violations............................................................7
3.4 Consents and Approval....................................................7
3.5 LASV Capitalization......................................................7
3.6 SEC Filings..............................................................8
3.7 Absence of Certain Changes...............................................8
3.8 Litigation...............................................................8
3.9 Brokers..................................................................9
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF DCT....................................9
4.1 General..................................................................9
4.2 Governmental Licenses and Permits; Compliance with Laws.................10
4.3 Intellectual Property...................................................10
4.4 Labor Matters...........................................................11
4.5 Undisclosed Liabilities.................................................11
4.6 No ERISA Plans..........................................................11
4.7 Transactions with Affiliates............................................11
4.8 Brokers.................................................................12
4.9 Investment Representations..............................................12
ARTICLE V COVENANTS OF LASV PARTIES PENDING CLOSING...............................12
5.1 Notice of Certain Events................................................12
5.2 Access and Information..................................................12
5.3 LASV Shareholders' Meeting..............................................13
5.4 Confidentiality.........................................................13
5.5 No Solicitation.........................................................13
5.6 Consummation of the Merger..............................................13
ARTICLE VI COVENANTS OF DCT PENDING CLOSING........................................13
6.1 Conduct of Business.....................................................13
6.2 Access and Information..................................................14
6.3 Confidentiality.........................................................14
6.4 No Solicitation.........................................................14
6.5 Supplemental Information................................................14
6.6 Consummation of the Merger..............................................15
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ARTICLE VII CONDITIONS TO OBLIGATIONS OF LASV.......................................15
7.1 Representations True at Closing.........................................15
7.2 Opinion of DCT Counsel..................................................15
7.3 Consents................................................................15
7.4 Other Documents.........................................................15
ARTICLE VIII CONDITIONS TO DCT OBLIGATIONS...........................................16
8.1 LASV Parties Representations True at Closing............................16
8.2 Opinion of LASV's Counsel...............................................16
8.3 Other Documents.........................................................16
ARTICLE IX ADDITIONAL AGREEMENTS...................................................16
9.1 Consents and Approvals..................................................16
9.2 Publicity...............................................................16
9.3 Expenses................................................................17
9.4 Conveyance Taxes........................................................17
9.5 Name/Symbols Reservation and Charter Amendment..........................17
9.6 Anitrust Filings, etc...................................................17
ARTICLE X NATURE AND SURVIVAL OF
REPRESENTATIONS AND WARRANTIES..........................................17
10.1 Nature of Statements....................................................17
10.2 Survival of Representations and Warranties..............................18
ARTICLE XI INDEMNIFICATION.........................................................18
11.1 Indemnification Regarding Article IV Representations, Warranties
and DCT Covenants.......................................................18
11.2 Indemnification by LASV.................................................18
11.3 Requests for Indemnification............................................18
ARTICLE XII AMENDMENT AND TERMINATION...............................................20
12.1 Amendment...............................................................20
12.2 Waiver..................................................................20
12.3 Termination.............................................................20
12.4 Consequences of Termination.............................................20
ARTICLE XIII GENERAL PROVISIONS......................................................21
13.1 Non-Business Days.......................................................21
13.2 Shareholder Consent.....................................................21
13.3 Notices.................................................................21
13.4 Entire Agreement........................................................22
13.5 Assignment; Binding Effect..............................................22
13.6 Counterparts............................................................22
13.7 Governing Law; Jurisdiction; Venue......................................22
13.8 Severability of Provisions..............................................22
13.9 Specific Performance....................................................23
13.10 Joint Drafting..........................................................23
13.11 Captions................................................................23
13.12 No Third-Party Beneficiaries............................................23
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ANNEX AND EXHIBITS
Annex A - Plan of Merger.
Exhibit A - Form of Legal Opinion relating to DCT.
Exhibit B - Form of Legal Opinion relating to LASV.
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PLAN AND AGREEMENT OF MERGER
This PLAN AND AGREEMENT OF MERGER ("Agreement") is entered into on this
19th day of February, 2001, among LASV Enterprises Inc., a Delaware corporation
("LASV"), DCT Combination, Inc., a State of Washington corporation and wholly
owned subsidiary of LASV ("Merger Subsidiary"), both of which are together
referred to in this Agreement as the "LASV Parties," and D.C.T. Corporation
Ltd., a Bahamas corporation ("DCT").
W I T N E S S E T H:
WHEREAS, DCT is the legal owner of, among other things, a promising new
development in the technology known as "Dynamic Chaos," which has been
developed, patented and demonstrated by DCT's principal shareholders. This new
development in Dynamic Chaos technology has been used to transmit data at a
high-speed rate through radio microwave broadband signals. DCT is currently
preparing patent filings for the application of this technology and intends to
license this technology.
WHEREAS, DCT's other assets include, without limitation, the exclusive
ownership and rights to manufacture, market and distribute a related software
search engine currently known under the name "Forget-Me-Not" and recorded under
United States Patent Number 5,774,587, as well as the rights to an internet web
site, which describes the "Forget-Me-Not" software at
▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.
WHEREAS, the parties to this Agreement (the "Parties") wish to effect a
business combination in which Merger Subsidiary will merge into DCT in a merger
(the "Merger") to be consummated under the laws of the State of Washington and
the Companies Act, 1992 of the Bahamas (the "Companies Act").
NOW, THEREFORE, in consideration of the premises and of the
representations, warranties and covenants herein contained, the Parties to this
Agreement agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
1.1 Definitions. In this Agreement:
"Affiliate" means a Person that directly, or indirectly
through one or more intermediaries, controls, is controlled by or is
under common control with another Person with the terms "control" and
"controlled" meaning for purposes of this definition, the power to
direct the management and policies of a Person, directly or indirectly,
whether through the ownership of voting securities or partnership or
other ownership interests, or by contract or otherwise.
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"Alternate Transaction" means with respect to a given Party
any proposal or offer for a merger, consolidation, acquisition,
business combination, sale of all or a substantial portion of assets,
liquidation, recapitalization or other reorganization involving that
Party, or any proposal or offer for the acquisition in any manner of a
substantial equity interest in that Party, other than the transactions
contemplated hereby.
"Business Day" means a day other than Saturday, Sunday or any
day on which banks located in the United States are authorized or
obligated to close.
"Charter Documents" mean (i) in the case of any Person which
is a corporation, its articles or certificate of incorporation and
bylaws, or other similar governing documents under the jurisdiction in
which it is formed, and each certificate or other document setting
forth the designation, amount and relative rights, limitations and
preferences of any class or series of the corporation's capital stock,
(ii) in the case of any Person which is a partnership, its partnership
agreement and, if it is a limited partnership, its certificate of
limited partnership, or other similar governing documents under the
jurisdiction in which it is formed, and (iii) in the case of any Person
which is a limited liability company, its articles or certificate of
organization and its regulations or limited liability company
agreement, or other similar governing documents under the jurisdiction
in which it is formed.
"Closing" has the meaning specified in Section 2.3.
"Closing Date" means February 19, 2001.
"Code" means the United States Internal Revenue Code of
1986, as amended.
"Companies Act" has the meaning specified in the preamble to
this Agreement.
"Damages" mean all obligations, claims, liabilities, damages,
penalties, deficiencies, losses, investigations, proceedings,
judgments, fines, and reasonable costs and expenses (including
reasonable costs and expenses incurred in connection with the
performance of obligations, interest, bonding and court costs and
attorneys', accountants', engineers', consultants' and investigators'
fees and disbursements) and disbursements incurred in connection with
any investigation or defense of any of the foregoing.
"DCT Business" means (i) the research and development
associated with the technology known as Dynamic Chaos, which uses
dynamic chaos technology and chaotic oscillations to transmit data at a
high speed rate through radio microwave broadband signals, together
with the commercial exploitation and licensing of such technology and
any patent or other intellectual property owned by DCT and associated
with such technology on a worldwide basis (other than within the
Russian Federation), (ii) developing, marketing, distributing, or
further improving or developing of a related software search engine,
currently marketed under the name Forget-Me-Not, together with the
commercial
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exploitation and licensing of such software and any patent or other
intellectual property owned by DCT and associated therewith on a
worldwide basis (other than within the Russian Federation), (iii) any
further developments or spin-offs related to the foregoing technology,
and (iv) all activities associated with or incidental to the foregoing.
"DCT Disclosure Schedule" means the Disclosure Schedule signed
for identification purposes only by the principal executive officer of
DCT, which DCT has delivered to, and which has been reviewed and
accepted by, the LASV Parties on or before the date of this Agreement,
and which contains information relevant to the representations and
warranties made by the DCT Parties in Articles IV and V.
"DCT Shares" mean at any date all of the shares of DCT Stock
issued and outstanding as of such date.
"DCT Stock" means the capital stock of DCT as authorized by
its Charter Documents.
"Effective Time" means the time and date when the Merger
becomes effective under the Plan of Merger.
"Employment Agreements" mean the Employment Agreements
specified in Section 4.4 of the DCT Disclosure Schedule.
"Exchange Act" means the U.S. Securities Exchange Act of 1934,
as amended, and the rules and regulations of the SEC promulgated under
that Act.
"GAAP" means U.S. generally accepted accounting principles
consistently applied throughout the specified period and, if
applicable, the immediately preceding comparable period.
"Governmental Entity" means any U.S. federal, state, local or
foreign court, executive office, legislature, governmental agency or
ministry, commission, or administrative, regulatory or self-regulatory
authority or instrumentality.
"HSR" means the U.S. ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements
Act of 1976, as amended.
"Law" means a law, statute, ordinance, rule, code or
regulation enacted or promulgated, or order, directive, instruction or
other legally binding guideline or policy issued or rendered by, any
Governmental Entity.
"Lien" means a lien, mortgage, deed of trust, deed to secure
debt, pledge, hypothecation, assignment, deposit arrangement, easement,
preference, priority, assessment,
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security interest, lease, sublease, charge, claim, adverse claim, levy,
interest of other Persons, or other encumbrance of any kind.
"Mailing Date" has the meaning specified in Section 6.5.
"Material Adverse Effect" means when used with reference to a
Party, a material adverse effect on the financial condition, business
or results of operations of that Party and its Subsidiaries taken as a
whole, without giving effect to the consummation of the transactions
contemplated hereby.
"Merger" has the meaning specified in the preamble of this
Agreement.
"Merger Shares" mean the aggregate of 90,500,000 shares of
LASV Common Stock to be issued to the DCT Shareholders as contemplated
in Section 2.2 and the Plan of Merger.
"Permitted Liens" mean those Liens with respect to (i) current
taxes not yet due and payable and (ii) other Liens (including
mechanics, couriers', workers', repairers', landlords', materialmen's,
warehousemen's and other similar liens) arising in ordinary course of
business as would not in the aggregate materially adversely affect the
value of, or materially interfere with the use of, the property subject
thereto.
"Person" means an individual, corporation, partnership,
association, joint stock company, limited liability company,
Governmental Entity, business trust, unincorporated organization, or
other legal entity.
"LASV Charter Amendments" has the meaning specified in Section
6.5.
"LASV Common Stock" means the Common Stock, $.001 par value
per share, of LASV.
"LASV SEC Filings" has the meaning specified in Section 3.6.
"SEC" means the U.S. Securities and Exchange Commission or any
successor agency.
"Securities Act" means the U.S. Securities Act of 1933, as
amended, and the rules and regulations of the SEC promulgated
thereunder.
"Subsidiary" of a Party means an Affiliate of that Party in
which 50% or more of its aggregate voting power (or any other voting,
membership, partnership or joint venture equity interest in the case of
an Affiliate that is not a corporation) is beneficially owned by that
Party directly or indirectly through one or more other Persons.
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"Tax" means any tax of any kind, however denominated,
including any interest, penalties or other additions to tax that may
become payable in respect thereof or in respect of a failure to comply
with any requirement relating to any Tax Return, imposed by any U.S.
federal, foreign, state or local Governmental Entity, including all
income, gross income, gross receipts, profits, goods and services,
social security, old age security, sales and use, ad valorem, excise,
franchise, business license, occupation, real property gains, payroll
and employee withholding, unemployment insurance, real and personal
property, stamp, environmental, transfer, workers' compensation,
severance, alternative minimum, windfall, and capital taxes, and other
obligations of the same or a similar nature to any of the foregoing.
"Taxing Authority" means any Governmental Entity responsible
for the imposition, assessment, enforcement or collection of any Tax.
"Tax Returns" mean all Tax returns, declarations, reports,
estimates, information returns and statements required to be filed with
any Taxing Authority, or provided to any partner, shareholder, joint
venturer or member under U.S. federal, foreign, state, or local Laws
(including reports with respect to backup withholding and payments to
Persons other than Taxing Authorities), and annual tax returns on
behalf of employee benefit plans sponsored by LASV or DCT or any of
their respective Subsidiaries.
1.2 Interpretation. Capitalized terms defined in this Agreement are
equally applicable to both their singular and plural forms. References in this
Agreement to a designated "Article" or "Section" refer to an Article or Section
of this Agreement, unless otherwise specifically indicated. All pronouns in this
Agreement shall be construed as including both genders and the neuter. In this
Agreement, "including" is used only to indicate examples, without limitation to
the indicated examples, and without limiting any generality which precedes it.
1.3 Knowledge. When a representation and warranty in Article III is
made to the "knowledge" of either LASV Party, it means receipt of notice by or
actual knowledge of the Chairman of the Board, the President and Chief Executive
Officer, the Chief Financial Officer or any Vice President of LASV. When a
representation and warranty in Articles IV and V is made to the "knowledge" of
DCT, it means receipt of notice by or actual knowledge of any officer of DCT. No
representation or warranty by any Party may be qualified or limited by reference
to knowledge of such Party unless due inquiry has actually been made by such
Party.
ARTICLE II
THE MERGER
2.1 The Merger. Subject to satisfaction of the conditions set forth in
this Agreement at the Effective Time, Merger Subsidiary shall be merged with and
into DCT in accordance with the Laws of the State of Washington and the
Companies Act.
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2.2 Merger Consideration. As more fully provided in, and subject to the
terms and provisions of, the Plan of Merger, all of the DCT Shares issued and
outstanding immediately before the Effective Time will, as a result of the
Merger, be converted into an aggregate of 90,500,000 shares of LASV Common
Stock.
2.3 Closing and Effective Time of the Merger. The closing of the Merger
(the "Closing") shall take place in British Columbia, Canada, as is mutually
agreeable to LASV and DCT, on the Closing Date. As soon as practicable after the
Closing, DCT and Merger Subsidiary will cause Articles of Merger to be executed
and filed with the Secretary of State of Washington and the Bahamas Registrar as
required by the laws of the State of Washington and the Companies Act.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF LASV PARTIES
The LASV Parties jointly and severally represent and warrant to the DCT
Parties that:
3.1 Organization of LASV. Each LASV Party is a corporation duly
organized, validly existing and in good standing under the Laws of the State of
Delaware and Washington, respectively. Each LASV Party has full corporate power
and authority to conduct its business as it is currently being conducted. Each
LASV Party is duly qualified to do business, and in good standing, in each
jurisdiction where the nature of its properties or business requires such
qualification. The LASV Parties have delivered to DCT true, correct and complete
copies of the Charter Documents of each LASV Party.
3.2 Authority Relative to this Agreement. Each LASV Party has the
requisite corporate power and authority to enter into and perform its
obligations under this Agreement. The execution and delivery of this Agreement,
the consummation of the transactions contemplated hereunder, and the issuance
and delivery of the Merger Shares have been duly authorized by the respective
Boards of Directors of the LASV Parties. No other corporate proceedings on the
part of either LASV Party is necessary to authorize this Agreement, or the
transactions contemplated hereunder. This Agreement has been duly executed and
delivered by LASV. Assuming the valid authorization, execution and delivery of
this Agreement by DCT, this Agreement is a valid and binding obligation of LASV,
enforceable against LASV in accordance with its terms, except as enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
Laws relating to or affecting creditors' rights generally or by equitable
principles.
3.3 No Violations. The execution, delivery and performance of this
Agreement by the respective LASV Parties will not:
(i) constitute a breach or violation of or default under the
Charter Documents of either LASV Party or of any LASV Subsidiaries or,
assuming the obtainment of the
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consents and approvals described in clause (i) of Section 3.4, any Law
applicable to either LASV Party; or
(ii) except as accurately set forth on Schedule 3.3 of the
LASV Disclosure Schedule, violate or conflict with or result in a
breach of, or constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default) under or result in
the termination of, or accelerate the performance by, or result in a
right of termination under, or result in the creation of any Lien upon
the assets or properties of LASV or any of its Subsidiaries under, any
contract, indenture, loan document, license, permit, order, decree or
instrument to which LASV or any of its Subsidiaries is a party or by
which any of them or their assets or properties are bound.
3.4 Consents and Approval. No consent, order, approval, waiver or
authorization of, or registration, application, declaration or filing with, any
Person is required with respect to either LASV Party or any LASV Subsidiary in
connection with the execution and delivery of this Agreement, the issuance of
the Merger Shares or the consummation of the transaction contemplated hereby
except for:
(i) the consents and approvals described on Section 3.4 of the
LASV Disclosure Schedule.
3.5 LASV Capitalization. The authorized capital stock of LASV consists
of (i) 100 million shares of LASV Common Stock, $.001 par value, and (ii) 1
million shares of Preferred Stock, $.001 par value, of LASV ("LASV Preferred
Stock"). As of the date hereof 5,921,842 shares of LASV Common Stock, and no
shares of LASV Preferred Stock, are issued and outstanding. All of the issued
and outstanding shares of LASV Common Stock are duly and validly issued, fully
paid and non-assessable, and were issued free of preemptive rights, in
compliance with any rights of first refusal. No subscription, warrant, option,
convertible security, stock appreciation or other right (contingent or other) to
purchase or acquire any shares of any class of capital stock of LASV or any of
its Subsidiaries is authorized or outstanding, and there is not outstanding any
commitment of LASV or any of its Subsidiaries to issue any shares, warrants,
options or other such rights or to distribute to holders of any class of its
capital stock any evidences of indebtedness or assets. Neither LASV nor any of
its Subsidiaries has any contingent or other obligation to purchase, redeem or
otherwise acquire any shares of its capital stock or any interest therein or to
pay any dividend or make any other distribution in respect thereof. LASV is not
a party, and has no knowledge that any LASV Shareholders are parties, to any
voting agreement, voting trust or similar agreement or arrangement relating to
LASV's capital stock.
The authorized capital stock of Merger Subsidiary consists of 1,000
shares of common stock, par value $.001 per share, all of which shares are
issued and outstanding and owned by LASV.
Upon their issuance, the Merger Shares will be duly authorized, validly
issued, fully paid and non-assessable shares of LASV Common Stock.
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3.6 SEC Filings. LASV has filed all forms, reports and documents
required to be filed by them with the SEC since its inception, and LASV has made
available to DCT true and complete copies of (i) the Annual Report on Form
10-KSB of LASV for the year ended December 31, 2000, and (ii) all other reports
(including any Current Reports on Form 8-K), statements and registration
statements filed by LASV with the SEC since inception (collectively, the "LASV
SEC Filings"). The LASV SEC Filings, including all financial statements or
schedules included in them, (i) comply in all material respects with the
requirements of the Securities Act or the Exchange Act, as the case may be, and
(ii) did not at the time of their filing (or if amended, supplemented or
superseded by a later filing, on the date of the later filing) contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading.
3.7 Absence of Certain Changes. Except as set forth in Section 3.7 of
LASV Disclosure Schedule, since February 1, 2001, LASV and its Subsidiaries have
conducted their businesses only in the ordinary course, consistent with past
practice, and there has not occurred a Material Adverse Effect, or any event
that could reasonably be expected to result in a Material Adverse Effect, on
LASV and the Subsidiaries considered as a whole.
3.8 Litigation. Except as disclosed in Section 3.8 of LASV Disclosure
Schedule, there is no suit, action, investigation or proceeding pending or, to
the knowledge of the LASV Parties, threatened against LASV or any of its
Subsidiaries at Law or in equity before or by any Governmental Entity or before
any arbitrator or mediator of any kind, and there is no judgment, decree,
injunction, rule or order of any Governmental Entity, arbitrator or mediator to
which LASV or any of its Subsidiaries are subject. Neither LASV Party has
knowledge of any grounds on which any suit, action, investigation or proceeding
of the nature referred to in this Section 3.8 might be commenced with any
reasonable likelihood of success.
3.9 Brokers. No broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission in connection with this Agreement
or the transactions contemplated hereby based upon arrangements made by or on
behalf of the LASV Parties.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF DCT
DCT represents and warrants to the LASV Parties that:
4.1 General. Except as set forth in Section 4.1 of the DCT Disclosure
Schedule:
(i) DCT is a corporation formed on August 31, 2000 and is duly
organized, validly existing and in good standing under the laws of the
Bahamas, has full authority and corporate power to conduct its business
as presently conducted, and is not required to be qualified to do
business as a foreign corporation in any other jurisdiction;
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(ii) DCT has delivered to the LASV true and correct copies of
the DCT Charter Documents;
(iii) DCT has the requisite corporate power and authority to
enter into and perform its obligations under this Agreement. The
execution and delivery of this Agreement and consummation of the
transactions contemplated hereunder have been duly authorized by the
Board of Directors of DCT, and no other corporate proceedings on the
part of DCT or the DCT shareholders are necessary to authorize this
Agreement or the consummation of the transactions contemplated
hereunder. Assuming the valid authorization, execution and delivery of
this Agreement by the LASV Parties, this Agreement is a valid and
binding obligation of DCT, enforceable against DCT in accordance with
its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other Laws relating to or
affecting creditors' rights generally or by equitable principles;
(iv) The execution, delivery and performance of this Agreement
will not (x) constitute a breach or violation of or default under the
DCT Charter Documents or any Law applicable to the DCT or (y) violate
or conflict with or result in a breach of, or constitute a default (or
an event which, with notice or lapse of time or both, would constitute
a default) under or result in the termination of, or accelerate the
performance by, or result in the termination under, or result in the
creation of Lien upon the assets of DCT under any contract, agreement,
or instrument to which DCT is a party or by which any of its assets are
bound;
(v) No consent, approval, waiver, authorization of, or
registration, application, declaration or filing with, any Person is
required with respect to DCT in connection with the execution and
delivery of this Agreement or consummation of the transactions
contemplated hereby;
(vi) DCT does not have any assets, rights or properties other
than the assets set forth on Schedule 4.3 of the DCT Disclosure
Schedule and its rights under the Employment Agreements;
(vii) DCT is not a party to or bound by, nor are its assets or
properties subject to any contract or agreement other than the DCT
Charter Documents and the Employment Agreements;
(viii) The DCT Shares owned and held by the DCT shareholders
and to be exchanged in the Merger under this Agreement represent all of
the issued and outstanding shares of DCT, and no subscription, warrant,
option, convertible security, stock appreciation or other right
(contingent or other) to purchase or acquire any shares of any class of
capital stock of DCT is authorized or outstanding and there is not
outstanding any commitment of DCT to issue any shares, warrants,
options or other such rights or to distribute to holders of any class
of its capital stock any evidences of indebtedness or assets;
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(ix) DCT has no Subsidiaries, and does not otherwise have any
equity investment in any corporation, partnership or joint venture or
other business entity;
(x) There is no suit, action, investigation or proceeding
pending or, to DCT's knowledge threatened, against DCT at Law or in
equity before or by any Governmental Entity or before any arbitrator or
mediator of any kind and there is no judgment, decree, injunction, rule
or order of any Governmental Entity, arbitrator or mediator to which
DCT is subject; and
(xi) Except with respect to persons with Employment
Agreements, DCT does not have, and has not had, any employees, and DCT
has not conducted any business or operations other than to hold the
assets set forth in Section 4.3 of the DCT Disclosure Schedules and to
conduct demonstrations and presentations relating thereto.
4.2 Governmental Licenses and Permits; Compliance with Laws. DCT has
not received notice of any revocation or modification of any licence,
certification, tariff, permit, registration, exemption, approval or other
authorization by any Governmental Entity, and DCT is in compliance in all
material respects with all applicable Laws.
4.3 Intellectual Property. DCT owns, or has a valid license or other
right to use, all patents, trademarks, service marks, trade names, copyrights,
trade secrets, technology, know-how and other intellectual property (the
"Intellectual Property") necessary to or used in the conduct of the business of
DCT as now conducted and as proposed to be conducted. Section 4.3 of the DCT
Disclosure Schedule contains a complete and accurate list, including the date of
grant and the expiration date of, all patents, patent applications, trademarks
and service marks and related applications, trade names and copyrights owned by
or licensed to DCT. Section 4.3 of the DCT Disclosure Schedule also contains a
description, including the date of execution, scheduled termination date and
allowed extension periods, as applicable, of all agreements or licenses relating
to the acquisition by or license to DCT of such Intellectual Property or under
which DCT has sold or granted a right to use any Intellectual Property. All
Intellectual Property owned by DCT is owned by it or them free and clear of all
Liens, except Permitted Liens. The conduct of DCT's business does not conflict
with or infringe upon any Intellectual Property rights of any other person and
no claims of conflict or infringement are pending or, to the knowledge of DCT
threatened, against DCT. DCT has made all necessary filings and recordations and
has paid all required fees and Taxes to maintain ownership of the Intellectual
Property.
4.4 Labor Matters. There is no labor strike, dispute, slowdown, work
stoppage, unresolved labor union grievance or labor arbitration proceedings
pending or, to the knowledge of DCT threatened, against DCT, and no current
union organizing activities among employees of DCT. Except for the employees who
are parties to those certain Employment Agreements accurately listed on Section
4.4 of the DCT Disclosure Schedule, as of the date hereof, DCT has no employees.
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4.5 Undisclosed Liabilities. Except as accurately set forth in Section
4.5 of the DCT Disclosure Schedule, DCT has no debts, liabilities or
obligations, known or unknown, fixed or contingent, other than those arising
under the Employment Agreements, the Institute Contract and the Amendment to the
Assignment Agreement, copies of which have been provided to the LASV Parties.
4.6 No ERISA Plans. DCT has no benefit plans which are subject to
provisions of the Employee Retirement Income Security Act of 1974, as amended
("ERISA") or the Code or any comparable provision of any non-U.S. Law. DCT has
not engaged in any transaction with respect to any benefit plan for which it
could be subject, directly or indirectly, to a material liability for either
civil penalty assessed pursuant to Section 502(i) of ERISA or a material penalty
imposed by the Code or any comparable provisions of any non-U.S. law.
4.7 Transactions with Affiliates: Except as set forth in Section 4.7 of
the DCT Disclosure Schedule, no Affiliate of DCT:
(i) is a party to or has any interest in any contract or
agreement with DCT;
(ii) has any outstanding loan to or receivable from DCT; or
(iii) has any ownership interest (other than a stock ownership
interest representing less than 1% of the outstanding stock of any
corporation which is publicly traded), directly, indirectly, or
beneficially, in any customer of or supplier to DCT.
4.8 Brokers. Except as set forth on Section 4.8 of the DCT Disclosure
Schedule, no broker, finder or investment banker is entitled to any brokerage,
finder's or other fee or commission in connection with this Agreement or the
transactions contemplated hereby based upon arrangements made by or on behalf of
any DCT Party.
4.9 Investment Representations.
(a) Merger Shares Not Registered. The issuance of the Merger
Shares, has not been registered under the Securities Act, or registered
or qualified under any applicable state or foreign securities laws.
(b) Restrictive Legend. In addition to any other legends
required by law or the other agreements entered into in connection
herewith, the certificates evidencing the Merger Shares issued pursuant
to this Agreement will bear a conspicuous restrictive legend
substantially as follows:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED ("ACT"), OR UNDER ANY
APPLICABLE STATE SECURITIES LAWS,
11
AND THEY CANNOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH THE
REGISTRATION REQUIREMENTS OF THE ACT AND SUCH OTHER STATE LAWS
OR UPON DELIVERY TO THIS CORPORATION OF AN OPINION OF LEGAL
COUNSEL REASONABLY SATISFACTORY TO THE CORPORATION THAT AN
EXEMPTION FROM REGISTRATION IS AVAILABLE.
ARTICLE V
COVENANTS OF LASV PARTIES PENDING CLOSING
The LASV Parties agree that pending the Closing:
5.1 Notice of Certain Events. LASV shall notify DCT of any matter or
event which comes to the knowledge of the LASV Parties which makes or could make
any representation and warranty made concerning LASV or any of its Subsidiaries
in Article III untrue.
5.2 Access and Information. LASV shall give DCT and its representatives
full access during normal business hours to all the properties, books,
contracts, commitments and records of LASV and its Subsidiaries so that DCT and
the DCT Shareholders may have full opportunity to make such investigation of
LASV and its Subsidiaries as they shall reasonably request in advance.
5.3 LASV Shareholders' Meeting. LASV hereby represents that in excess
of ninety percent (90%) of the LASV shareholders have approved this transaction
by written Resolution in lieu of a shareholders meeting (a copy of which has
been delivered to DCT), and therefore it is not necessary or required to call a
special meeting of the LASV shareholders to be held to vote to approve (i) the
issuance of the Merger Shares in connection with the Merger, (ii) any amendments
to the LASV Charter Documents to change the corporate name to "Dynamic Chaos
Technology, Inc." as soon as practicable after the Closing (the "LASV Charter
Amendments"), or (iii) any other matters related to this Agreement or the
implementation thereof.
5.4 Confidentiality. Except for information required or appropriate for
inclusion in any application, filing, statement or notice to be filed by the
LASV Parties with any Governmental Entity, all information and data furnished by
the DCT Parties to the LASV Parties under this Agreement shall be received, held
and treated confidentially by LASV, and none of such information shall be used
in any manner for the benefit of LASV or any of its Subsidiaries or for the
benefit of any business controlled by it or them.
5.5 No Solicitation. LASV will immediately terminate any existing
activities, discussions and negotiations with third parties concerning any
possible Alternative Transaction involving LASV. LASV will not, and it will not
cause or permit its Subsidiaries and the respective officers, directors,
representatives, agents or representatives of LASV or its Subsidiaries to,
directly
12
or indirectly knowingly encourage, solicit or initiate any discussions or
negotiations with any Person concerning any Alternative Transaction involving
LASV.
5.6 Consummation of the Merger. The LASV Parties shall use their
commercially reasonable best efforts to perform and fulfill all conditions and
obligations on their part to be performed and fulfilled under this Agreement to
the end that the Merger is consummated.
ARTICLE VI
COVENANTS OF DCT PENDING CLOSING
DCT agrees that pending the Closing:
6.1 Conduct of Business. DCT shall conduct its operations according to
its ordinary and usual course of business, and shall use its commercially
reasonable best efforts to preserve intact its business organization, keep
available the services of its officers and employees and maintain normal
business relationships with customers, clients and others having business
relationships with it. DCT shall confer on a regular and frequent basis with one
or more designated representatives of LASV to report on operational matters of
materiality and to report the general status of ongoing operations of DCT. DCT
shall notify LASV of:
(i) any unexpected material emergency or other material change
in the normal course of business or in the operation of the properties
of DCT;
(ii) any significant development in any regulatory
proceedings, governmental complaints, investigations or hearings (or
communication indicating that any may be contemplated) involving DCT;
and
(iii) any matter or event which comes to the knowledge of DCT
and which makes or could make any representation and warranty made
concerning DCT in Articles IV or V untrue or inaccurate.
DCT shall keep LASV fully informed of such events and permit
representatives of LASV access to all materials prepared in connection with such
events.
6.2 Access and Information. DCT shall give LASV and its representatives
access during normal business hours to all the properties, books, contracts,
commitments and records of DCT so that LASV may have full opportunity to make
such investigation of DCT as they shall reasonably request in advance. DCT will
furnish LASV all information concerning DCT required for inclusion in any
application, filing, statement or notice made by LASV to, or filed or joined in
by LASV with, any Government Entity in connection with this Agreement or the
transactions contemplated hereunder. None of the information furnished to LASV
under this Section 6.3 shall, at the date furnished, contain any untrue
statement of a material fact or omit to state any material
13
fact necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading.
6.3 Confidentiality. All information and data furnished to DCT by LASV
or any of its Subsidiaries under this Agreement, whether furnished orally or in
writing, shall be received, held and treated confidentially by DCT, and none of
such information shall be used in any manner for the benefit of DCT or for the
benefit of any business controlled by it.
6.4 No Solicitation. Except with respect to a Transaction relating to
the issuance of DCT capital stock permitted by clause (ii) of Section 6.2, DCT
will immediately terminate any existing activities, discussions and negotiations
with third parties concerning any possible Alternative Transaction involving
DCT. DCT will not cause or permit its officers, directors, representatives,
agents or representatives to, directly or indirectly, knowingly encourage,
solicit or initiate any discussions or negotiations with any Person concerning
any such Alternative Transaction. DCT will promptly communicate to LASV the
terms and conditions of any proposal for any such Alternative Transaction that
it may receive.
6.5 Supplemental Information. DCT shall furnish LASV subsequent to the
Closing, a copy of an audited financial statement as soon as practicable,
together with any information ordinarily prepared in connection with such
financial statements. All such financial statements shall be prepared in
conformity with GAAP, shall present fairly in all material respects in
accordance with GAAP, the financial position of DCT at the end of the periods
covered thereby and the results of its operations for the periods covered
thereby, subject to year-end adjustments (consisting of normal recurring
accruals) and the omission of explanatory footnote materials required by GAAP.
6.6 Consummation of the Merger. DCT shall use its commercially
reasonable best efforts to perform and fulfill all conditions and obligations on
its part to be performed and fulfilled under this Agreement, to the end that the
Merger shall be consummated.
ARTICLE VII
CONDITIONS TO OBLIGATIONS OF LASV
The obligations of the LASV Parties to consummate the Merger are
subject to the fulfillment of each of the following conditions on or before the
Closing Date:
7.1 Representations True at Closing. The LASV Parties shall not have
discovered any material error, misstatement or omission in the representations
and warranties made by DCT in Article IV and the representations and warranties
made by DCT in Article IV shall be deemed to have been made again as of the time
of the Closing, and shall then be true in all material respects.
14
7.2 Opinion of DCT Counsel. LASV shall have received an opinion, dated
as of the Closing Date, of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., counsel to DCT, in the form
attached as Exhibit A to this Agreement.
7.3 Consents. LASV shall have received duly executed copies of all
consents, authorizations, orders or approvals of any Governmental Entity or
Person required by DCT for execution of this Agreement or consummation of the
transactions contemplated hereunder including, if required, the expiration of
any waiting periods required by HSR or any comparable non-U.S. law with respect
to the transactions contemplated by this Agreement or early termination with
respect thereto shall have been obtained and without imposition of any actions
as a precondition to the expiration of any such waiting period.
7.4 Other Documents. LASV shall have received the certificates,
instruments and documents listed below:
(i) the certificates representing all of the issued and
outstanding DCT Shares as of the Closing Date, duly endorsed to LASV;
(ii) all stock transfer registers, minute books and other
corporate records pertaining to DCT; and
(iii) such other certificates, instruments and documents as
may be reasonably requested by LASV.
ARTICLE VIII
CONDITIONS TO DCT OBLIGATIONS
The obligations of DCT to consummate the Merger are subject to the
fulfillment of each of the following conditions on or before the Closing Date:
8.1 LASV Parties Representations True at Closing. DCT shall not have
discovered any material error, misstatement or omission in the representations
and warranties made by the LASV Parties in Article III, the representations and
warranties made by the LASV Parties in Article III shall be deemed to have been
made again as of the time of the Closing, and shall then be true in all material
respects; LASV shall have performed and complied with all agreements and
conditions required to be performed or complied with by it at or prior to the
Closing; and DCT shall have received certificates, each dated the Closing Date,
of the President or Vice President of each of LASV, to the effects set forth in
this Section 10.1.
8.2 Opinion of LASV's Counsel. DCT shall have received an opinion,
dated as of the Closing Date, of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., counsel to LASV, in
the form attached as Exhibit B to this Agreement.
15
8.3 Other Documents. The President of DCT, on behalf of all DCT
shareholders, shall have received the certificates, instruments and documents
listed below:
(i) stock certificates of LASV Common Stock representing the
Merger Shares; and
(ii) such other certificates, instruments and documents as may
be reasonably requested by the President of DCT.
ARTICLE IX
ADDITIONAL AGREEMENTS
9.1 Consents and Approvals. All Parties shall use their commercially
reasonable best efforts to obtain, before the Closing, all consents and
approvals from any Governmental Entity or Person that are necessary or required
by any Party for the execution of this Agreement or the consummation of the
transactions contemplated hereunder.
9.2 Publicity. No Party other than LASV shall issue any press release
or public announcement pertaining to this Agreement, the Merger, or any other
transactions contemplated hereunder. LASV and DCT shall consult with each other
concerning any such press release or public announcement and shall use their
best efforts to agree on its text before its public dissemination and before
making any filings with any Governmental Entity or national securities exchange
with respect to any such press release or public announcement. In cases where
LASV and DCT are unable to agree on a press release or public announcement, LASV
will not issue it unless the proposing Party is required to do so by Law, in
which case the Party so obligated shall use its best efforts to provide a copy
of the press release or public announcement to the other Party before its filing
or public dissemination.
9.3 Expenses. LASV shall pay its own costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby, and DCT
shall pay its costs and expenses in connection with this Agreement and the
transactions contemplated hereby, in each case whether or not the transactions
contemplated under this Agreement are consummated.
9.4 Conveyance Taxes. The Parties shall cooperate in the preparation of
all Tax Returns, questionnaires, applications or other documents regarding any
real property transfer tax, any stock transfer or stamp tax. This Section 9.4
does not apply or extend to any U.S. federal, foreign, state, or local income or
similar Tax.
9.5 Name/Symbols Reservation and Subsequent Charter Amendment. As soon
as practicable after the execution of this Agreement, LASV shall reserve the
corporate name "Dynamic Chaos Technology, Inc." in accordance with the the laws
of the State of Delaware, if available.
16
As soon as practicable after the closing of the Merger contemplated
hereunder, LASV shall amend its corporate name to "Dynamic Chaos Technology,
Inc.".
9.6 Anitrust Filings, etc. Each of LASV and DCT shall timely file and
promptly make any filing required under HSR or comparable non-U.S. law in
connection with the Merger. LASV and DCT shall furnish to the other Party such
information and assistance as the other Party may reasonably request in
connection with the other Party's preparation of filings or submissions to any
Governmental Entity including, without limitation, with respect to HSR. As
reasonably requested by the other party, LASV and DCT shall furnish the other
Party with copies of all correspondence, filings, communications between LASV
and DCT or their respective representatives, on the one hand, and the
representatives of the U.S. Federal Trade Commission, the Antitrust Division of
the U.S. Department of Justice, any comparable non-U.S. Governmental Entity, any
other Governmental Entity or members of their respective staffs, on the other
hand, with respect to this Agreement or the transactions contemplated hereby.
ARTICLE X
NATURE AND SURVIVAL OF
REPRESENTATIONS AND WARRANTIES
10.1 Nature of Statements. All, but only those, statements contained in
this Agreement or any Disclosure Schedule or certificate delivered by or on
behalf of a Party under this Agreement shall be deemed representations and
warranties made by that Party in connection with the transactions contemplated
by this Agreement.
10.2 Survival of Representations and Warranties. Regardless of any
investigation made at any time by or on behalf of any Party or of any
information any Party may have as a result of any such investigation, the
representations and warranties made by the LASV Parties in Article III, and the
representations and warranties made by DCT in Article IV, shall not survive, and
shall terminate upon, the Closing.
ARTICLE XI
INDEMNIFICATION
The respective indemnification obligations of the Parties are:
11.1 Indemnification Regarding Article IV Representations, Warranties
and DCT Covenants. DCT agrees to pay and to indemnify and hold harmless and
defend the LASV Parties and their respective Affiliates, and their respective
successors and assigns from and against any and all Damages caused by or arising
out of or in respect of:
17
(i) any breach or default in the performance by DCT of any
covenant or agreement of DCT contained in this Agreement; and
(ii) any breach of warranty or inaccurate or erroneous
representation contained in Article IV of this Agreement.
11.2 Indemnification by LASV. LASV agrees to pay and to indemnify and
hold harmless and defend DCT, its shareholders and its Affiliates (but not DCT
after the Closing), and their respective successors and assigns from and against
any and all Damages caused by or arising out of or in respect of:
(i) any breach or default in the performance by LASV of any
covenant or agreement of LASV contained in this Agreement; and
(ii) any breach of warranty or inaccurate or erroneous
representation contained in Article III of this Agreement.
11.3 Requests for Indemnification. If any Party (an "Indemnified
Party") becomes aware of a fact, circumstance, claim, situation, demand or other
matter for which it or any other Indemnified Party believes it is entitled to be
indemnified under this Article XIII (any such item being herein called an
"Indemnity Matter"), the Indemnified Party shall give prompt written notice of
the Indemnity Matter to the Indemnifying Party, requesting indemnification
therefor, specifying the nature of and specific basis for the Indemnity Matter
and the amount or estimated amount thereof to the extent then feasible;
provided, however, a failure to give such notice will not waive any rights of
the Indemnified Party except to the extent the rights of the Indemnifying Party
are actually materially prejudiced by such failure. The Indemnifying Party shall
have the right to assume the defense or investigation of such Indemnity Matter
and to retain counsel and other experts to represent the Indemnified Party and
shall pay the fees and disbursements of such counsel and other experts. If
within 30 days after receipt of the request (or five days if litigation is
pending) the Indemnifying Party fails to give notice to the Indemnified Party
that the Indemnifying Party assumes the defense or investigation of the
Indemnity Matter, an Indemnified Party may retain counsel and other experts
(whose fees and disbursements shall be at the expense of the Indemnifying Party)
to file any motion, answer or other pleading and take such other action which
the Indemnified Party reasonably deems necessary to protect its interests or
those of the Indemnifying Party until the date on which the Indemnified Party
receives such notice from the Indemnifying Party. If an Indemnifying Party
retains counsel and other experts, any Indemnified Party shall have the right to
retain its own counsel and other experts, but the fees and expenses of such
counsel and other experts shall be at the expense of the Indemnified Party
unless (i) the Indemnifying Party and the Indemnified Party mutually agree to
the retention of such counsel and other experts or (ii) the named parties to any
such proceeding (including any impleaded parties) include both the Indemnifying
Party and the Indemnified Party and representation of both parties by the same
counsel would, in the opinion of counsel retained by the Indemnifying Party, be
inappropriate due to actual or potential differing interests between them.
18
If requested by the Indemnifying Party, the Indemnified Party agrees to
cooperate with the Indemnifying Party and its counsel in contesting any
Indemnity Matter which the Indemnifying Party defends, or, if appropriate and
related to the Indemnity Matter in question, in making any counterclaim against
the person asserting the Indemnity Matter, or any cross-complaint against any
person. No Indemnity Matter may be settled by the Indemnified Party without the
consent of the Indemnifying Party, which consent will not be unreasonably
withheld. Unless the Indemnifying Party agrees in writing that the Damages to
the Indemnified Party resulting from such settlement are fully covered by the
indemnities provided herein and that such Damages are fully compensable in
money, no Indemnity Matter may be settled without the consent of the Indemnified
Party, which consent will not be unreasonably withheld. Except with respect to
settlements entered without the Indemnified Party's consent pursuant to the
immediately preceding sentence, to the extent it is determined that the
Indemnified Party has no right under this Article XIII to be indemnified by the
Indemnifying Party, the Indemnified Party shall promptly pay to the Indemnifying
Party any amounts previously paid or advanced by the Indemnifying Party with
respect to such matters pursuant to this Article XIII.
After the delivery of a notice of an Indemnity Matter hereunder, at the
reasonable request of the Indemnifying Party the Indemnified Party shall grant
the Indemnifying Party and its representatives full and complete access to the
books, records and properties of the Indemnified Party to the extent reasonably
related to the matters to which the notice relates. The Indemnifying Party will
not disclose to any third person (except its representatives) any information
obtained pursuant to the preceding sentence which is designated as confidential
by the Indemnified Party and which is not otherwise generally available to the
public or not already within the knowledge of the Indemnifying Party, except as
may be required by applicable law. The Indemnifying Party shall request its
representatives not to disclose any such information (unless already within its
knowledge or as may be required by applicable law). All such access shall be
subject to the normal safety regulations of the Indemnified Party, and shall be
granted under conditions which will not unreasonably interfere with the business
and operations of the Indemnified Party.
ARTICLE XII
AMENDMENT AND TERMINATION
12.1 Amendment. This Agreement may be amended only by a written
instrument executed by LASV and DCT.
12.2 Waiver. At any time on or before the Closing Date, each of the
Parties may (i) extend the time for the performance of any of the obligations or
other act of any of the other Parties, (ii) waive any inaccuracies in the
representations and warranties made in this Agreement or in a Disclosure
Schedule of a Party, (iii) waive compliance with any of the agreements or
conditions of this Agreement which may be legally waived, and (iv) grant
consents under this Agreement. Any such extension, waiver or grant shall be
valid only if evidenced by a written
19
instrument executed by the Party giving it. Any such extension, waiver or grant
on behalf of (i) the LASV Parties need only be executed by LASV and (ii) DCT
executed by DCT.
12.3 Termination. This Agreement may be terminated at any time before
the Closing by:
(i)the mutual consent of the Boards of Directors of LASV and
DCT;
(ii) by the Boards of Directors of LASV or DCT if the Merger
has not been consummated on or before February 21, 2001 (or any later
date which may be agreed to by the mutual written consent of the Boards
of Directors of LASV and DCT); provided, however, that such right to
terminate this Agreement shall not be available to any Party that has
breached in any material respect its obligations under this Agreement
in any manner that has proximately contributed to the failure of the
Merger to occur on or before such date.
12.4 Consequences of Termination. If this Agreement is terminated as
provided in Section 14.3, it shall become void and there shall be no liability
or obligation on the part of any Party or their respective officers or directors
except that the provisions of Sections 6.6, 7.5, 11.2, shall survive such a
termination. Nothing in this Section 14.4 shall, however, relieve any Party from
any liability for any breach of this Agreement.
ARTICLE XIII
GENERAL PROVISIONS
13.1 Non-Business Days. If the date on which any action (including the
delivery of notices) to be taken under this Agreement falls on a day which is
not a Business Day, the action will be deemed timely taken if on the next
following Business Day.
13.2 Shareholder Consent. By execution and delivery of this Agreement,
LASV, as the sole shareholder of Merger Subsidiary, hereby approves this
Agreement, the Merger and the Plan of Merger by written consent in accordance
with the DBCA.
13.3 Notices. All notices or other communications which are required or
may be given under this Agreement shall be in writing and shall be deemed to
have been duly given when delivered in person or transmitted by telecopier (with
receipt confirmed) to a Party at the address or telecopy number, as applicable,
set forth below (as any such address or telecopier number may be changed from
time to time by notice similarly given):
20
(1) if to either LASV Party, to:
LASV Enterprises Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇, President
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.:
(2) if to DCT, to:
DCT Corporation Ltd.
▇/▇ ▇▇▇▇▇▇▇▇▇ & ▇▇.
▇▇▇▇▇ ▇, K.S. Darling Building
Dowdeswell Street & School Lane
P.O. Box N-8978
Nassau, N.P., Bahamas
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Attorney at Law
▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
13.4 Entire Agreement. This Agreement, its Exhibits, the Disclosure
Schedules, and all documents delivered under this Agreement, constitute the
entire agreement, and supersede all of the prior agreements and undertakings,
both written and oral, among the Parties, or any of them, with respect to the
subject matter of this Agreement.
13.5 Assignment; Binding Effect. This Agreement may not be assigned by
any of its Parties. Subject to the preceding sentence, this Agreement shall be
binding upon the Parties and their respective successors and assigns.
21
13.6 Counterparts. This Agreement may be executed in multiple
counterparts which together shall constitute a single agreement. Delivery by
telephonic facsimile transmission of a signed counterpart of this Agreement
shall be effective as delivery of a manually signed counterpart and such
signature shall be deemed an original hereto.
13.7 Governing Law; Jurisdiction; Venue. This Agreement and the rights
and obligations of the parties created hereby shall be governed by the internal
Laws of the State of Delaware without regard to its conflict of law rules. Any
judicial proceeding brought against any Party in connection with any dispute
between or among them arising under this Agreement or any transactions
contemplated hereby shall be brought in the state or federal courts of Delaware
and, by execution and delivery of this Agreement, each Party (i) accepts,
generally and unconditionally, the exclusive jurisdiction of such courts and any
related appellate courts and (ii) irrevocably waives any objection such Party
may now have or hereafter have as to venue of any such proceeding arising out of
or relating to any dispute arising under this Agreement or the transactions
contemplated hereby brought in such courts or any defense of inconvenient forum
for the maintenance of such dispute. Each Party agrees that a judgment in any
such dispute may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by Law.
13.8 Severability of Provisions. If a provision of this Agreement or
its application to any Person or circumstance, is held invalid or unenforceable
in any jurisdiction, to the extent permitted by law, such provision or the
application of such provision to Persons or circumstances other than those as to
which it is held invalid or unenforceable and in other jurisdictions, and the
remaining provisions of this Agreement, shall not be affected.
13.9 Specific Performance. Each Party agrees that one or more other
Parties would be irreparably damaged if any provision of this Agreement were not
performed in accordance with its specific terms or was otherwise breached.
Therefore, the Parties agree that each Party shall be entitled to an injunction
or injunctions to prevent breaches of this Agreement or any of its provisions
and to specifically enforce this Agreement and its terms and provisions in any
action instituted in any court of the United States or any state thereof having
subject matter jurisdiction, in addition to any other remedy to which a Party
may be entitled, at law or in equity.
13.10 Joint Drafting. This Agreement and its Exhibits have been jointly
drafted by the Parties and their counsel. Neither this Agreement nor any of its
Exhibits shall be construed against any Party based on its authorship.
13.11 Captions. The article and section headings in this Agreement are
for convenience only, and shall not affect the meaning or interpretation of this
Agreement.
13.12 No Third-Party Beneficiaries. There are no third-party
beneficiaries of this Agreement, except that the respective Affiliates of the
Parties are entitled to the benefits of the respective indemnification
obligations of the Parties under Article XI.
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IN WITNESS WHEREOF, the Parties have duly executed this Agreement, all
as of the date first written above.
LASV:
LASV ENTERPRISES INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------
▇▇▇▇▇▇▇ ▇▇▇▇, President
DCT COMBINATION, INC.:
By: /s/ authorized signatory
Name:
Title:
DCT:
D.C.T. CORPORATION LTD.
By: /s/ authorized signatory
Name:
Title:
23
