AGREEMENT AND PLAN OF MERGER
AMONG
NOMADIC COLLABORATION INTERNATIONAL, INC.,
LGC ACQUISITION COMPANY,
AND
LIQUIDGOLF CORPORATION,
FEBRUARY 12, 2003
TABLE OF CONTENTS
PAGE
ARTICLE I. - DEFINITIONS...........................................................................................4
1.01 Affiliate.............................................................................4
1.02 Collateral Agreements.................................................................4
1.03 Confidential Information..............................................................4
1.04 Contracts.............................................................................4
1.05 Damages...............................................................................5
1.06 Environmental Laws....................................................................5
1.07 NMDC Shareholder......................................................................5
1.08 Financial Statements..................................................................5
1.09 GAAP..................................................................................5
1.10 Governmental Authorities..............................................................5
1.11 Inventory.............................................................................5
1.12 Knowledge.............................................................................5
1.13 Legal Requirements....................................................................5
1.14 LiquidGolf Capital Stock..............................................................5
1.15 LiquidGolf Stockholders...............................................................5
1.16 Material Adverse Change (or Effect)...................................................5
1.17 Permits...............................................................................6
1.18 Person................................................................................6
1.19 Properties............................................................................6
1.20 Permitted Encumbrances................................................................6
1.21 Real Property.........................................................................6
1.22 Regulations...........................................................................6
1.23 Subsidiary............................................................................6
1.24 Taxes.................................................................................6
1.25 Tax Return............................................................................6
1.26 Trade Secrets.........................................................................6
1.27 Used..................................................................................6
1.28 Working Capital.......................................................................6
ARTICLE II. - THE MERGER............................................................................................7
2.01 The Merger............................................................................7
2.02 Effective Time........................................................................7
2.03 Effects of the Merger.................................................................7
2.04 Certificate of Incorporation and Bylaws...............................................7
2.05 Directors.............................................................................7
2.06 Officers..............................................................................7
2.07 Effect on Capital Stock...............................................................7
2.08 Exchange of Certificates..............................................................8
2.09 Restriction on the Sale or other Transfer to the Converted Shares.....................9
ARTICLE III. - CLOSING.............................................................................................10
3.01 Closing..............................................................................10
3.02 Deliveries by LiquidGolf.............................................................10
3.03 Deliveries by NMDC...................................................................10
3.04 Termination in Absence of Closing....................................................10
ARTICLE IV. - LIQUIDGOLF'S REPRESENTATIONS AND WARRANTIES..........................................................12
4.01 Corporate Existence and Qualification................................................12
4.02 Authority, Approval and Enforceability...............................................12
4.03 Capitalization and Corporate Records.................................................12
4.04 Equity Interests.....................................................................12
4.05 No LiquidGolf Defaults or Consents...................................................13
4.06 No Governmental Proceedings..........................................................13
4.07 Employee Matters.....................................................................13
4.08 Financial Statements; Liabilities; Accounts Receivable; Inventories..................13
4.09 Absence of Certain Changes...........................................................14
4.10 Compliance with Laws.................................................................15
4.11 Litigation...........................................................................15
4.12 Real Property........................................................................15
4.13 Assets other than Real Property......................................................15
4.14 Commitments..........................................................................16
4.15 Intangible Rights....................................................................16
4.16 Permits..............................................................................16
4.17 Banks................................................................................17
4.18 Suppliers............................................................................17
4.19 Transactions With Affiliates.........................................................17
4.20 Taxes................................................................................17
4.21 Other Information....................................................................17
4.22 No Brokers...........................................................................17
ARTICLE V. - NMDC'S REPRESENTATIONS AND WARRANTIES.................................................................18
5.01 NMDC: Corporate Existence and Qualification..........................................18
5.02 LGC: Corporate Existence and Qualification...........................................18
5.03 NMDC: Authority, Approval and Enforceability.........................................18
5.04 LGC: Authority, Approval and Enforceability..........................................18
5.05 No Default or Consents...............................................................18
5.06 No Governmental Proceedings..........................................................19
5.07 Litigation...........................................................................19
5.08 Compliance with Laws.................................................................19
5.09 Tax Matters..........................................................................19
5.10 Permits..............................................................................19
5.11 Environmental Matters................................................................20
5.12 Other Information....................................................................20
ARTICLE VI. - OBLIGATIONS PRIOR TO CLOSING.........................................................................20
6.01 NMDC's Access to Information.........................................................20
6.02 LiquidGolf's Conduct of Business and Operations......................................20
6.03 General Restrictions.................................................................20
6.04 Notice Regarding Changes.............................................................22
6.05 Ensure Conditions Met................................................................22
ARTICLE VII. - CONDITIONS TO LIQUIDGOLF'S AND NOMADIC COLLABORATION'S OBLIGATIONS..................................22
7.01 Conditions to Obligations of LiquidGolf..............................................22
7.02 Conditions to Nomadic Collaboration's Obligations....................................23
ARTICLE VIII. - POST-CLOSING OBLIGATIONS...........................................................................24
8.01 Further Assurances...................................................................24
8.02 Publicity............................................................................24
8.03 Reporting Issuer.....................................................................24
8.04 Capital for the Surviving Corporation's Business.....................................25
8.05 Investment Banking Commitment........................................................24
2
ARTICLE IX. - MISCELLANEOUS........................................................................................25
9.01 Indemnification......................................................................25
9.02 Confidentiality......................................................................25
9.03 Brokers..............................................................................26
9.04 Costs and Expenses...................................................................26
9.05 Notices..............................................................................26
9.06 Governing Law and Waiver of Jury Trial...............................................27
9.07 Representations and Warranties.......................................................27
9.08 Agreement; No Third-Party Beneficiaries..............................................27
9.09 Binding Effect; Assignment...........................................................27
9.10 Severability.........................................................................27
9.11 Counterparts.........................................................................27
9.12 Attorneys' Fees......................................................................27
9.13 Exhibits and Schedules...............................................................28
9.14 Construction.........................................................................28
9.15 Rules of Interpretation..............................................................28
9.16 Amendment; Waiver....................................................................28
LIST OF SCHEDULES
SCHEDULE 2.08 LiquidGolf - Shares Issuable to LiquidGolf Stockholders
SCHEDULE 4.01 LiquidGolf - Jurisdictions and Good Standings
SCHEDULE 4.03 LiquidGolf - Capital Structure Prior to Closing the Merger
SCHEDULE 4.05 LiquidGolf - Consents and Defaults
SCHEDULE 4.07 LiquidGolf - Number of Employees and Employment Classification
SCHEDULE 4.08(A) LiquidGolf - Financial Statement
SCHEDULE 4.08(B) LiquidGolf - Liabilities
SCHEDULE 4.08(C) LiquidGolf - Accounts Receivable
SCHEDULE 4.08(D) LiquidGolf - Inventory
SCHEDULE 4.09 LiquidGolf - Certain Changes Since Last Balance Sheet
SCHEDULE 4.10 LiquidGolf - Compliance with Laws
SCHEDULE 4.11 LiquidGolf - Litigation
SCHEDULE 4.12 LiquidGolf - Real Property
SCHEDULE 4.14 LiquidGolf - Contracts and Commitments
SCHEDULE 4.15 LiquidGolf - Intangible Rights
SCHEDULE 4.16 LiquidGolf - Permits
SCHEDULE 4.17 LiquidGolf - Financial Institutions and Authorized Personnel
SCHEDULE 4.18 LiquidGolf - Principal Suppliers
SCHEDULE 4.19 LiquidGolf - Transactions with Affiliates
SCHEDULE 4.20 LiquidGolf - Tax Matters
SCHEDULE 7.02(C) NMDC - Certain Changes Since Last Balance Sheet
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AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (the "AGREEMENT") is made and entered
into as of the 12th day of February 2003, is by and among (i) NOMADIC
COLLABORATION INTERNATIONAL, INC., a Nevada corporation ("NMDC"), (ii) LGC
ACQUISITION CO., a Delaware corporation and wholly owned subsidiary of NMDC
("LGC"), and (iii) LIQUIDGOLF CORPORATION, a Delaware corporation
("LIQUIDGOLF").
RECITALS
A. The board of directors of LGC deems it advisable and in the
best interest of said corporation and its sole stockholder, NMDC, that LGC merge
(the "MERGER") with and into LiquidGolf as provided herein and has approved and
adopted the form, terms and provisions of this Agreement and the Merger, and the
board of directors of LGC has directed that this Agreement and the Merger be
submitted to NMDC's board of directors for approval and adoption.
B. The board of directors of LiquidGolf deems the Merger
advisable and in the best interest of said corporation and its stockholders and
the board of directors and stockholders of LiquidGolf have approved and adopted
the form, terms and provisions of this Agreement and the Merger.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants contained herein, the parties agree as follows:
ARTICLE I.
DEFINITIONS
Capitalized terms used in this Agreement are used as defined in this
Article I or elsewhere in this Agreement.
1.01 AFFILIATE. The term "AFFILIATE" shall mean, with respect to
any person, any other person controlling, controlled by or under common control
with such person. The term "CONTROL" as used in the preceding sentence means,
with respect to a corporation, the right to exercise, directly or indirectly,
more than 50% of the voting rights attributable to the shares of the controlled
corporation and, with respect to any person other than a corporation, the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such person.
1.02 COLLATERAL AGREEMENTS. The term "COLLATERAL AGREEMENTS" shall
mean any or all of the exhibits to this Agreement and any and all other
agreements, instruments or documents required or expressly provided for under
this Agreement to be executed and delivered in connection with the transactions
contemplated by this Agreement.
1.03 CONFIDENTIAL INFORMATION. The term "CONFIDENTIAL INFORMATION"
shall mean confidential data and confidential information relating to the
business of LiquidGolf (which does not rise to the status of a Trade Secret
under applicable law) which has value to LiquidGolf and is not generally known
to the competitors of LiquidGolf. Confidential Information shall not include any
data or information that (i) has been voluntarily disclosed to the general
public by LiquidGolf or its Affiliates, (ii) has been independently developed
and disclosed to the general public by others, or (iii) otherwise enters the
public domain through lawful means.
1.04 CONTRACTS. The term "CONTRACTS," when described as being those
of or applicable to any person, shall mean any and all contracts, agreements,
franchises, understandings, arrangements, leases, licenses, registrations,
authorizations, easements, servitudes, rights of way, mortgages, bonds, notes,
guaranties, liens, indebtedness, approvals or other instruments or undertakings
to which such person is a party or to which or by which such person or the
property of such person is subject or bound, excluding any Permits.
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1.05 DAMAGES. The term "DAMAGES" shall mean any and all damages,
liabilities, obligations, penalties, fines, judgments, claims, deficiencies,
losses, costs, expenses and assessments (including without limitation income and
other taxes, interest, penalties and attorneys' and accountants' fees and
disbursements).
1.06 ENVIRONMENTAL LAWS. The term "ENVIRONMENTAL LAWS" shall mean
any applicable federal, state, local or foreign law, statute, ordinance, rule,
regulation, code, order, judgment, decree or injunction relating to (x) the
protection of the environment (including, without limitation, air, water vapor,
surface water, groundwater, drinking water supply, surface or subsurface land)
or (y) the exposure to, or the use, storage, recycling, treatment, generation,
transportation, processing, handling, labeling, protection, release or disposal
of, Hazardous Substances.
1.07 NMDC SHAREHOLDER. The term "NMDC SHAREHOLDER" shall mean any
Person who holds shares of Nomadic Collaboration, Inc. common stock prior to the
Closing of the Merger.
1.08 FINANCIAL STATEMENTS. The term "FINANCIAL STATEMENTS" shall
mean any or all of the financial statements, including balance sheets and
related statements of income and statements of changes in financial position and
the accompanying notes thereto, of the LiquidGolf's business prepared in
accordance with generally accepted accounting principles consistently applied,
except as may be otherwise provided herein.
1.09 GAAP. "GAAP" means U.S. generally accepted accounting
principles.
1.10 GOVERNMENTAL AUTHORITIES. The term "GOVERNMENTAL AUTHORITIES"
shall mean any nation or country (including but not limited to the United
States) and any commonwealth, territory or possession thereof and any political
subdivision of any of the foregoing, including but not limited to courts,
departments, commissions, boards, bureaus, agencies, ministries or other
instrumentalities.
1.11 INVENTORY. The term "INVENTORY" shall mean all goods,
merchandise and other personal property owned and held for sale, and all raw
materials, works-in-process, materials and supplies of every nature which
contribute to the finished products of LiquidGolf in the ordinary course of its
business, specifically excluding, however, damaged, defective or otherwise
unsaleable items.
1.12 KNOWLEDGE. The term "KNOWLEDGE" shall mean, as to LiquidGolf,
the actual knowledge of ▇▇▇▇▇ ▇▇▇▇▇▇▇ or any of the other director, or officer
of LiquidGolf with respect to the matter in question, and such knowledge as
▇▇▇▇▇ ▇▇▇▇▇▇▇ or any of the other director or officer of LiquidGolf reasonably
should have obtained upon diligent investigation and inquiry into the matter in
question. The term "KNOWLEDGE" shall mean, as to NMDC, the actual knowledge of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ or any of the other director, or officer of NMDC with
respect to the matter in question, and such knowledge as ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇ or any of the other director or officer of NMDC reasonably should have
obtained upon diligent investigation and inquiry into the matter in question.
1.13 LEGAL REQUIREMENTS. The term "LEGAL REQUIREMENTS," when
described as being applicable to any person, shall mean any and all laws
(statutory, judicial or otherwise), ordinances, regulations, judgments, orders,
directives, injunctions, writs, decrees or awards of, and any Contracts with,
any Governmental Authority, in each case as and to the extent applicable to such
person or such person's business, operations or properties.
1.14 LIQUIDGOLF CAPITAL STOCK. The term "LIQUIDGOLF CAPITAL STOCK"
shall mean LiquidGolf's common stock, its Series A preferred stock, Series B
preferred stock and Series C preferred Stock.
1.15 LIQUIDGOLF STOCKHOLDERS. The term "LIQUIDGOLF STOCKHOLDERS"
shall mean any Person that holds shares of LiquidGolf's Capital Stock prior to
the Closing of the Merger.
1.16 MATERIAL ADVERSE CHANGE (OR EFFECT). The term "MATERIAL
ADVERSE CHANGE (OR EFFECT)" shall mean a change (or effect), in the condition
(financial or otherwise), properties, assets, liabilities, rights, obligations,
operations, business or prospects of a Person which change (or effect),
individually or in the aggregate, is materially adverse to such condition,
properties, assets, liabilities, rights, obligations, operations, Business or
prospects.
5
1.17 PERMITS. The term "PERMITS" shall mean any and all permits,
rights, approvals, licenses, authorizations, legal status, orders or Contracts
under any Legal Requirement or otherwise granted by any Governmental Authority.
1.18 PERSON. The term "PERSON" shall mean any individual,
partnership, joint venture, firm, corporation, association, limited liability
company, trust or other enterprise or any governmental or political subdivision
or any agency, department or instrumentality thereof.
1.19 PROPERTIES. The term "PROPERTIES" shall mean any and all
properties and assets (real, personal or mixed, tangible or intangible) owned or
Used by LiquidGolf or NMDC, as the case may be.
1.20 PERMITTED ENCUMBRANCES. As to Real Property, the term
"PERMITTED ENCUMBRANCES" shall mean (A) any liens disclosed in the Financial
Statements; (B) liens for Taxes, assessments and other governmental charges not
yet due and payable or due but being contested in good faith by appropriate
proceedings or not delinquent; (C) mechanics', workmen's, repairmen's,
warehousemen's, Carriers', or other like liens arising or incurred in the
ordinary course of business, original purchase price conditional sales contracts
and equipment leases with third parties entered into in the ordinary course of
business; (D) with respect to real property, (i) easements, quasi-easements,
licenses, covenants, rights-of-way and other similar restrictions, including,
without limitation, any other agreements, conditions or restrictions which would
be shown by a current title report or other similar report or listing which in
any event do not unreasonably interfere with the present use of such property,
(ii) any conditions that may be shown by a current survey, title report or
physical inspection which in any event do not unreasonably interfere with the
present use of such property and (iii) zoning, building and other similar
restrictions which in any event do not unreasonably interfere with the present
use of such property; (E) liens securing liabilities (with respect to such
liens, no default exists); and (F) liens which, individually or in the
aggregate, would not have a Material Adverse Effect.
1.21 REAL PROPERTY. The term "REAL PROPERTY" shall mean the real
property Used by either Nomadic Collaboration or LiquidGolf, as the case may be,
in the conduct of their respective businesses.
1.22 REGULATIONS. The term "REGULATIONS" shall mean any and all
regulations promulgated by the Department of the Treasury pursuant to the
Internal Revenue Code.
1.23 SUBSIDIARY. The term "SUBSIDIARY" shall mean Liquid Golf
Acquisition Corporation.
1.24 TAXES. The term "TAXES" shall mean all federal, state, local
or foreign taxes, including but not limited to income, gross receipts, windfall
profits, goods and services, value added, severance, property, production,
sales, use, license, excise, franchise, employment, withholding or similar
taxes, together with any interest, additions or penalties with respect thereto
and any interest in respect of such additions or penalties.
1.25 TAX RETURN. The term "TAX RETURN" shall mean any tax return,
filing or information statement required to be filed in connection with or with
respect to any Taxes.
1.26 TRADE SECRETS. The term "TRADE SECRETS" shall mean information
of LiquidGolf including, but not limited to, technical or non-technical data,
formulas, patterns, compilations, programs, financial data, financial plans,
product or service plans or lists of actual or potential customers or suppliers
which (i) derives economic value, actual or potential, from not being generally
known to, and not being readily ascertainable by proper means by, other persons
who can obtain economic value from its disclosure or use, and (ii) is the
subject of efforts that are reasonable under the circumstances to maintain its
secrecy.
1.27 USED. The term "USED" shall mean, with respect to LiquidGolf's
Properties, Contracts or Permits, those owned, leased, licensed or otherwise
held by LiquidGolf which were acquired for use or held for use by LiquidGolf in
connection with its business and operations, whether or not reflected on the its
books of account.
1.28 WORKING CAPITAL. The term "WORKING CAPITAL" shall mean the
difference between (i) LiquidGolf's current assets, including accounts
receivable, inventory, prepaid expenses and deposits, but
6
excluding Available Cash, and (ii) LiquidGolf's current liabilities, including
accounts payable and accrued expenses, but excluding Funded Indebtedness, in
each case calculated in accordance with GAAP.
ARTICLE II.
THE MERGER
2.01 THE MERGER. Upon the terms and subject to the conditions set
forth in this Agreement, and in accordance with the Delaware General Corporation
Law ("DELAWARE LAW"), LGC shall be merged with and into LiquidGolf at the
Effective Time (as hereinafter defined) (the "MERGER"). Following the Effective
Time, the separate corporate existence of LGC shall cease and LiquidGolf shall
continue as the surviving corporation (the "SURVIVING CORPORATION") and shall
succeed to and assume all the rights and obligations of LGC in accordance with
the Delaware Law. At the election of NMDC, any direct or indirect wholly owned
Subsidiary of NMDC may be substituted for LGC as a constituent corporation in
the Merger. In such event, the parties agree to execute an appropriate amendment
to this Agreement in order to reflect the foregoing.
2.02 EFFECTIVE TIME. Subject to the provisions of this Agreement,
as soon as practicable on or after the Closing Date (as hereinafter defined),
the parties shall file a certificate of merger or other appropriate documents
(in any such case, the "CERTIFICATE OF MERGER") executed in accordance with the
relevant provisions of Delaware Law and shall make all other filings or
recordings required under Delaware Law. The Merger shall become effective at
such time as the Certificate of Merger is duly filed with the Delaware Secretary
of State, or at such other time as LGC and LiquidGolf shall agree should be
specified in the Certificate of Merger (the time the Merger becomes effective
being referred to herein as the "EFFECTIVE TIME").
2.03 EFFECTS OF THE MERGER. Upon the effectiveness of the Merger,
(a) the Surviving Corporation shall own and possess all assets and property of
every kind and description, and every interest therein, wherever located, and
all rights, privileges, immunities, powers, franchises and authority of a public
as well as of a private nature, of LGC and LiquidGolf (the "CONSTITUENT
CORPORATION"), and all obligations owed to, belonging to or due to each of the
Constituent Corporations, all of which shall be vested in the Surviving
Corporation pursuant to Delaware Law without further act or deed, and (b) the
Surviving Corporation shall be liable for all claims, liabilities and
obligations of the Constituent Corporations, all of which shall become and
remain the obligations of the Surviving Corporation pursuant to Delaware Law
without further act or deed.
2.04 CERTIFICATE OF INCORPORATION AND BYLAWS. The Certificate of
Incorporation of LiquidGolf as in effect immediately prior to the Effective Time
shall be the certificate of incorporation of the Surviving Corporation until
thereafter changed or amended as provided therein or by Delaware Law. The
corporate name of the Surviving Corporation shall be "LIQUIDGOLF CORPORATION."
The bylaws of LiquidGolf as in effect immediately prior to the Effective Time
shall be the bylaws of the Surviving Corporation until thereafter changed or
amended as provided therein or by applicable law.
2.05 DIRECTORS. The directors of the Surviving Corporation shall be
▇▇▇▇▇ ▇▇▇▇▇▇▇ as Chairman and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ until the earlier of
their resignation or removal or until their respective successors are duly
elected and qualified, as the case may be. ▇▇. ▇▇▇▇▇▇▇ shall also be appointed
to serve as Chairman of the board of directors of NMDC upon the Closing of the
Merger.
2.06 OFFICERS. The officers of LiquidGolf immediately prior to the
Effective Time shall be the officers of the Surviving Corporation until the
earlier of their resignation or removal or until their respective successors are
duly elected and qualified, as the case may be. Notwithstanding the foregoing,
▇▇. ▇▇▇▇▇▇▇ shall remain the President and Chief Executive Officer of the
Surviving Corporation upon consummation of the Merger.
2.07 EFFECT ON CAPITAL STOCK. Notwithstanding any other provision
in this Agreement, NMDC shall issue to all LiquidGolf
stockholders, one share of NMDC common stock for every three shares of
LiquidGolf stock held. As of the Effective Time, by virtue of the Merger and
without any action on the part of the holder of any shares of the outstanding
capital of the LiquidGolf or LGC:
7
(a) Each issued and outstanding share of common stock of
LGC shall be converted into and become one fully paid and nonassessable share of
common stock of the Surviving Corporation.
(b) Each share of LiquidGolf's common stock ("LIQUIDGOLF
COMMON STOCK") that is held in the treasury of LiquidGolf or by any wholly owned
subsidiary of LiquidGolf shall automatically be canceled and returned and shall
cease to exist and no consideration shall be delivered in exchange therefor.
(c) Each share of LiquidGolf Common Stock that is owned
by NMDC, LGC or any other subsidiary of NMDC shall automatically be canceled and
retired and shall cease to exist, and no consideration shall be delivered in
exchange therefor.
(d) Subject to Section 2.07(h) hereof, each share of
LiquidGolf Common Stock issued and outstanding (other than shares of LiquidGolf
Common Stock to be canceled in accordance with Sections 2.07(b) and 2.07(c)
hereof) shall be canceled and extinguished and converted into the right to
receive one share of NMDC common stock for every three shares of LiquidGolf
stock ("NMDC COMMON"). As of the Effective Time, all such shares of LiquidGolf
Common Stock, except that held by NMDC, shall no longer be outstanding and shall
automatically be canceled and retired and shall cease to exist, and each holder
of a certificate representing any such shares of LiquidGolf Common Stock shall
cease to have any rights with respect thereto.
(e) Subject to Section 2.07(h) hereof, each share of
LiquidGolf Series A preferred stock issued and outstanding shall be canceled,
extinguished and converted into the right to receive one share of NMDC Common
for every three shares of LiquidGolf common stock into which the series A
preferred stock is convertible into as a result of the Merger. As of the
Effective Time, all such shares of LiquidGolf's Series A preferred stock shall
no longer be outstanding and shall automatically be canceled and retired and
shall cease to exist, and each holder of a certificate representing any such
stock shall cease to have any rights with respect thereto.
(f) Subject to Section 2.07(h) hereof, each share of
LiquidGolf Series B preferred stock issued and outstanding shall be canceled and
extinguished and converted into the right to receive one share of NMDC Common
for every three shares of LiquidGolf common stock into which the series B
preferred stock is convertible into as a result of the Merger. As of the
Effective Time, all such shares of LiquidGolf's Series B preferred stock shall
no longer be outstanding and shall automatically be canceled and retired and
shall cease to exist, and each holder of a certificate representing any such
stock shall cease to have any rights with respect thereto.
(g) Notwithstanding anything in this Agreement to the
contrary, any issued and outstanding shares held by a person (a "DISSENTING
STOCKHOLDER") who objects to the Merger and complies with all the provisions of
Section 262 of the Delaware Law concerning the right of holders of LiquidGolf
Capital Stock to dissent from the Merger and require appraisal of their Shares
("DISSENTING SHARES") shall not be converted as described in Section 2.07(d) but
shall become the right to receive such consideration as may be determined to be
due to such Dissenting Stockholder pursuant to Section 262 of the Delaware Law.
If, after the Effective Time, such Dissenting Stockholder withdraws his demand
for appraisal or fails to perfect or otherwise loses his right of appraisal, in
any case pursuant to the Delaware Law, his Shares shall be deemed to be
converted as of the Effective Time into the right to receive the NMDC Common.
LiquidGolf shall give NMDC (i) prompt notice of any demands for appraisal of
Dissenting Shares received by LiquidGolf, and (ii) the opportunity to
participate in all negotiations and proceedings with respect to any such
demands. LiquidGolf shall not voluntarily make any payment with respect to any
demands for appraisal and shall not, except with the prior written consent of
NMDC, settle or offer to settle any such demands.
(h) LiquidGolf shall cancel its employee stock option
plan on or before the Closing. Subsequent to the Closing, NMDC will adopt and
implement a new employee stock plan and grant such stock options to LiquidGolf
employees as the board of directors of NMDC deems appropriate.
2.08 EXCHANGE OF CERTIFICATES. NMDC designates ▇▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇ or any other Person reasonably acceptable to LiquidGolf to act as the
exchange agent for the Merger (the "EXCHANGE AGENT"). The NMDC
8
Common shall be delivered to the Exchange Agent immediately upon Closing.
LiquidGolf shall send notice to each LiquidGolf Stockholder advising them on the
procedure for exchanging their share certificates. SCHEDULE 2.08 sets forth the
number of shares of NMDC Common issuable to each LiquidGolf Stockholder upon
Closing of the Merger. SCHEDULE 2.08 gives effect to the four-for-one reverse
stock split implemented by LiquidGolf in August 2000. The Exchange Agent shall
deliver to the LiquidGolf Stockholders their pro rata share of the NMDC Common
(the "CONVERTED SHARES"), upon surrender of their LiquidGolf share certificates
to the Exchange Agent. No fractional shares shall be issued in connection with
the exchange of LiquidGolf Capital Stock for NMDC Common contemplated hereby. In
lieu of any fractional shares, NMDC shall pay the stockholder cash equal to such
fraction multiplied by $2.00.
2.09 RESTRICTION ON THE SALE OR OTHER TRANSFER TO THE CONVERTED
SHARES. None of the Converted Shares will be registered under the Securities Act
of 1933, as amended (the "SECURITIES ACT"), or the securities laws of any state.
The LiquidGolf Stockholders are acquiring the Converted Shares for investment
purposes only and not with a view towards distribution or resale, nor with the
intention of selling, transferring or otherwise disposing of all or any part of
such Converted Shares for any particular price, or at any particular time, or
upon the happening of any particular event or circumstances, except selling,
transferring, or disposing of the Converted Shares made in full compliance with
all applicable provisions of the Securities Act, the rules and regulations
promulgated by the Securities and Exchange Commission thereunder, and applicable
state securities laws. The Converted Shares must be held indefinitely unless
they are subsequently registered under the Securities Act, or an exemption from
such registration is available, which will require an opinion of counsel
acceptable to NMDC that registration is not required under the Securities Act or
such state securities laws. The Converted Shares will be subject to the lock
provisions set forth in this Section 2.09 and shares certificates representing
the Converted Shares will each bear a legend indicating that transfer of such
Converted Shares has not been so registered and the legend may bear the
following or similar words:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY APPLICABLE STATE
SECURITIES LAWS. THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT
PURPOSES ONLY AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE, AND MAY
NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE
OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES
UNDER SUCH ACT AND APPLICABLE LAWS OR SOME OTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF SUCH ACT AND APPLICABLE LAWS OR AN OPINION
OF COUNSEL SATISFACTORY TO THE NOMADIC COLLABORATION INC. AND ITS
COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
LOCK-UP RESTRICTIONS WHICH ARE SET FORTH IN MORE PARTICULARITY IN THAT
CERTAIN AGREEMENT AND PLAN OF MERGER DATED AS OF FEBRUARY 12, 2003 (THE
"
MERGER AGREEMENT") PURSUANT TO WHICH THE HOLDER IS PROHIBITED FROM
SELLING OR TRANSFERRING THE SHARES REPRESENTED HEREBY FOR A PERIOD OF
TWELVE MONTHS FOLLOWING THE EFFECTIVE DATE OF THE MERGER; THEREAFTER,
THE HOLDER MAY SELL 25% OF ITS TOTAL HOLDINGS DURING EACH CALENDAR
QUARTER UNTIL THE 24 MONTH FOLLOWING THE EFFECTIVE DATE OF THE MERGER
AT WHICH TIME THIS RESTRICTION SHALL LAPSE. A COPY OF THE
MERGER
AGREEMENT MAY BE OBTAINED FROM NOMADIC COLLABORATION, INC UPON REQUEST
The Converted Shares may not be sold, pledged, hypothecated, or
transferred in any manner or for any reason for a period of 12 months following
the Effective Date. Thereafter, the LiquidGolf Stockholders may sell up to 25%
of their total holdings, subject to applicable securities laws, of the Converted
Shares during each calendar quarter until the 24th month following the Effective
Date at which time this restriction shall lapse. The surviving corporation will
file a registration statement with the Securities and Exchange Commission as
soon as practicable after the Closing to register shares of stock issued in
conjunction with fund raising activities where registration rights were given to
subscribers in those offerings.
2.10 RECORD DATE FOR STOCKHOLDER ACTION. LiquidGolf's board of
directors shall cause December 17, 2002 to be the record date for any LiquidGolf
Stockholder action necessary to approve this Agreement, the Merger or any of the
transactions contemplated hereby and thereby.
9
ARTICLE III.
CLOSING
3.01 CLOSING. Immediately upon the execution of this Agreement,
LiquidGolf shall (a) solicit the consent of and approval by its Stockholders of
the Merger and this Agreement and (b) obtain evidence that the requisite number
of LiquidGolf Stockholders are "accredited investors" (as such term is defined
in the Securities Act of 1933, as amended, hereinafter referred to as the
"SECURITIES ACT") for purposes of qualifying the share exchange under this
Merger for an exemption from the registration requirements of the Securities Act
pursuant to Section 506 thereunder (the foregoing shall be collective referred
to as the "PRE-CLOSING EVENTS"). Subject to the conditions stated in Article VII
of this Agreement, the closing of the transactions contemplated hereby (the
"CLOSING") shall be held at 9:00 a.m., Orlando,
Florida time, two business days
after the completion of the Pre-Closing Events, or, if the conditions set forth
in Sections 7.01 and 7.02 have not been satisfied or waived on such date, on the
fifth (5th) business day after all such conditions shall have been satisfied or
waived, at the offices of LiquidGolf's counsel, ▇▇▇▇▇▇▇▇▇ Traurig, P.A., ▇▇▇ ▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (or at the request of NMDC, at
the offices of counsel to any lender providing financing in connection with the
transactions contemplated hereby). The date upon which the Closing occurs is
hereinafter referred to as the "CLOSING DATE." The Closing shall be deemed
completed as of 12:01 a.m. Orlando time on the morning of the Closing Date.
3.02 DELIVERIES BY LIQUIDGOLF . At or prior to the Closing,
LiquidGolf shall deliver to NMDC:
(a) the Certificate of Merger, duly executed by
LiquidGolf;
(b) LiquidGolf's stock book, stock ledger and minute
books;
(c) an officer's certificate stating that the conditions
set forth in Sections 7.02(a) and 7.02(c) have been satisfied;
(d) possession of all originals and copies of agreements,
instruments, documents, deeds, books, records, files and other data and
information within the possession of LiquidGolf or any Affiliate of LiquidGolf
(collectively, the "RECORDS"); provided, however, that LiquidGolf may retain (1)
copies of any tax returns and copies of Records relating thereto; (2) copies of
any Records that LiquidGolf may reasonably need for complying with requirements
of law; and (3) copies of any Records that in the reasonable opinion of the
Chief Executive Officer of LiquidGolf shall be required in connection with the
performance of LiquidGolf's obligations under Article IX hereof; and
(e) evidence satisfactory to NMDC that NMDC designees
(which shall include ▇▇▇▇▇ ▇▇▇▇▇▇▇) shall be the only authorized signatories
with respect to LiquidGolf's accounts set forth in SCHEDULE 4.17.
3.03 DELIVERIES BY NMDC. At or prior to the Closing, NMDC shall
deliver to LiquidGolf a certificate executed by an authorized officer of NMDC,
on behalf of NMDC, to the effect that the conditions set forth in Section 7.0(c)
and Section 7.01(h) have been satisfied.
3.04 TERMINATION IN ABSENCE OF CLOSING.
(a) Subject to the provisions of Section 3.04(b), if by
the close of business on December 30, 2002, the Closing has not occurred, then
either NMDC or LiquidGolf may thereafter terminate this Agreement after two
business days by giving written notice to such effect, to the other parties
hereto, without liability of or to any party to this Agreement or any
stockholder, director, officer, employee or representative of such party unless
the reason for the Closing having not occurred is (i) such party's willful
breach of the provisions of this Agreement, or (ii) if all of the conditions to
such party's obligations set forth in Article VII have been satisfied or waived
in writing by the date scheduled for the Closing pursuant to Section 2.01, the
failure of such party to perform its obligations under this Article III on such
date; provided, however, that the provisions of Sections 9.01 through 9.06 shall
survive any such termination; and provided further, however, that any
termination pursuant to this Section 3.04 shall not relieve any party hereto who
was responsible for Closing having not occurred as described in clauses (i) or
(ii)
10
above of any liability for (x) such party's willful breach of the provisions of
this Agreement, or (y) if all of the conditions to such party's obligations set
forth in Article VII have been satisfied or waived in writing by the date
scheduled for the Closing pursuant to Section 2.01, the failure of such party to
perform its obligations under this Article III on such date.
(b) LiquidGolf shall also have the right to terminate
this Agreement without liability to any party by so notifying NMDC at any time
within fifteen (15) days after the date of this Agreement if, in LiquidGolf's
sole discretion, any Schedule (or any instrument referred to therein) or
requested information that was not furnished to LiquidGolf at least ten (10)
business days prior to the date of this Agreement contains or refers to any
matter that, or may cause or lead to any result that, in LiquidGolf's sole
discretion and judgment, is adverse to LiquidGolf in any way; provided, however,
that the provisions of Sections 9.01 through 9.06 shall survive any such
termination. In addition, notwithstanding the approval of LiquidGolf
Stockholders or it's board of directors, this Agreement and the transactions
contemplated herein may be terminated and abandoned at any time on or prior to
the Closing Date by LiquidGolf if:
(i) any representation or warranty made herein
for the benefit of LiquidGolf, or any certificate, schedule or document
furnished to LiquidGolf pursuant to this Agreement is untrue in any material
respect; or
(ii) NMDC defaults in any material respect in the
performance of any material obligation under this Agreement.
(c) Notwithstanding the approval of NMDC shareholders or
it's board of directors, this Agreement and the transactions contemplated herein
may be terminated and abandoned at any time on or prior to the Closing Date by
NMDC if:
(i) any representation or warranty made herein
for the benefit of NMDC, or any certificate, schedule or document furnished to
NMDC pursuant to this Agreement is untrue in any material respect; or
(ii) LiquidGolf defaults in any material respect
in the performance of any material obligation under this Agreement; or
(iii) LiquidGolf fails to demonstrate, to the
satisfaction of NMDC, that the requisite number of LiquidGolf stockholders are
"accredited investors" (as such term is defined in the Securities Act) for
purposes of qualifying the share exchange under this Merger for an exemption
from the registration requirements of the Securities Act pursuant to Section 506
thereunder; or
(iv) More than 35 LiquidGolf Stockholders timely
and properly exercise their right to dissent to the Merger.
(d) Notwithstanding the approval of LiquidGolf's
Stockholders or its board of directors, this Agreement and the transactions
contemplated herein may be terminated and abandoned at any time on or prior to
the Closing Date by LiquidGolf if:
(i) any representation or warranty made herein
for the benefit of NMDC, or any certificate, schedule or document furnished to
LiquidGolf pursuant to this Agreement is untrue in any material respect; or
(ii) NMDC has defaulted in any material respect
in the performance of any material obligation under this Agreement.
11
ARTICLE IV.
LIQUIDGOLF'S REPRESENTATIONS AND WARRANTIES
LiquidGolf and the Subsidiary each hereby represents and warrants to
NMDC that to its Knowledge:
4.01 CORPORATE EXISTENCE AND QUALIFICATION. LiquidGolf and
Subsidiary (i) are each a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware; and (ii) each has the
corporate power to own, manage, lease and hold its Properties and to carry on
its business as and where such Properties are presently located and such
business is presently conducted. Neither the character of LiquidGolf's or
Subsidiary's Properties nor the nature of LiquidGolf's or any Subsidiary's
business requires LiquidGolf or the Subsidiary, as the case may be, to be duly
qualified to do business as a foreign corporation in any jurisdiction outside
those identified in SCHEDULE 4.01 attached hereto, and LiquidGolf and Subsidiary
are qualified as a foreign corporation and in good standing in each listed
jurisdiction where the character of its properties or the nature of its business
requires it to be so qualified.
4.02 AUTHORITY, APPROVAL AND ENFORCEABILITY. Subject to the
approval of LiquidGolf's stockholders, this Agreement has been duly executed and
delivered by LiquidGolf, and LiquidGolf has all requisite power and legal
capacity to execute and deliver this Agreement and all Collateral Agreements
executed and delivered or to be executed and delivered in connection with the
transactions provided for hereby, to consummate the transactions contemplated
hereby and by the Collateral Agreements, and to perform its obligations
hereunder and under the Collateral Agreements. The execution, delivery and
performance of this Agreement and the consummation by LiquidGolf of the Merger
and of the other transactions contemplated hereby have been duly authorized by
all necessary corporate action on the part of LiquidGolf (subject to the
approval of LiquidGolf's stockholders which requires the affirmative vote of the
holders of a majority of all shares outstanding of Liquid Golf Capital Stock
voting together as a single class) and no other corporate proceedings on the
part of LiquidGolf are necessary to authorize this Agreement or to consummate
the transactions contemplated hereby. This Agreement and each Collateral
Agreement to which LiquidGolf is a party constitutes, or upon execution and
delivery shall constitute, the legal, valid and binding obligation of such
party, enforceable in accordance with its terms, except as such enforcement may
be limited by general equitable principles or by applicable bankruptcy,
insolvency, moratorium, or similar laws and judicial decisions from time to time
in effect which affect creditors' rights generally.
4.03 CAPITALIZATION AND CORPORATE RECORDS.
(a) SCHEDULE 4.03 sets forth LiquidGolf's capital stock
structure prior to Closing. Except as otherwise set forth in SCHEDULE 4.03, all
of the outstanding shares of LiquidGolf Capital Stock are duly authorized,
validly issued, fully paid and non-assessable and were not issued in violation
of (i) any preemptive or other rights of any Person to acquire securities of
LiquidGolf, or (ii) any applicable federal or state securities laws, and the
rules and regulations promulgated thereunder. Except as set forth on SCHEDULE
4.03, there are no outstanding subscriptions, options, convertible securities,
rights (preemptive or otherwise), warrants, calls or agreements relating to any
shares of capital stock of LiquidGolf. Upon filing of the Certificate of Merger
with the Secretary of State of the State of Delaware, good and valid title to
the LiquidGolf Capital Stock shall pass to NMDC, free and clear of all liens of
any kind, other than those arising from acts of NMDC.
(b) The copies of LiquidGolf's certificate of
incorporation and bylaws provided to NMDC are true, accurate, and complete and
reflect all amendments made through the date of this Agreement. LiquidGolf's
stock and minute books made available to NMDC for review were correct and
complete as of the date of such review, no further entries have been made
through the date of this Agreement, and such minute books contain an accurate
record of all stockholder and corporate actions of the stockholders and
directors (and any committees thereof) of LiquidGolf taken by written consent or
at a meeting since January 1, 2001. All corporate actions taken by LiquidGolf
have been duly authorized or ratified. All accounts, books, ledgers and official
and other records of LiquidGolf fairly and accurately reflect all of
LiquidGolf's transactions, properties, assets and liabilities.
4.04 EQUITY INTERESTS. Except for the Subsidiary, LiquidGolf does
not have any subsidiaries and does not directly or indirectly own any capital
stock of or other equity interests in any corporation, partnership or other
12
entity, and LiquidGolf is not a member of or participant in any partnership,
joint venture or similar entity and is not obligated to become such a member or
participant.
4.05 NO LIQUIDGOLF DEFAULTS OR CONSENTS. Except as otherwise set
forth in SCHEDULE 4.05 attached hereto, neither the execution nor delivery of
this Agreement nor the carrying out of any of the transactions contemplated
hereby shall:
(a) violate or conflict with any of the terms, conditions
or provisions of the LiquidGolf's charter or bylaws;
(b) violate any Legal Requirements applicable to
LiquidGolf;
(c) violate, conflict with, result in a breach of,
constitute a default under (whether with or without notice or the lapse of time
or both), or accelerate or permit the acceleration of the performance required
by, or give any other party the right to terminate, any Contract or Permit
binding upon or applicable to LiquidGolf;
(d) result in the creation of any lien, charge or other
encumbrance on any LiquidGolf's Properties; or
(e) require LiquidGolf to obtain or make any waiver,
consent, action, approval or authorization of, or registration, declaration,
notice or filing with, any private non-governmental third party or any
Governmental Authority.
4.06 NO GOVERNMENTAL PROCEEDINGS. No suit, action or other
proceeding is pending or, to the best of LiquidGolf's Knowledge, threatened
before any Governmental Authority seeking to restrain LiquidGolf or the
Subsidiary, or prohibit LiquidGolf's entry into this Agreement or prohibit the
Closing, or seeking damages against LiquidGolf, the Subsidiary or LiquidGolf's
Properties as a result of the consummation of this Agreement.
4.07 EMPLOYEE MATTERS. SCHEDULE 4.07 sets forth by number and
employment classification of LiquidGolf employees employed as of the date of
this Agreement, and, except as set forth therein, none of said employees are
subject to union or collective bargaining agreements with LiquidGolf. In
addition, SCHEDULE 4.07 sets forth each employees salary and benefits to which
such employee is entitled.
4.08 FINANCIAL STATEMENTS; LIABILITIES; ACCOUNTS RECEIVABLE;
INVENTORIES.
(a) SCHEDULE 4.08(A) contains true and complete copies of
unaudited Financial Statements with respect to LiquidGolf and its business as of
and for the year ended December 31, 2001 and for the ten months ended October
31, 2002. All of such Financial Statements present fairly the financial
condition and results of operations of LiquidGolf for the dates or periods
indicated thereon. All of such Financial Statements have been prepared in
accordance with GAAP applied on a consistent basis throughout the periods
indicated. Within 60 days of the Closing, LiquidGolf shall provide NMDC with
audited Financial Statements as of and for the year ended December 31, 2001 (the
"POST-CLOSING AUDIT") and such other financial information requested by NMDC to
enable NMDC to file a Form 8-K with the Securities and Exchange Commission with
respect to the Merger.
(b) Except for (i) the liabilities reflected on
LiquidGolf's October 31, 2002 balance sheet included with the Financial
Statements attached as SCHEDULE 4.08(A), (ii) trade payables and accrued
expenses incurred since October 31, 2002 in the ordinary course of business,
none of which are material, (iii) executory contract obligations under (x)
Contracts listed on SCHEDULE 4.14, and/or (y) Contracts not required to be
listed on SCHEDULE 4.14, and (iv) the liabilities set forth in SCHEDULE 4.08(B)
attached hereto, LiquidGolf does not have any material liabilities or
obligations (whether accrued, absolute, contingent, known or unknown).
(c) Except as otherwise set forth in SCHEDULE 4.08(C),
the accounts receivable reflected on the October 31, 2002 balance sheet included
in the Financial Statements referenced in Section 4.08(a) and all of
LiquidGolf's accounts receivable arising since October 31, 2002 (the "BALANCE
SHEET DATE") arose from bona fide transactions in the ordinary course of
business, and the goods and services involved have been sold, delivered and
13
performed to the account obligors, and no further filings (with governmental
agencies, insurers or others) are required to be made, no further goods are
required to be provided and no further services are required to be rendered in
order to complete the sales and fully render the services and to entitle
LiquidGolf to collect the accounts receivable in full. Except as set forth in
SCHEDULE 4.08(c), no such account has been assigned or pledged to any other
person, firm or corporation, and, except only to the extent fully reserved
against, as set forth in the October 31, 2002 balance sheet included in such
Financial Statements, no defense or set-off to any such account has been
asserted by the account obligor or exists.
(d) Except as otherwise set forth in SCHEDULE 4.08(D),
LiquidGolf's Inventory as of the Closing Date shall consist of items of quality,
condition and quantity consistent with normal seasonally-adjusted Inventory
levels of LiquidGolf and be usable and saleable in the ordinary and usual course
of business for the purposes for which intended, except to the extent written
down or reserved against on the Closing Date Balance Sheet. Except as otherwise
set forth in SCHEDULE 4.08(D), LiquidGolf's Inventory is valued on LiquidGolf's
books of account in accordance with GAAP (on an average cost basis) at the lower
of cost or market.
4.09 ABSENCE OF CERTAIN CHANGES.
(a) Except as otherwise set forth in SCHEDULE 4.09
attached hereto, since the Balance Sheet Date, there has not been:
(i) any event, circumstance or change that had
or might have a material adverse effect on the business, operations, prospects,
Properties, financial condition or working capital of LiquidGolf;
(ii) any damage, destruction or loss (whether or
not covered by insurance) that had or might have a material adverse effect on
the business, operations, prospects, Properties or financial condition of
LiquidGolf; or
(iii) any material adverse change in LiquidGolf's
sales patterns, pricing policies, accounts receivable or accounts payable.
(b) Except as otherwise set forth in SCHEDULE 4.09
attached hereto, since the Balance Sheet Date, LiquidGolf has not done any of
the following:
(i) merged into or with or consolidated with,
any other corporation or acquired the business or assets of any Person;
(ii) created, incurred, assumed, guaranteed or
otherwise become liable or obligated with respect to any indebtedness, or made
any loan or advance to, or any investment in, any Person, except in each case in
the ordinary course of business;
(iii) entered into, amended or terminated any
material agreement;
(iv) sold, transferred, leased, mortgaged,
encumbered or otherwise disposed of, or agreed to sell, transfer, lease,
mortgage, encumber or otherwise dispose of, any Properties except (i) in the
ordinary course of business, or (ii) pursuant to any agreement specified in
SCHEDULE 4.14;
(v) incurred or approved, or entered into any
agreement or commitment to make, any expenditures in excess of $50,000 (other
than those arising in the ordinary course of business or those required pursuant
to any agreement specified in SCHEDULE 4.14);
(vi) maintained its books of account other than
in the usual, regular and ordinary manner in accordance with generally accepted
accounting principles and on a basis consistent with prior periods or made any
change in any of its accounting methods or practices that would be required to
be disclosed under generally accepted accounting principles;
14
(vii) made any payment to any Affiliate or
forgiven any indebtedness due or owing from any Affiliate to LiquidGolf;
(viii) (A) liquidated Inventory or accepted product
returns other than in the ordinary course, (B) accelerated receivables, (C)
delayed payables, or (D) changed in any material respect LiquidGolf's practices
in connection with the payment of payables and/or the collection of receivables;
(ix) engaged in any one or more activities or
transactions with an Affiliate or outside the ordinary course of business;
(x) issued any capital stock or other
securities, or granted, or entered into any agreement to grant, any options,
convertible rights, other rights, warrants, calls or agreements relating to its
capital stock; or
(xi) committed to do any of the foregoing.
4.10 COMPLIANCE WITH LAWS. Except as otherwise set forth in
SCHEDULE 4.10, LiquidGolf is and has been in compliance in all respects with any
and all material Legal Requirements applicable to LiquidGolf, other than
failures to so comply that would not have a material adverse effect on the
business, operations, prospects, Properties or financial condition of
LiquidGolf. Except as otherwise set forth in SCHEDULE 4.10, LiquidGolf (x) has
not received or entered into any citations, complaints, consent orders,
compliance schedules, or other similar enforcement orders or received any
written notice from any Governmental Authority or any other written notice that
would indicate that there is not currently compliance with all such material
Legal Requirements, except for failures to so comply that would not have an
adverse effect on the business, operations, prospects, Properties or financial
condition of LiquidGolf, and (y) is not in default under, and no condition
exists (whether covered by insurance or not) that with or without notice or
lapse of time or both would constitute a default under, or breach or violation
of, any material Legal Requirement or Permit applicable to LiquidGolf. Without
limiting the generality of the foregoing, LiquidGolf has not received notice of
and there is no basis for, any claim, action, suit, investigation or proceeding
that might result in a finding that LiquidGolf is not or has not been in
compliance with material Legal Requirements relating to (a) the development,
testing, manufacture, packaging, distribution and marketing of products, (b)
employment, safety and health, (c) environmental protection, building, zoning
and land use and/or (d) the Foreign Corrupt Practices Act and the rules and
regulations promulgated thereunder.
4.11 LITIGATION. Except as otherwise set forth in SCHEDULE 4.11,
there are no claims, actions, suits, investigations or proceedings against
LiquidGolf pending or, to the best of LiquidGolf's Knowledge, threatened in any
court or before or by any Governmental Authority, or before any arbitrator, that
might have a material adverse effect (whether covered by insurance or not) on
the business, operations, prospects, Properties or financial condition of
LiquidGolf and there is no basis for any such claim, action, suit, investigation
or proceeding. SCHEDULE 4.11 also includes a true and correct listing of all
material actions, suits, investigations, claims or proceedings that were
pending, settled or adjudicated since January 1, 1999.
4.12 REAL PROPERTY. Except for Permitted Encumbrances, SCHEDULE
4.12 sets forth a list of all leases, licenses or similar agreements relating to
LiquidGolf's use or occupancy of real estate owned by a third party ("LEASES"),
true and correct copies of which have previously been furnished to NMDC, in each
case setting forth (i) the lessor and lessee thereof and the commencement date,
term and renewal rights under each of the Leases, and (ii) the street address
and legal description of each property covered thereby (the "LEASED PREMISES").
The Leases and all guaranties with respect thereto, are in full force and effect
and have not been amended in writing or otherwise, and no party thereto is in
default or breach under any such Lease. No event has occurred which, with the
passage of time or the giving of notice or both, would cause a material breach
of or default under any of such Leases. Neither the LiquidGolf nor its agents or
employees have received written notice of any claimed abatements, offsets,
defenses or other bases for relief or adjustment.
4.13 ASSETS OTHER THAN REAL PROPERTY. LiquidGolf or the Subsidiary
(as the case may be) has good and marketable title to all tangible assets
reflected on the Financial Statement or acquired after the date thereof, except
those since sold or otherwise disposed of for fair value in the ordinary course
of business, in each case free and clear of all liens. All the tangible personal
property owned by LiquidGolf or the Subsidiary (as the case may be)
15
is in all material respects in good operating condition and repair, ordinary
wear and tear excepted, and all personal property leased by LiquidGolf or the
Subsidiary (as the case may be) is in all material respects in the condition
required of such property by the terms of the lease applicable thereto during
the term of such lease and upon expiration thereof.
4.14 COMMITMENTS.
(a) Except as otherwise set forth in SCHEDULE 4.14,
LiquidGolf is not a party to or bound by any of the following, whether written
or oral:
(i) contract or commitment for capital
expenditures by LiquidGolf in excess of $50,000 per calendar quarter in the
aggregate;
(ii) lease or license with respect to any
Properties, real or personal, whether as landlord, tenant, licensor or licensee;
(iii) agreement, contract, indenture or other
instrument relating to the borrowing of money or the guarantee of any obligation
or the deferred payment of the purchase price of any Properties;
(iv) contract with any Affiliate of LiquidGolf
relating to the provision of goods or services by or to LiquidGolf;
(v) agreement for the sale of any assets that in
the aggregate have a net book value on LiquidGolf's books of greater than
$50,000;
(vi) agreement that purports to limit
LiquidGolf's freedom to compete freely in any line of business or in any
geographic area; or
(vii) other Contract that is material to
LiquidGolf's business.
(b) All of the Contracts listed or required to be listed
in SCHEDULE 4.14 are valid, binding and in full force and effect, and LiquidGolf
has not been notified or advised by any party thereto of such party's intention
or desire to terminate or modify any such Contract in any respect, except as
disclosed in SCHEDULE 4.14. Neither LiquidGolf nor, to the best of LiquidGolf's
Knowledge, any other party is in breach of any of the terms or covenants of any
Contract listed or required to be listed in SCHEDULE 4.14. Following the
Closing, LiquidGolf shall continue to be entitled to all of the benefits
currently held by LiquidGolf under each Contract listed or required to be listed
in SCHEDULE 4.14.
4.15 INTANGIBLE RIGHTS. Set forth on SCHEDULE 4.15 is a list and
description of all material foreign and domestic patents, patent rights,
trademarks, service marks, trade names, brands and copyrights (whether or not
registered and, if applicable, including pending applications for registration)
owned, Used, licensed or controlled by LiquidGolf and all goodwill associated
therewith. Except as otherwise set forth in SCHEDULE 4.15, LiquidGolf owns or
has the right to use and shall as of the Closing Date own or have the right to
use any and all information, know-how, trade secrets, patents, copyrights,
trademarks, tradenames, software, formulae, methods, processes and other
intangible properties that are necessary or customarily Used by LiquidGolf for
the ownership, management or operation of its Properties ("INTANGIBLE RIGHTS")
including, but not limited to, the Intangible Rights listed on SCHEDULE 4.15.
4.16 PERMITS . Except as otherwise set forth in SCHEDULE 4.16,
LiquidGolf has all Permits necessary for LiquidGolf to own, operate, use and/or
maintain its Properties and to conduct its business and operations as presently
conducted and as expected to be conducted in the future. Except as otherwise set
forth in SCHEDULE 4.16, all such Permits are in effect, no proceeding is pending
or, to the best of LiquidGolf's Knowledge, threatened to modify, suspend or
revoke, withdraw, terminate, or otherwise limit any such Permits, and no
administrative or governmental actions have been taken or, to the best of
LiquidGolf's Knowledge, threatened in connection with the
16
expiration or renewal of such Permits which could adversely affect LiquidGolf's
ability to conduct its business and operations as presently conducted and as
expected to be conducted in the future.
4.17 BANKS. SCHEDULE 4.17 sets forth (i) the name of each bank,
trust company or other financial institution and stock or other broker with
which LiquidGolf has an account, credit line or safe deposit box or vault, (ii)
the names of all persons authorized to draw thereon or to have access to any
safe deposit box or vault, (iii) the purpose of each such account, safe deposit
box or vault, and (iv) the names of all persons authorized by proxies, powers of
attorney or other like instrument to act on LiquidGolf's behalf in matters
concerning any of its business or affairs. Except as otherwise set forth in
SCHEDULE 4.17, no such proxies, powers of attorney or other like instruments are
irrevocable.
4.18 SUPPLIERS . SCHEDULE 4.18 sets forth the ten principal
suppliers of LiquidGolf during fiscal year 2000. Except as otherwise set forth
in SCHEDULE 4.18, LiquidGolf maintains good relations with all suppliers and
customers listed or required to be listed in SCHEDULE 4.18 as well as with
governments, partners, financing sources and other parties with whom LiquidGolf
has significant relations, and no such party has canceled, terminated or made
any threat to LiquidGolf to cancel or otherwise terminate its relationship with
LiquidGolf or to materially decrease its services or supplies to LiquidGolf or
its direct or indirect purchase or usage of LiquidGolf's products or services.
4.19 TRANSACTIONS WITH AFFILIATES. Except as set forth on SCHEDULE
4.19 and except for normal advances to employees consistent with past practices,
payment of compensation for employment to employees consistent with past
practices, and participation in scheduled plans or benefit programs and
agreements by employees, LiquidGolf has not purchased, acquired or leased any
property or services from, or sold, transferred or leased any property or
services to, or loaned or advanced any money to, or borrowed any money from, or
entered into or been subject to any management, consulting or similar agreement
with, or engaged in any other significant transaction with ▇▇. ▇▇▇▇▇▇▇ or any
other of LiquidGolf officer, director or stockholder or any of their respective
Affiliates. Except as set forth on SCHEDULE 4.19 no Affiliate of LiquidGolf is
indebted to LiquidGolf for money borrowed or other loans or advances, and
LiquidGolf is not indebted to any such Affiliate.
4.20 TAXES. Except as set forth on SCHEDULE 4.20, all Tax Returns
required to be filed prior to the date hereof with respect to LiquidGolf for its
respective income, properties, franchises or operations have been timely filed,
each such Tax Return has been prepared in compliance with all applicable laws
and regulations, and all such Tax Returns are true and accurate in all material
respects. All Taxes due and payable by or with respect to LiquidGolf have been
paid or are accrued on its Balance Sheet. LiquidGolf has withheld and paid all
Taxes to the appropriate Governmental Authority required to have been withheld
and paid in connection with amounts paid or owing to any employee, independent
contractor, creditor, stockholder, or other third party. With respect to each
taxable period of LiquidGolf: (i) no deficiency or proposed adjustment which has
not been settled or otherwise resolved for any amount of Taxes has been asserted
or assessed by any taxing authority against LiquidGolf; (ii) LiquidGolf has not
consented to extend the time in which any Taxes may be assessed or collected by
any taxing authority; (iii) there is no action, suit, taxing authority
proceeding, or audit or claim for refund now in progress, pending or, to the
Knowledge of LiquidGolf, threatened against or with respect to LiquidGolf
regarding Taxes; and (iv) there are no Liens for Taxes (other than for current
Taxes not yet due and payable) upon LiquidGolf's assets.
4.21 OTHER INFORMATION. The information furnished by LiquidGolf to
NMDC pursuant to this Agreement (including, without limitation, information
contained in the Exhibits hereto, the Schedules identified herein, the
instruments referred to in such Schedules and the certificates and other
documents to be executed or delivered pursuant hereto by LiquidGolf at or prior
to the Closing) is not, nor at the Closing shall be, false or misleading in any
material respect, or contains, or at the Closing shall contain, any misstatement
of material fact, or omits, or at the Closing shall omit, to state any material
fact required to be stated in order to make the statements therein not
misleading.
4.22 NO BROKERS. Neither LiquidGolf nor the Subsidiary has incurred
any obligation for any finder's or broker's or agent's fees or commissions or
similar compensation in connection with the transactions contemplated hereby.
17
ARTICLE V.
NMDC'S REPRESENTATIONS AND WARRANTIES
NMDC and the LGC each hereby represents and warrants to LiquidGolf that
to their Knowledge:
5.01 NMDC: CORPORATE EXISTENCE AND QUALIFICATION. NMDC is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Nevada; has the corporate power to own, manage, lease and hold
its properties and to carry on its business as and where such properties are
presently located and such business is presently conducted; and is duly
qualified to do business and is in good standing as a foreign corporation in
each of the jurisdictions where the character of its properties or the nature of
its business requires it to be so qualified.
5.02 LGC: CORPORATE EXISTENCE AND QUALIFICATION. LGC is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware; has the corporate power to own, manage, lease and hold
its properties and to carry on its business as and where such properties are
presently located and such business is presently conducted; and is duly
qualified to do business and is in good standing as a foreign corporation in
each of the jurisdictions where the character of its properties or the nature of
its business requires it to be so qualified.
5.03 NMDC: AUTHORITY, APPROVAL AND ENFORCEABILITY. This Agreement
has been duly executed and delivered by NMDC and NMDC has all requisite
corporate power and legal capacity to execute and deliver this Agreement and all
Collateral Agreements executed and delivered or to be executed and delivered by
NMDC in connection with the transactions provided for hereby, to consummate the
transactions contemplated hereby and by the Collateral Agreements, and to
perform its obligations hereunder and under the Collateral Agreements. Upon the
approval of this Agreement by NMDC's Board of Directors, the execution and
delivery of this Agreement and the Collateral Agreements and the performance of
the transactions contemplated hereby and thereby shall be duly and validly
authorized and approved by all corporate action necessary on NMDC's behalf.
Subject to such Board approval, this Agreement and each Collateral Agreement to
which NMDC is a party constitutes, or upon execution and delivery shall
constitute, the legal, valid and binding obligation of NMDC, enforceable in
accordance with its terms, except as such enforcement may be limited by general
equitable principles or by applicable bankruptcy, insolvency, moratorium, or
similar laws and judicial decisions from time to time in effect which affect
creditors' rights generally.
5.04 LGC: AUTHORITY, APPROVAL AND ENFORCEABILITY. This Agreement
has been duly executed and delivered by LGC and LGC has all requisite corporate
power and legal capacity to execute and deliver this Agreement and all
Collateral Agreements executed and delivered or to be executed and delivered by
LGC in connection with the transactions provided for hereby, to consummate the
transactions contemplated hereby and by the Collateral Agreements, and to
perform its obligations hereunder and under the Collateral Agreements. Upon the
approval of this Agreement by LGC's Board of Directors, the execution and
delivery of this Agreement and the Collateral Agreements and the performance of
the transactions contemplated hereby and thereby shall be duly and validly
authorized and approved by all corporate action necessary on LGC's behalf.
Subject to such Board approval, this Agreement and each Collateral Agreement to
which LGC is a party constitutes, or upon execution and delivery shall
constitute, the legal, valid and binding obligation of LGC, enforceable in
accordance with its terms, except as such enforcement may be limited by general
equitable principles or by applicable bankruptcy, insolvency, moratorium, or
similar laws and judicial decisions from time to time in effect which affect
creditors' rights generally.
5.05 NO DEFAULT OR CONSENTS. Neither the execution and delivery of
this Agreement nor the carrying out of the transactions contemplated hereby
shall:
(i) violate or conflict with any of the terms,
conditions or provisions of NMDC's Articles of Incorporation or bylaws;
(ii) violate any Legal Requirements applicable to
NMDC;
18
(iii) violate, conflict with, result in a breach
of, constitute a default under (whether with or without notice or the lapse of
time or both), or accelerate or permit the acceleration of the performance
required by, or give any other party the right to terminate, any contract or
Permit applicable to NMDC;
(iv) result in the creation of any lien, charge
or other encumbrance on any of NMDC's property; or
(v) require NMDC to obtain or make any waiver,
consent, action, approval or authorization of, or registration, declaration,
notice or filing with, any private non-governmental third party or any
Governmental Authority.
5.06 NO GOVERNMENTAL PROCEEDINGS. No suit, action or other
proceeding is pending or, to NMDC's Knowledge, threatened before any
Governmental Authority seeking to restrain NMDC or prohibit its entry into this
Agreement or prohibit the Closing, or seeking Damages against NMDC or its
properties as a result of the consummation of this Agreement.
5.07 LITIGATION. There are no claims, actions, suits,
investigations or proceedings against NMDC pending or, to the best of NMDC's
Knowledge, threatened in any court or before or by any Governmental Authority,
or before any arbitrator, that might have a material adverse effect (whether
covered by insurance or not) on the business, operations, prospects, Properties
or financial condition of NMDC and there is no basis for any such claim, action,
suit, investigation or proceeding.
5.08 COMPLIANCE WITH LAWS. NMDC is and has been in compliance in
all respects with any and all material Legal Requirements applicable to NMDC,
other than failures to so comply that would not have a material adverse effect
on the business, operations, prospects, Properties or financial condition of
NMDC. NMDC (x) has not received or entered into any citations, complaints,
consent orders, compliance schedules, or other similar enforcement orders or
received any written notice from any Governmental Authority or any other written
notice that would indicate that there is not currently compliance with all such
material Legal Requirements, except for failures to so comply that would not
have an adverse effect on the business, operations, prospects, Properties or
financial condition of NMDC, and (y) is not in default under, and no condition
exists (whether covered by insurance or not) that with or without notice or
lapse of time or both would constitute a default under, or breach or violation
of, any material Legal Requirement or Permit applicable to NMDC. Without
limiting the generality of the foregoing, NMDC has not received notice of and
there is no basis for, any claim, action, suit, investigation or proceeding that
might result in a finding that NMDC is not or has not been in compliance with
material Legal Requirements relating to (a) the development, testing,
manufacture, packaging, distribution and marketing of products, (b) employment,
safety and health, (c) environmental protection, building, zoning and land use
and/or (d) the Foreign Corrupt Practices Act and the rules and regulations
promulgated thereunder.
5.09 TAX MATTERS. All Tax Returns required to be filed prior to the
date hereof with respect to NMDC for its respective income, properties,
franchises or operations have been timely filed, each such Tax Return has been
prepared in compliance with all applicable laws and regulations, and all such
Tax Returns are true and accurate in all material respects. All Taxes due and
payable by or with respect to NMDC have been paid or are accrued on its Balance
Sheet. NMDC have withheld and paid all Taxes to the appropriate Governmental
Authority required to have been withheld and paid in connection with amounts
paid or owing to any employee, independent contractor, creditor, stockholder, or
other third party. With respect to each taxable period of NMDC: (i) no
deficiency or proposed adjustment which has not been settled or otherwise
resolved for any amount of Taxes has been asserted or assessed by any taxing
authority against NMDC; (ii) NMDC has not consented to extend the time in which
any Taxes may be assessed or collected by any taxing authority; (iii) there is
no action, suit, taxing authority proceeding, or audit or claim for refund now
in progress, pending or, to the Knowledge of NMDC, threatened against or with
respect to NMDC regarding Taxes; and (iv) there are no liens for Taxes (other
than for current Taxes not yet due and payable) upon NMDC's assets.
5.10 PERMITS. NMDC has all Permits necessary for NMDC to own,
operate, use and/or maintain its Properties and to conduct its business and
operations as presently conducted and as expected to be conducted in the future.
All such Permits are in effect, no proceeding is pending or, to the best of
NMDC's Knowledge, threatened to modify, suspend or revoke, withdraw, terminate,
or otherwise limit any such Permits, and no administrative or
19
governmental actions have been taken or, to the best of NMDC's Knowledge,
threatened in connection with the expiration or renewal of such Permits which
could adversely affect NMDC's ability to conduct its business and operations as
presently conducted and as expected to be conducted in the future.
5.11 ENVIRONMENTAL MATTERS. Since its inception, NMDC has not
owned, leased or otherwise occupied any Real Property and therefore, neither
NMDC nor any of its Affiliates has any liability under, and each are presently
in compliance in all material respects with all Environmental Laws.
5.12 OTHER INFORMATION. The information furnished by NMDC to
LiquidGolf pursuant to this Agreement (including, without limitation,
information contained in the Exhibits hereto, the Schedules identified herein,
the instruments referred to in such Schedules and the certificates and other
documents to be executed or delivered pursuant hereto by NMDC at or prior to the
Closing) is not, nor at the Closing shall be, false or misleading in any
material respect, or contains, or at the Closing shall contain, any misstatement
of material fact, or omits, or at the Closing shall omit, to state any material
fact required to be stated in order to make the statements therein not
misleading. In addition, NMDC represents and warrants that, prior to the
Effective Time, it did not have any business operations.
ARTICLE VI.
OBLIGATIONS PRIOR TO CLOSING
From the date of this Agreement through the Closing:
6.01 NMDC'S ACCESS TO INFORMATION. LiquidGolf shall permit NMDC and
its authorized employees, agents, accountants, legal counsel and other
representatives to have access to the books, records, employees, counsel,
accountants, engineers and other representatives of LiquidGolf at all times
reasonably requested by NMDC for the purpose of conducting an investigation of
LiquidGolf's financial condition, corporate status, operations, prospects and
business. LiquidGolf shall make available to NMDC for examination and
reproduction all documents and data of every kind and character relating to
LiquidGolf in possession or control of, or subject to reasonable access by,
LiquidGolf, including, without limitation, all files, records, data and
information relating to the Properties (whether stored in paper, magnetic or
other storage media) and all agreements, instruments, contracts, assignments,
certificates, orders, and amendments thereto. Also, LiquidGolf shall allow NMDC
access to, and the right to inspect, the Properties, except to the extent that
such Properties are operated by a third-party operator, in which case LiquidGolf
shall use its best efforts to cause the operator of such Properties to allow
NMDC access to, and the right to inspect, such Properties.
6.02 LIQUIDGOLF'S CONDUCT OF BUSINESS AND OPERATIONS. LiquidGolf
shall keep NMDC advised as to all material operations and proposed material
operations relating to LiquidGolf. LiquidGolf shall (a) conduct its business in
the ordinary course, (b) keep available the services of present employees, (c)
maintain and operate its Properties in a good and workmanlike manner, (d) pay or
cause to be paid all costs and expenses (including but not limited to insurance
premiums) incurred in connection therewith in a timely manner, (e) use
reasonable efforts to keep all Contracts listed or required to be listed on
SCHEDULE 4.14 in full force and effect, (f) comply with all of the covenants
contained in all such material Contracts, (g) maintain in force until the
Closing Date insurance policies equivalent to those in effect on the date
hereof, and (h) comply in all material respects with all applicable Legal
Requirements. Except as otherwise contemplated in this Agreement, LiquidGolf
shall use its best efforts to preserve the present relationships of LiquidGolf
with persons having significant business relations therewith.
6.03 GENERAL RESTRICTIONS.
A. PROHIBITED TRANSACTIONS. Except as otherwise
expressly permitted in this Agreement, LiquidGolf shall not:
(i) declare, set aside or pay any dividends, or
make any distributions or other payments in respect of its equity securities, or
repurchase, redeem or otherwise acquire any such securities;
20
(ii) merge into or with or consolidate with, any
other corporation or acquire the business or assets of any person;
(iii) purchase any securities of any person;
(iv) amend its charter or bylaws;
(v) issue any capital stock or other securities,
or grant, or enter into any agreement to grant, any options, convertibility
rights, other rights, warrants, calls or agreements relating to its securities,
except in furtherance with this Agreement; or
(vi) create, incur, assume, guarantee or
otherwise become liable or obligated with respect to any indebtedness, or make
any loan or advance to, or any investment in, any person, except in each case in
the ordinary course of business;
B. TRANSACTIONS REQUIRING CONSENT. Except as otherwise
expressly permitted in this Agreement, without NMDC's prior written consent,
which consent shall not be unreasonably withheld, LiquidGolf shall not:
(i) make any change in any existing election, or
make any new election, with respect to any tax law in any jurisdiction which
election could have an effect on the tax treatment of LiquidGolf or LiquidGolf's
business operations;
(ii) enter into, amend or terminate any material
agreement;
(iii) sell, transfer, lease, mortgage, encumber or
otherwise dispose of, or agree to sell, transfer, lease, mortgage, encumber or
otherwise dispose of, any Properties except (i) in the ordinary course of
business, or (ii) pursuant to any agreement specified in SCHEDULE 4.14;
(iv) other than in the ordinary course of
business consistent with past practices, incur or approve, or enter into any
agreement or commitment to make, any expenditures in excess of $50,000 (other
than those required pursuant to any agreement specified in SCHEDULE 4.14);
(v) maintain its books of account other than in
the usual, regular and ordinary manner in accordance with generally accepted
accounting principles and on a basis consistent with prior periods or make any
change in any of its accounting methods or practices;
(vi) make any change, whether written or oral, to
any agreement or understanding with any of the suppliers listed or required to
be listed on SCHEDULE 4.18;
(vii) accelerate or delay collection of any notes
or accounts receivable in advance of or beyond their regular due dates or the
dates when they would have been collected in the ordinary course of business
consistent with past practices;
(viii) delay or accelerate payment of any accrued
expense, trade payable or other liability beyond or in advance of its due date
or the date when such liability would have been paid in the ordinary course of
business consistent with past practices;
(ix) allow its levels of inventory to vary in any
material respect from the levels customarily maintained;
(x) become a party to or bound by any of the
arrangements described in SECTION 4.14, whether written or oral;
21
(xi) enter into any transaction or make any
commitment which could result in any of the representations, warranties or
covenants of LiquidGolf contained in this Agreement not being true and correct
after the occurrence of such transaction or event; or
(xii) commit to do any of the foregoing.
6.04 NOTICE REGARDING CHANGES. LiquidGolf shall promptly inform
NMDC in writing of any change in facts and circumstances that could render any
of the representations and warranties made herein by LiquidGolf inaccurate or
misleading if such representations and warranties had been made upon the
occurrence of the fact or circumstance in question. NMDC shall promptly inform
LiquidGolf in writing of any change in facts and circumstances that could render
any of the representations and warranties made herein by it inaccurate or
misleading if such representations and warranties had been made upon the
occurrence of the fact or circumstance in question.
6.05 ENSURE CONDITIONS MET. Subject to the terms and conditions of
this Agreement, each party hereto shall use all reasonable commercial efforts to
take or cause to be taken all actions and do or cause to be done all things
required under applicable Legal Requirements in order to consummate the
transactions contemplated hereby, including, without limitation, (i) obtaining
all Permits, authorizations, consents and approvals of any Governmental
Authority or other Person which are required for or in connection with the
consummation of the transactions contemplated hereby and by the Collateral
Agreements, (ii) taking any and all reasonable actions necessary to satisfy all
of the conditions to each party's obligations hereunder as set forth in Article
VII, and (iii) executing and delivering all agreements and documents required by
the terms hereof to be executed and delivered by such party on or prior to the
Closing.
ARTICLE VII.
CONDITIONS TO LIQUIDGOLF'S AND NOMADIC COLLABORATION'S OBLIGATIONS
7.01 CONDITIONS TO OBLIGATIONS OF LIQUIDGOLF. LiquidGolf's
obligations to carry out the transactions contemplated by this Agreement are
subject, at LiquidGolf's option, to the satisfaction or waiver of the following
conditions: (a) LiquidGolf's board of directors and stockholders shall have
approved this Agreement and the Merger contemplated hereby.
(b) At Closing, NMDC shall deliver an officer's
certificate certifying and attaching (1) a true and correct copy of all
necessary corporate action on its behalf approving this Agreement; (2) a
certificate of good standing from the Nevada Secretary of State as to NMDC; and
(3) a certificate of good standing from the Delaware Secretary of State as to
LGC.
(c) All representations and warranties of NMDC contained
in this Agreement shall be true and correct in all material respects at and as
of the Closing, and NMDC shall have performed and satisfied in all material
respects all covenants and agreements required by this Agreement to be performed
and satisfied by NMDC at or prior to the Closing.
(d) As of the Closing Date, no suit, action or other
proceeding (excluding any such matter initiated by or on LiquidGolf's behalf)
shall be pending or threatened before any Governmental Authority seeking to
restrain LiquidGolf or prohibit the Closing or seeking Damages against
LiquidGolf as a result of the consummation of this Agreement.
(e) At Closing, NMDC shall cause the Funding Requirement
to be delivered pursuant to the provisions of Section 8.04.
(f) NMDC shall have entered into the employment contract
with ▇▇. ▇▇▇▇▇▇▇ in form and substance substantially similar to the agreement
attached hereto as EXHIBIT A.
22
(g) As of the Closing Date, no suit, action or other
proceeding (excluding any such matter initiated by or on LiquidGolf's behalf or
any of the stockholders) shall be pending or threatened before any Governmental
Authority seeking to restrain LiquidGolf or prohibit the Closing or seeking
Damages against LiquidGolf as a result of the consummation of this Agreement.
(h) At Closing, NMDC will have executed a reverse stock
split that will result in NMDC having no more than 500,000 shares issued and
outstanding and will have a bid price of at least USD $1.00 per share quoted by
the OTC Bulletin Board.
7.02 CONDITIONS TO NMDC'S OBLIGATIONS. NMDC's obligation to carry
out the transactions contemplated by this Agreement are subject, at NMDC's
option, to the satisfaction, or waiver by NMDC, of the following conditions:
(a) All representations and warranties of LiquidGolf
contained in this Agreement shall be true and correct in all material respects
at and as of the Closing, and LiquidGolf shall have performed and satisfied in
all material respects all agreements and covenants required by this Agreement to
be performed and satisfied by them at or prior to the Closing.
(b) As of the Closing Date, no suit, action or other
proceeding (excluding any such matter initiated by or on behalf of NMDC) shall
be pending or threatened before any court or governmental agency seeking to
restrain NMDC or prohibit the Closing or seeking Damages against NMDC or
LiquidGolf or its Properties as a result of the consummation of this Agreement.
(c) Except for matters disclosed in SCHEDULE 7.02(C)
attached hereto, since the Balance Sheet Date and up to and including the
Closing, there shall not have been any event, circumstance, change or effect
that, individually or in the aggregate, had or might have a material adverse
effect on LiquidGolf's business, operations, prospects, Properties or financial
condition.
(d) At Closing, LiquidGolf shall deliver an officer's
certificate certifying and attaching: (1) a true and correct copy of all
necessary corporate action on its behalf approving this Agreement; (2) a true
and correct copy of LiquidGolf's Certificate of Incorporation and all
designations and amendments thereto; (3) a true and correct copy of LiquidGolf's
By-laws; and (4) a certificate of good standing from the Delaware Secretary of
State.
(e) All agreements, commitments and understandings
between LiquidGolf and any Stockholder (or any other Affiliate of LiquidGolf or
any such Stockholder) shall have been terminated in all respects on terms
satisfactory to NMDC, and all obligations, claims or entitlements thereunder
shall be unconditionally waived and released and written evidence thereof
satisfactory in form and substance to NMDC shall have been delivered to NMDC.
(f) NMDC's board of directors shall have approved this
Agreement and the Merger contemplated hereby.
(g) No proceeding in which LiquidGolf shall be a debtor,
defendant or party seeking an order for its own relief or reorganization shall
have been brought or be pending by or against such person under any United
States or state bankruptcy or insolvency law.
(h) NMDC shall be satisfied that it shall be able to
obtain, not later than 60 days after the Closing Date, the Post-Closing Audit
and unaudited pro forma Financial Statements with respect to LiquidGolf, if any,
together with any required consent of LiquidGolf's independent public
accountants.
(i) LiquidGolf shall, to NMDC's satisfaction, have
obtained a release of the default provisions and other obligations of LiquidGolf
to SpiderGolf, Inc. and its principals pursuant to that certain Agreement and
Plan of Merger dated November 5, 1999, as thereafter amended.
23
(j) At Closing, LiquidGolf shall deliver a detailed
budget that is satisfactory to NMDC which sets out LiquidGolf's intended use of
the Funding Requirement described in Section 8.04.
(k) Except as provided in Section 2.07(e), (f), (g) and
(i) upon conversion of LiquidGolf Capital Stock into NMDC Common, LiquidGolf's
capital shall only consist of common stock and LiquidGolf shall have disposed of
any and all obligations to preferred stockholders, option holders and warrant
holders; provided, however, LiquidGolf's obligations under warrants issued to
investors pursuant to a Confidential Private Placement Memorandum dated July 31,
2000 (or the replacement warrants which LiquidGolf may issue to some of such
investors in connection with the debt conversion offering offered to the
investors in such private placement) and warrants granted to ▇▇▇▇ ▇▇▇▇▇
Consulting Incorporated, and warrants granted to investors pursuant to a
Confidential Private Placement dated and issued in April and May of 2002 shall
be assigned to NMDC, subject to the availability of applicable regulatory
exemptions for NMDC to issue such warrants and common shares underlying those
warrants and provided that the obligations under such warrants shall be limited
to a maximum aggregate of 3,000,000 shares of NMDC common stock on exercise of
such warrants. Any shares issued on exercise of such warrants shall be subject
to the same resale provisions as set forth in Section 2.08 above, or such other
terms and conditions to the sole reasonable satisfaction of NMDC.
(l) LiquidGolf shall have provided to NMDC an unaudited
balance sheet and the related unaudited statements of income, stockholders'
equity and cash flows for the period from the date of the Financial Statements
through the end of the most recent month ending at least 30 days prior to the
Closing Date (the "CLOSING FINANCIAL STATEMENTS"), accompanied by the
unqualified certification of the Chief Executive Officer of LiquidGolf and the
Chief Financial Officer of LiquidGolf to the effect that the Closing Financial
Statements have been prepared from and in accordance with the books and records
of LiquidGolf, have been prepared in conformity with GAAP (subject to normal,
recurring year-end adjustments and the lack of required footnotes) and fairly
present in all material respects the financial condition of LiquidGolf as of the
date thereof and the results of its operations for the period then ended, and
there shall have been no material adverse change in the financial condition of
LiquidGolf form the date of the Financial Statements to the date of the Closing
Financial Statement which would have a material adverse effect on the financial
condition of LiquidGolf.
ARTICLE VIII.
POST-CLOSING OBLIGATIONS
8.01 FURTHER ASSURANCES. Following the Closing, LiquidGolf and NMDC
shall execute and deliver such documents, and take such other action, as shall
be reasonably requested by any other party hereto to carry out the transactions
contemplated by this Agreement.
8.02 PUBLICITY. None of the parties hereto shall issue or make, or
cause to have issued or made, any public release or announcement concerning this
Agreement or the transactions contemplated hereby, without the advance approval
in writing of the form and substance thereof by each of the other parties,
except as required by law (in which case, so NMDC as possible, there shall be
consultation among the parties prior to such announcement), and the parties
shall endeavor jointly to agree on the text of any announcement or circular so
approved or required.
8.03 NAME CHANGE AND REINCORPORATION. After Closing, NMDC shall
take the necessary board of directors action and use its best efforts to obtain
the necessary shareholder approval to (i) change its corporate name from Nomadic
Collaboration, Inc. to "LIQUIDGOLF CORPORATION" and (b) change its state of
incorporation from Nevada to Delaware.
8.04 CAPITAL FOR THE SURVIVING CORPORATION'S BUSINESS. Prior to
Closing, NMDC will have entered into an investment banking agreement with Pan
America Capital Group, Inc. According to the terms of the agreement, no later
than 90 days from closing, Pan America Capital Group, Inc. will deliver no less
than USD
24
$150,000 in immediately accessible and usable funds to the surviving corporation
as minimum firm commitment proceeds from this rights offering to be used to
conduct its business (the "FUNDING REQUIREMENT").
8.05 INVESTMENT BANKING COMMITMENT. After Closing, NMDC shall take
the necessary board of directors action to retain PanAmerica Capital Group, Inc.
to assist the surviving corporation in all financial activities of the
corporation including, but not limited to capital raising, mergers and
acquisitions, and future financings. The term of the agreement will be two years
and the compensation will be 1,800,000 shares of NMDC common stock.
ARTICLE IX.
MISCELLANEOUS
9.01 INDEMNIFICATION. NMDC shall defend, indemnify and hold
harmless the Surviving Corporation and the LiquidGolf Stockholders from, against
and in respect of any and all claims, losses, costs, expenses, obligations,
liabilities, damages, recoveries and deficiencies, including interest,
penalties, fines and reasonable attorneys' fees, that the Surviving Corporation
and/or the LiquidGolf Stockholders may incur, sustain or suffer including
without limitation any audit costs incurred by an Internal Revenue Service audit
of the Company and/or any of the Target Companies which results in a tax
deficiency for the tax year(s) audited ("LOSSES") as a result of any breach of,
or failure by the NMDC to perform, any of the representations, warranties,
covenants or agreements of NMDC contained in this Agreement or in any
Schedule(s) furnished by or on behalf of NMDC under this Agreement.
9.02 CONFIDENTIALITY.
(a) Prior to the Closing, NMDC shall, and shall cause its
Affiliates and its and their employees, agents, accountants, legal counsel and
other representatives and advisers to, hold in strict confidence all, and not
divulge or disclose any, information of any kind concerning LiquidGolf and its
business; provided, however, that the foregoing obligation of confidence shall
not apply to (i) information that is or becomes generally available to the
public other than as a result of a disclosure by NMDC or its Affiliates or any
of its or their employees, agents, accountants, legal counsel or other
representatives or advisers, (ii) information that is or becomes available to
NMDC or its Affiliates or any of its or their employees, agents, accountants,
legal counsel or other representatives or advisers on a non-confidential basis
prior to its disclosure by NMDC or its Affiliates or any of its or their
employees, agents, accountants, legal counsel or other representatives or
advisers and (iii) information that is required to be disclosed by NMDC or its
Affiliates or any of its or their employees, agents, accountants, legal counsel
or other representatives or advisers as a result of any applicable law, rule or
regulation of any Governmental Authority; and provided further that NMDC
promptly shall notify LiquidGolf of any disclosure pursuant to clause (iii) of
this Section 9.01(a); and, provided, further, that the foregoing obligation of
confidence shall not apply to the furnishing of information by NMDC in bona fide
discussions or negotiations with prospective lenders.
(b) LiquidGolf shall cause its Affiliates, employees,
agents, accountants, legal counsel and other representatives and advisers to,
hold in strict confidence all, and not divulge or disclose any, information of
any kind concerning the transactions contemplated by this Agreement, LiquidGolf,
NMDC or their respective businesses; provided, however, that the foregoing
obligation of confidence shall not apply to (i) information that is or becomes
generally available to the public other than as a result of a disclosure by
LiquidGolf or any of its Affiliates, employees, agents, accountants, legal
counsel or other representatives or advisers, (ii) information that is or
becomes available to LiquidGolf or any of its Affiliates, employees, agents,
accountants, legal counsel or other representatives or advisers after the
Closing on a non-confidential basis prior to its disclosure by LiquidGolf or any
of its Affiliates, employees, agents, accountants, legal counsel or other
representatives or advisers and (iii) information that is required to be
disclosed by LiquidGolf or any of its Affiliates, employees, agents,
accountants, legal counsel or other representatives or advisers as a result of
any applicable law, rule or regulation of any Governmental Authority; and
provided further that LiquidGolf shall promptly notify NMDC of any disclosure
pursuant to clause (iii) of this Section 9.01(b).
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9.03 BROKERS. Regardless of whether the Closing shall occur, NMDC
shall indemnify and hold LiquidGolf harmless from and against any and all
liability for any brokers' or finders' fees arising in respect to brokers or
finders retained or engaged by NMDC with respect of the transactions
contemplated by this Agreement.
9.04 COSTS AND EXPENSES. Each of the parties to this Agreement
shall bear its own expenses incurred in connection with the negotiation,
preparation, execution and closing of this Agreement and the transactions
contemplated hereby (the "TRANSACTION EXPENSES").
9.05 NOTICES. Any notice, demand, request, offer, consent, approval
or communications (collectively, a "NOTICE") to be provided under this Agreement
shall be in writing and sent by one of the following methods: (i) postage
prepaid, United States certified or registered mail with a return receipt
requested, addressed to NMDC or LiquidGolf, as appropriate, at the addresses set
forth below; (ii) overnight delivery with a nationally recognized and reputable
air courier (with electronic tracking requested) addressed to NMDC or
LiquidGolf, as appropriate, at the addresses set forth below; (iii) personal
delivery to NMDC or LiquidGolf, as appropriate, at the addresses set forth
below; or (iv) by confirmed facsimile or telecopier transmission to NMDC or
LiquidGolf, as appropriate, at the facsimile numbers set forth below and in such
case of facsimile transmission, a copy must also be contemporaneously sent by
one of the methods described in the preceding clause (i), (ii) or (iii) of this
Section 9.05 (it being understood and agreed, however, that such Notice shall be
deemed received upon receipt of electronic transmission). Any such Notice shall
be deemed given upon receipt thereof, or, in case of any Notice sent pursuant to
clause (i), (ii) or (iii) above, the refusal thereof by the intended recipient.
Notwithstanding the foregoing, in the event any Notice is sent by overnight
delivery or personal delivery and it is received (or delivery is attempted)
during non-business hours (i.e., other than during 8:30 a.m. to 5:30 p.m.
[EST/EDT] Monday through Friday, excluding holidays), then such Notice shall not
be deemed to have been received until the next business day. Either party may
designate a different address for receiving Notices hereunder by notice to the
other party in accordance with the provisions of this Section 9.05. Further
notwithstanding the foregoing, if any Notice is sent by either party hereto to
the other and such Notice has not been sent in compliance with this Section 9.05
but has in fact actually been received by the other party, then such Notice
shall be deemed to have been duly given by the sending party and received by the
recipient party effective as of such date of actual receipt.
IF TO NOMADIC COLLABORATION: NOMADIC COLLABORATION INTERNATIONAL, INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
Telephone No: (▇▇▇) ▇▇▇-▇▇▇▇
IF TO LIQUIDGOLF: LIQUID GOLF CORPORATION
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone No: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
WITH A COPY TO: ▇▇▇▇▇▇▇▇▇ TRAURIG, PA
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Telephone No: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Notwithstanding anything in this Section to the contrary, any Notice delivered
in accordance herewith to the last designated address of any person or party to
which a Notice may be or is required to be delivered pursuant to this
26
Agreement shall not be deemed ineffective if actual delivery cannot be made due
to a change of address of the person or party to which the Notice is directed or
the failure or refusal of such person or party to accept delivery of the Notice.
9.06 GOVERNING LAW AND WAIVER OF JURY TRIAL. THIS AGREEMENT IS MADE
IN AND SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
FLORIDA, AND ANY LEGAL
ACTION RELATING TO OR ARISING OUT OF THIS AGREEMENT SHALL BE RESOLVED ONLY IN
FEDERAL OR STATE COURT LOCATED IN ORANGE COUNTY,
FLORIDA. THE PARTIES HERETO
EXPRESSLY WAIVE ANY CLAIM OR DEFENSE THEREIN THAT SUCH COURTS CONSTITUTE AN
INCONVENIENT FORUM. THE PARTIES HERETO EXPRESSLY WAIVE ALL RIGHTS TO TRIAL BY
JURY REGARDING ALL MATTERS OR DISPUTES ARISING OUT OF OR RELATED TO THIS
AGREEMENT. IN NO EVENT SHALL ANY PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL,
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS
AGREEMENT.
9.07 REPRESENTATIONS AND WARRANTIES. Each of the representations
and warranties of each of the parties to this Agreement shall be deemed to have
been made and shall be deemed to constitute the making of such representations
and warranties, again at and as of the Closing by and on behalf of the party on
behalf of whom such certificates are delivered.
9.08 AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This Agreement
(including the exhibits and schedules attached hereto) and such other documents
expressly intended by the terms hereof to be delivered subsequent to the
execution of this Agreement, contains the entire understanding of the parties in
respect of its subject matter and supersedes all prior agreements and
understandings (oral or written) between or among the parties with respect to
such subject matter. The parties agree that prior drafts of this Agreement shall
not be deemed to provide any evidence as to the meaning of any provision hereof
or the intent of the parties with respect thereto. The exhibits and schedules
constitute a part hereof as though set forth in full above. This Agreement is
not intended to confer upon any person, other than the parties hereto, any
rights or remedies hereunder.
9.09 BINDING EFFECT; ASSIGNMENT. The rights and obligations of this
Agreement shall bind and inure to the benefit of the parties and their
respective successors and assigns. Nothing expressed or implied herein shall be
construed to give any other person any legal or equitable rights hereunder. The
rights and obligations of this Agreement may not be assigned except by mutual
written consent of the parties hereto.
9.10 SEVERABILITY. If any clause or provision of this Agreement is
illegal, invalid or unenforceable under applicable present or future Laws
effective during the Term, the remainder of this Agreement shall not be
affected. In lieu of each clause or provision of this Agreement that is illegal,
invalid or unenforceable, there shall be added as a part of this Agreement a
clause or provision as nearly identical as may be possible and as may be legal,
valid and enforceable. In the event any clause or provision of this Agreement is
illegal, invalid or unenforceable as aforesaid and the effect of such
illegality, invalidity or unenforceability is that either party no longer has
the substantial benefit of its bargain under this Agreement and a clause or
provision as nearly identical as may be possible cannot be added, then, in such
event, such party may in its discretion cancel and terminate this Agreement
provided such party exercises such right within a reasonable time after such
occurrence. The amendment or modification to this Agreement pursuant to this
Section 9.10 shall require the consent of all parties hereto prior to the
effectiveness of any such amendment or modification.
9.11 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which together shall
constitute one and the same instrument. A telecopy signature of any party shall
be considered to have the same binding legal effect as an original signature.
9.12 ATTORNEYS' FEES. Notwithstanding the foregoing, in the event
either party employs an attorney or brings an action against the other arising
out of the terms of this Agreement, the prevailing party (whether such
prevailing party has been awarded a money judgment or not) shall receive from
the other party (and the other party shall be obligated to pay) the prevailing
party's reasonable legal fees and expenses (including the fees and expenses of
experts and para-professionals), whether such fees and expenses are incurred
before, during or after any trial, re-trial, re-hearing, mediation or
arbitration, administrative proceedings, appeals or bankruptcy or insolvency
proceedings, and irrespective of whether the prevailing party would have been
entitled to such fees and expenses under applicable law in the absence of this
Section. Without limiting the generality of the foregoing, the term
27
"EXPENSES" shall include expert witness fees, bonds, filing fees, administrative
fees, transcriptions, depositions or proceedings, costs of discovery and travel
costs. The term "PREVAILING PARTY" as used in this Section shall mean that party
whose positions substantially prevail in such action or proceeding, and any
action or proceeding brought by either party against the other as contemplated
in this Section may include a plea or request for judicial determination of the
"prevailing party" within the meaning of this Section. In the event neither
party substantially prevails in its positions in such action or proceeding, the
court may rule that neither party has so substantially prevailed, in which event
each party shall be responsible for its own fees and expenses in connection
therewith. In addition, the fees and expenses for the services of "in-house"
counsel (if any) shall be included within the prevailing party's fees and
expenses as fully as if such in-house legal services were provided by an
"outside" attorney or law firm as contemplated within this Section, irrespective
of whether "outside" legal services are obtained in connection with such matter.
The fees and expenses on the part of in-house counsel as aforesaid shall be
determined based upon the prevailing hourly rates, fees and expenses for an
attorney(s) of comparable experience in the central,
Florida area.
9.13 EXHIBITS AND SCHEDULES. The Exhibits and Schedules referred to
herein are attached hereto and incorporated herein by this reference. Disclosure
of a specific item in any one Schedule shall be deemed restricted only to the
Section to which such disclosure specifically relates except where (i) there is
an explicit cross-reference to another Schedule, and (ii) NMDC could reasonably
be expected to ascertain the scope of the modification to a representation
intended by such cross-reference.
9.14 CONSTRUCTION. The parties agree and acknowledge that they have
jointly participated in the negotiation and drafting of this Agreement and that
this Agreement has been fully reviewed and negotiated by the parties and their
respective counsel. In the event of an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the parties and no presumptions or burdens of proof shall arise favoring 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 requires otherwise. If any party has breached any representation,
warranty, or covenant contained herein in any respect, the fact that there
exists another representation, warranty, or covenant relating to the same
subject matter (regardless of the relative levels of specificity) which the
party has not breached shall not detract from or mitigate the fact that the
party is in breach of the first representation, warranty, or covenant.
9.15 RULES OF INTERPRETATION. Except as otherwise expressly
provided in this Agreement, the following rules shall apply hereto: (i) the
singular includes the plural and plural includes the singular; (ii) "or" is not
exclusive and "include" and "including" are not limiting; (iii) a reference to
any agreement or other contract includes any permitted supplements and
amendments; (iv) a reference in this Agreement to a section or exhibit is a
reference to a section or exhibit within or attached to this Agreement unless
otherwise expressly provided; (v) a reference to a section or paragraph in this
Agreement shall, unless the context clearly indicates to the contrary, refer to
all sub-parts or sub-components of any said section or paragraph; (vi) words
such as "hereunder", "hereto", "hereof", and "herein", and other words of like
import shall, unless the context clearly indicates to the contrary, refer to the
whole of this Agreement and not to any particular clause hereof; (vii) the
headings of the articles or sections and the ordering or position thereof are
for convenience only and shall not in any way be deemed to affect the meaning of
this Agreement; (viii) a reference in this Agreement to a "person" or "party"
(whether in the singular or the plural) shall (unless otherwise indicated
herein) include both natural persons and unnatural persons (including, but not
limited to, corporations, partnerships, limited liability companies or
partnerships, trusts, etc.); (ix) all accounting terms not otherwise defined
herein shall have the meanings assigned to them in accordance with GAAP; and (x)
any reference in this Agreement to a "BUSINESS DAY" shall include each Monday,
Tuesday, Wednesday, Thursday and Friday that is not a day on which national
banks in Orlando,
Florida are closed.
9.16 AMENDMENT; WAIVER. This Agreement may not be modified,
amended, supplemented, canceled or discharged, except by written instrument
executed by all parties. No failure to exercise, and no delay in exercising, any
right, power or privilege under this Agreement shall operate as a waiver, nor
shall any single or partial exercise of any right, power or privilege hereunder
preclude the exercise of any other right, power or privilege. No waiver of any
breach of any provision shall be deemed to be a waiver of any preceding or
succeeding breach of the same or any other provision, nor shall any waiver be
implied from any course of dealing between the parties. No extension of time for
performance of any obligations or other acts hereunder or under any other
agreement shall be deemed to be an extension of the time for performance of any
other obligations or any other acts.
28
The rights and remedies of the parties under this Agreement are in addition to
all other rights and remedies, at law or equity, that they may have against each
other except as may be specifically limited herein.
EXECUTED as of the date first written above.
NOMADIC COLLABORATION, INC.
By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, PRESIDENT
LGC ACQUISITION CO.
By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, PRESIDENT
LIQUIDGOLF CORPORATION
By: /S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇, PRESIDENT
AND CHIEF EXECUTIVE OFFICER
29