Form of Exchange and Release Agreement, dated as of March 18, 2009, by and between iDNA, Inc., Steven Campus, the Campus Family 2000 Trust and the Trust Established Under the Will of Nancy Campus.
EXHIBIT
10.1
Form of
Exchange and Release Agreement, dated as of March 18, 2009, by and between iDNA,
Inc., ▇▇▇▇▇▇ Campus, the Campus Family 2000 Trust and the Trust Established
Under the Will of ▇▇▇▇▇ Campus.
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This
EXCHANGE AND RELEASE
AGREEMENT is entered into as of March___, 2009, among and between iDNA,
Inc. (“iDNA”), a
Delaware corporation previously named National Auto Credit, Inc.; ▇▇▇▇▇▇ Campus
(“Campus”);
the Campus Family 2000 Trust (the “Family
Trust”); and the Trust Established Under the Will of ▇▇▇▇▇ Campus (the
“Shelter
Trust” and, collectively with the Family Trust, the “Trusts”
and each as a “Trust”;
the Trusts and Campus are herein referred to collectively as the “Stockholders”
and each as a “Stockholder”).
Reference
is made to a certain Stock Purchase Agreement (the “Stock Purchase
Agreement”), dated as of July 31, 2003, by and among iDNA, Campus, the
Family Trust and the Shelter Trust. Pursuant to and as
provided in the Stock Purchase Agreement, iDNA (a) purchased from the
Stockholders all of the issued and outstanding shares of capital stock of each
of Campus Group Companies, Inc. (“CGCI”),
Multi-Video Services, Inc. (“Multi-Video”),
Interactive Conferencing Network, Inc. (“Interactive”)
and Audience Response Systems, Inc. (“ARSI” and,
collectively with CGCI, Multi-Video, Interactive and ARSI, the “Campus
Corporations”) and (b) in consideration for the acquisition of such
shares of capital stock, made a cash payment to the Stockholders and issued to
the Stockholders certain Promissory Notes (as defined in the Stock Purchase
Agreement) for the balance of the purchase price therefor.
Reference
is also made to a certain Reduction of Purchase Price Agreement effective as of
July 3, 2008, whereby iDNA and the Stockholders agreed to
restructure the Promissory Notes and other financial matters contemplated by the
Stock Purchase Agreement through a combination of (a) an adjustment of the
Purchase Price (as defined in the Stock Purchase Agreement) and a corresponding
reduction in the outstanding amount of the Promissory Notes and (b) the issuance
to the Stockholders two million five hundred thousand (2,500,000) shares of iDNA
common stock, par value $0.05 per share, that were issued to the
Stockholders in connection with the Reduction of Purchase Price Agreement
(the
“Issued Shares”), in full satisfaction of amounts outstanding under the
Promissory Notes as so reduced, subject, however, to the obligation of iDNA
(under certain circumstances) to redeem such Issued Shares from the Stockholders
and the right of the Stockholders (under certain circumstances) to put such
Issued Shares back to iDNA.
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Capitalized terms that are defined in
the Stock Purchase Agreement and the Reduction of Purchase Price Agreement and
are used herein shall (unless otherwise defined herein) when used herein have
the respective meanings ascribed to such terms in the Stock Purchase Agreement
and Reduction of Purchase Price Agreement.
iDNA
and the Stockholders (collectively, the “Parties”
and each a “Party”)
have determined and agreed to terminate the Reduction of Purchase Price
Agreement and the transactions and obligations arising thereunder on the terms
and conditions set forth herein.
1. Return of
the Capital Stock of Campus Corporations. Upon the full
execution and delivery of this Agreement, iDNA shall deliver to the Stockholders
all of the issued and outstanding shares of capital stock of each of the Campus
Corporations (the “Campus
Stock”), together with appropriate stock powers signed by iDNA. The
Campus Stock shall be allocated among and between the Stockholders as they shall
determine and specify in their sole discretion. iDNA represents and
warrants that (a) it has not pledged or hypothecated any of the Campus Stock,
(b) the Campus Stock delivered to the Stockholders constitutes 100 percent of
the equity securities of each of the Campus Corporations, (c) iDNA has not
issued any contracts or other rights to any person or entity to acquire any
securities of the Campus Corporations, and (d) upon delivery of the Campus Stock
to the Stockholders, the Stockholders will have acquired good and marketable
title in and to the Campus Stock.
2. Amended
Promissory Notes. The Stockholders acknowledge that the Promissory Notes
and the Amended Promissory Notes have been satisfied and that, upon the full
execution and delivery of this Agreement, they shall deliver to iDNA all of the
Promissory Notes and all of the Amended Promissory Notes (to the extent they
have not previously done so). The Stockholders represent and warrant
that (a) they have not pledged or hypothecated any of the Promissory Notes or
Amended Promissory Notes, (b) the Amended Promissory Notes
and Promissory Notes delivered to iDNA constitute 100 percent of the
Amended Promissory Notes, and Promissory Notes, (c) the Stockholders have not
issued any contracts or other rights to acquire any interest in the Amended
Promissory Notes or Promissory Notes to any person or
entity.
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3. Return of
the Issued Shares. Upon the full execution and delivery of this
Agreement, the Stockholders shall deliver to iDNA all of the Issued Shares,
(i.e., the
two million five hundred thousand (2,500,000) shares of iDNA Common Stock that
were issued to the Stockholders in connection with the Reduction of Purchase
Price Agreement), together with appropriate stock powers signed by the
Stockholders. The Stockholders represent and warrant that (a)
the Stockholders have not pledged or hypothecated any of the Issued Shares, (b)
the Stockholders have not issued any contracts or other rights to acquire any
interest in the Issued Shares to any person or entity, and (c) upon delivery of
the Issued Shares to iDNA, iDNA will have acquired good and
marketable title in and to the Issued Shares.
4. Because
the business of the Campus Corporations has been operated in material part by
representatives of both iDNA and the Stockholders, and because of the close
relationship of the Parties since the July 2003 closing of the Stock Purchase
Agreement, each of iDNA and the Stockholders acknowledges that they are fully
familiar with the affairs, business, activities, assets, liabilities, financial
condition and prospects of iDNA and the Campus Corporations. Accordingly, no
Party has made or relied on any representation, promise, or statement other than
as expressly set forth herein, and no Party has or shall have any duty of
disclosure to the other party with respect to iDNA or the Campus
Corporations.
5. Release
of Stockholders and ▇▇▇▇▇ Campus. Except with respect to the
provisions of this Exchange and Release Agreement, iDNA hereby releases,
waives and discharges the Stockholders and ▇▇▇▇▇▇ Campus from and
against all contracts, claims, promises, debts, covenants, guarantees, security
agreements, pledge agreements, liabilities and obligations (collectively,
“Liabilities”) arising at any time prior to the date hereof,
including but not limited to all Liabilities arising under the Promissory Notes,
the Amended Promissory Notes, the Stock Purchase Agreement, the Employment
Agreement, the Non-Competition and Non-Solicitation Agreement, and the Reduction
of Purchase Price Agreement.
6. Release
of iDNA. Except with respect to (a) the provisions of this Exchange and
Release Agreement, and (b) any right of ▇▇▇▇▇▇ Campus to indemnification or to
the benefits of any directors and officers liability insurance arising or
existing as a consequence of his former service as an employee, officer or
director of any iDNA subsidiary or affiliate, the Stockholders and ▇▇▇▇▇▇ Campus
hereby release, waive and discharge iDNA and IDNA’s
officers, directors and agents from and against all contracts,
claims, promises, debts, covenants, guarantees, security agreements, pledge
agreements, liabilities and obligations (collectively,
“Liabilities”) arising at any time prior to the date hereof,
including but not limited to all Liabilities arising under the Promissory Notes,
the Amended Promissory Notes, the Stock Purchase Agreement, the Pledge
Agreement, the Guarantee, the Employment Agreement, the Non-Competition and
Non-Solicitation Agreement, and the Reduction of Purchase Price
Agreement.
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7. Tax
Matters. iDNA shall be responsible for all federal, state and
local taxes and tax obligations (including interest and penalties) of
any kind or type incurred by the Campus Corporations or for which the Campus
Corporations are liable for all periods through and including the date of this
Agreement, and shall indemnify and hold harmless the Stockholders from such tax
obligations. The Campus Corporations shall be solely
responsible for all federal, state and local taxes and tax obligations
(including interest and penalties) of any kind or type incurred by
the Campus Corporations or for which the Campus Corporations are liable for all
periods subsequent to the date of this Agreement, and the Stockholders shall
indemnify and hold harmless the Stockholders from such tax
obligations. Without limitation to the foregoing:
(a) IDNA
has filed all income tax returns that it was required to file (subject to any
extensions and any tax returns as to which the deadline for filing has not yet
occurred) for each taxable period during which any of the Campus Corporations
was a member of the iDNA consolidated tax filing group. All such tax
returns were correct and complete in all respects in so far as they relate to
the Campus Corporations. All income taxes owed by any affiliated
group (whether or not shown on any tax return) have been paid or will be paid
for each taxable period during which the Campus Corporations was a member of the
group.
(b)
No director or officer (or employee responsible for tax matters) of iDNA expects
any authority to assess any additional income taxes against any affiliated group
for any taxable period during which the Campus Corporations was a member of the
group and for which period tax returns have been filed. There is no
dispute or adverse claim concerning any income tax liability of any affiliated
group for any taxable period during which the Campus Corporations was a member
of the group either (i) claimed or raised by any authority in writing or (ii) as
to which any the directors and officers (and employees responsible for tax
matters) of IDNA has knowledge based upon personal contact with any agent of
such authority. No affiliated group has waived any statute of
limitations in respect of any income taxes or agreed to any extension of time
with respect to an income tax assessment or deficiency for any taxable period
during which the Campus Corporations are a member of the group.
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(c) The
Campus Corporations have no liability for the taxes of any person other than the
Campus Corporations (i) under Reg. §1.1502-6 (or any similar provision of state,
local, or foreign law), (ii) as a transferee or successor, (iii) by contract, or
(D) otherwise.
(d) Any
tax-sharing agreement between IDNA and the Campus Corporations is terminated as
of the date of this Agreement and shall have no further effect for any taxable
year (whether the current year, as future year, or a past year).
(e) IDNA
agrees to indemnify the Stockholders from and against any adverse consequence
the Stockholders may suffer resulting from, arising out of, relating to, in the
nature of, or caused by any liability for taxes of any person other than Campus
Corporations than under Reg. §1.1502-6 (or any similar provision of state, local
or foreign law).
(f) IDNA
shall include the income of Campus Corporations (including any deferred items
triggered into income by Reg. §1.1502-13 and any excess loss account
taken into income under Reg. §1.1402-19) on IDNA's consolidated federal income
tax returns attributable to such income for all taxable periods ending on or
before the date of the Agreement. For all taxable periods ending on
or before the date of the Agreement, IDNA shall cause Campus Corporations to
join in IDNA's consolidated federal income tax return and, in jurisdictions
requiring separate reporting from IDNA, to file separate company state and local
income tax returns.
(g) All such
tax returns shall be prepared and filed in a manner consistent with prior
practice, except as required by a change in applicable law. The
Stockholders shall have the right to review and comment on any such tax returns
prepared by IDNA.
(h) IDNA
shall allow the Campus Corporations to participate in any audit of IDNA's
consolidated federal income tax returns to the extent that such returns relate
to the Campus Corporations. IDNA shall not settle any such audit in a
manner that would adversely affect the Campus Corporations after the date of
this Agreement without the prior written consent of the stockholders, which
consent shall not be unreasonably withheld.
8. Miscellaneous
Provisions.
(a) Notices. All
notices and other communications required or provided for hereunder shall be in
writing and shall be sufficiently given if given as provided in Section 10.2 of
the Stock Purchase Agreement and shall be deemed to have been duly given as such
time as provided under such Section 10.2.
(b) Severability. The
provisions of this Agreement shall be deemed severable, and the invalidity or
unenforceability of any term or provision hereof shall not affect the validity
or enforceability of this Agreement or any of the other terms or provisions
hereof. Furthermore, in lieu of any such invalid or unenforceable
term or provision, the Parties intend that there shall be added, as a part of
this Agreement, a provision as similar in terms to such invalid or unenforceable
provision as may be possible and be valid and enforceable.
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(c) Integration. This
Agreement constitutes the entire agreement, and supersedes all other prior
agreements, representations, warranties and undertakings, both written and oral,
among the Parties with respect to the subject matter hereof.
(d) No Third Party
Beneficiaries. This Agreement is not intended to confer upon
any other person or entity any rights or remedies hereunder.
(e) Assignment. This
Agreement shall not be assigned by operation of law or otherwise, and any effort
or attempt of any Party to assign this Agreement without the prior written
consent of the other Parties shall be null and void and of no force or
effect. iDNA’s consent to assignments, if any, between and among the
Stockholders shall not be unreasonably withheld.
(f) Further
Assurances. Upon the request of any Party, the other Parties
shall execute and deliver such instruments, documents and other writings as may
be reasonably necessary or desirable to confirm and carry out, and to effectuate
fully, the intent and purposes of this Agreement.
(g) Binding Effect;
Assignment. This Agreement shall be binding upon and be
enforceable against the Parties and their respective heirs, administrators,
legal representatives, successors and assigns and shall inure to the benefit of
and be enforceable by the Parties and their respective heirs, administrators,
legal representatives, successors and permitted assigns.
(h) Amendment. This
Agreement may not be amended except by an instrument in writing approved by the
Parties and signed on behalf of each of the Parties.
(i) Non-Waiver. Failure
to insist upon strict compliance with any of the terms, covenants or conditions
hereof shall not be deemed a waiver of such term, covenant or condition, nor any
waiver or relinquishment of any rights or power at any other time or
times.
(j) Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which taken together shall constitute one and the
same instrument.
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(i) GOVERNING LAW; WAIVER OF JURY TRIAL; CONSENT TO
JURISDICTION. EACH OF THE PARTIES EXPRESSLY WAIVES
ITS OR HIS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY SUIT, LITIGATION OR OTHER
JUDICIAL PROCEEDING REGARDING THIS AGREEMENT OR ANY DISPUTE HEREUNDER OR
RELATING HERETO. This Agreement shall be governed by,
interpreted under and construed in accordance with the internal laws of the
State of New York applicable to contracts executed and to be performed wholly in
that State without giving effect to the choice or conflict of laws principles or
provisions thereof, except to the extent any provision hereof must be governed
by, interpreted under or construed in accordance with the laws of the State of
Delaware. Each of the Parties agrees that any dispute under or with
respect to this Agreement shall be determined exclusively before the state or
federal courts situated in the City, County and State of New York, which courts
shall have exclusive jurisdiction over and with respect to any such dispute, and
each of the Parties hereby irrevocably submits to the jurisdiction of such
courts. Each Party hereby agrees not to raise any defense or
objection, under the theory of forum non conveniens or
otherwise, with respect to the jurisdiction of any such court.
[signatures
appear on the following page]
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IN WITNESS WHEREOF, the
Parties have executed this Agreement on the date first written
above.
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a
Delaware corporation
By: ___________________________________
Name:
Title:
____________________________________
▇▇▇▇▇▇
CAMPUS
CAMPUS
FAMILY 2000 TRUST
By: ___________________________________
Name:
▇▇▇▇▇▇ Campus
Title:
Trustee
TRUST
ESTABLISHED UNDER
THE
WILL OF ▇▇▇▇▇ CAMPUS
By: ___________________________________
Name:
▇▇▇▇▇▇ Campus
Title:
Trustee
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