Exhibit 10.16
ACQUISITION AGREEMENT
Dated as of October 31, 2003
Among
MASECO DENMARK A/S
And
MAXIMUM DYNAMICS, INC.
CONFIDENTIAL
The information contained herein is confidential and is intended only
for the person or entity to which it is issued. This information may
not be reproduced, distributed, or used for any other purpose without
the express written consent of Maximum Dynamics, Inc. and must be
returned upon demand.
ACQUISITION AGREEMENT
This ACQUISITION AGREEMENT ("Agreement") is entered into this 31st
day of October, 2003 (the "Effective Date") by and between MAXIMUM
DYNAMICS INC., a Colorado corporation (hereinafter referred to as
"Buyer") and MASECO DENMARK A/S, a Danish company (hereinafter
referred to as "Seller").
WHEREAS, each of the Boards of Directors of the Buyer and Seller
has approved this Agreement and the transactions contemplated hereby;
WHEREAS, simultaneously with the execution of this Agreement, the
Buyer and Seller are entering into a STOCK PURCHASE AGREEMENT (the
"Stock Purchase Agreement"), pursuant to which the Buyer shall
purchase eighty nine percent (89%) of the Seller; and
WHEREAS, Buyer is purchasing eighty nine percent (89%) of the
common stock of Maseco Denmark, which is owned by JC Holding ApS (the
sole shareholder of Maseco Denmark); and
WHEREAS, simultaneously with the execution of this Agreement, the
Buyer and Seller are also entering into a strategic relationship in
which, among other things, the Buyer and Seller will co-develop and
co-promote technology solutions in Africa, the United States, Europe
and Asia.
NOW, THEREFORE, in consideration of the respective
representations, warranties, covenants, agreements and conditions
contained herein, the parties hereto hereby agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions. (a) The following terms, as used
herein, have the following meanings:
"AFFILIATE" of any Person means any other Person directly or
indirectly controlling, controlled by or under common control with
such Person. For the purposes of this definition, "CONTROL" when used
with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership
of voting securities, by contract or otherwise; and the terms
"CONTROLLING" and "CONTROLLED" have meanings correlative to the
foregoing.
"BUSINESS DAY" means a day other than Saturday, Sunday or other
day on which commercial banks in New York, New York are authorized or
required by law to close.
"CLOSING" means the number of Shares that are validly tendered
and not withdrawn at the time of acceptance for payment to the Seller.
The number of shares is equal to or greater than the Maximum Number
and is accepted by the Seller as payment on or before the expiration
of the Offer.
"CONFIDENTIALITY AGREEMENT" means the letter agreement, dated
September 2003, between the Buyer and Seller.
"COLORADO LAW" means the General Corporation Law of the State of
Colorado.
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ACQUISITION AGREEMENT
"INTELLECTUAL PROPERTY RIGHT" means any patent, patent right,
trademark, trademark right, trade name, trade name right, service
mark, service mark right, copyright and other proprietary intellectual
property right.
"ISSUED SHARES" means any additional issued shares as the case
may be.
"KNOWLEDGE" of the Buyer or Seller shall mean the knowledge,
after reasonable inquiry, of Eric Majors, Joshua Wolcott, Paul
Stabnow, Franco Maccioni, Johannes Clausen, Klaus Roy-Poulsen, Kai
Mortensen or Tage Michelsen.
"MATERIAL ADVERSE EFFECT" means, (A) with respect to the Buyer, a
material adverse effect on the condition (financial or otherwise),
business, assets or results of operations or prospects of the Buyer,
except any such effect resulting from or arising in connection with
(i) this Agreement or the transactions contemplated hereby or the
announcement hereof, (ii) changes, circumstances or conditions
(including changes in applicable laws, rules and regulations)
affecting the software industry in general, or (iii) changes in
general economic conditions or financial markets, and (B) with respect
to Seller, a material impairment of the ability of Seller to perform
its obligations under or consummate the transactions contemplated by
this Agreement.
"1933 ACT" means the Securities Act of 1933.
"1934 ACT" means the Securities Exchange Act of 1934.
"PERSON" means an individual, corporation, partnership, limited
liability company, association, trust or other entity or organization,
including a government or political subdivision or an agency or
instrumentality thereof.
"SEC" means the Securities and Exchange Commission.
"Selling Shareholders" means any individuals, corporations,
trusts or entities that own shares in the Seller that are selling
shares to the Buyer under the terms of the Stock Purchase Agreement.
"SHARE ISSUANCE" means any additional share issuance as the case
may be.
"SHARES" means the shares of common stock, $0.001 par value, of
the Buyer.
"SUBSIDIARY" means, with respect to any Person, any entity of
which securities or other ownership interests having ordinary voting
power to elect a majority of the board of directors or other persons
performing similar functions are at any time directly or indirectly
owned by such Person.
"TERMINATION DATE" means November 15, 2003; PROVIDED that if on
or before November 15, 2003, Seller has not accepted for payment
Shares validly tendered and not withdrawn pursuant to the Offer.
"THIRD PARTY CHANGE OF CONTROL OFFER" means a bona fide public
offer or proposal by any Person (other than Buyer and its Affiliates)
to acquire beneficial ownership of more than 89% of the outstanding
Shares.
Any reference in this Agreement to a statute shall be to such
statute, as amended from time to time, and to the rules and
regulations promulgated thereunder.
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ACQUISITION AGREEMENT
ARTICLE 2
THE OFFER
Section 2.01. The Offer. (a) As promptly as practicable after the date
hereof, but in no event later than ten Business Days after the date
hereof, Buyer shall commence an offer (the "OFFER") to purchase four
hundred and fifty thousand (445,000) Shares (such number of Shares,
the "MAXIMUM NUMBER") from JC Holdings ApS at a share price of thirty
four Danish Krone and five Oere (34.05), which on the date of this
Agreement is five dollars and thirty two cents (US$5.32). Buyer shall
pay for the purchase of Shares with the issuance of six million
(6,000,000) shares of its Common Stock (the "ACQUISITION"). The
initial expiration date of the Offer shall be the twentieth Business
Day following the commencement of the Offer (determined under Rule
14d-1(g)(3) promulgated under the 1934 Act). Seller shall extend the
Offer for any period required by any rule, regulation, interpretation
or position of the SEC or the staff thereof applicable to the Offer or
any period required by applicable law. Buyer or Seller may extend the
Offer from time to time until such conditions are satisfied or waived;
PROVIDED that (i) each such extension of the Offer shall be for a
period of not more than ten Business Days, and (ii) Buyer shall not,
without the prior written consent of the Seller, extend the Offer
beyond the Termination Date.
(b) Upon completion of this transaction, Buyer shall own eighty
nine percent (89%) of Maseco Denmark and the intellectual property of
TagNet and related mobile logistics intellectual property contained
therein. Buyer agrees to pay royalty payments to Seller for sales of
TagNet and products using the mobile logistics intellectual property
as set forth in Exhibit A - Schedule of Intellectual Property and
Royalty Agreement.
(c) The Parties agree that there shall be a buyout clause between
the Buyer and JC Holdings ApS for the remaining eleven percent (11%)
of JC Holdings ApS' holding of Maseco Denmark, which is set forth as
follows:
(i) If Maseco Denmark, or the entity through which the
mobile logistics technology and solutions operations shall be
run, achieves in the fourteen months following the date of this
Agreement revenues of 50 million South African Rand with net
profits of at least 10 million South African Rand, then JC
Holdings shall sell to Buyer the remaining ten percent (10%) of
its holdings in Maseco Denmark in exchange for 200,000 shares of
Common Stock in Maximum Dynamics, Inc.;
(ii) If Maseco Denmark, or the entity through which the
mobile logistics technology and solutions operations shall be
run, achieves in the fourteen months following the date of this
Agreement revenues of 200 million South African Rand with net
profits of at least 40 million South African Rand, then JC
Holdings shall sell to Buyer the remaining ten percent (10%) of
its holdings in Maseco Denmark in exchange for 1,000,000 shares
of Common Stock in Maximum Dynamics, Inc.;
(iii) If Maseco Systems Integrators, or the entity through
which its current operations shall be run, achieves in the
fourteen months following the date of this Agreement revenues of
15 million South African Rand with net profits of at least 1
million South African Rand, then JC Holdings shall receive
200,000 shares of Common Stock in Maximum Dynamics, Inc.;
(iv) If Maseco Systems Integrators, or the entity through
which its current operations shall be run, achieves in the
fourteen months following the date of this Agreement revenues of
50 million South African Rand with net profits of at least 4
million South African Rand, then JC Holdings shall receive
1,000,000 shares of Common Stock in Maximum Dynamics, Inc.;
(v) If any of the incentive clauses in Section 2.01(c) are
met, the shares of Common Stock of Maximum Dynamics, Inc. that
shall be issued will be subject to the Regulation S restrictions
as set forth in Section 2.01(e).; and
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ACQUISITION AGREEMENT
(vi) If none of the clauses as set forth in Section 2.01(c)
are met, Maximum Dynamics, Inc. shall be entitled to buy the
remaining ten percent (10%) of JC Holdings ApS' holding of Maseco
Denmark for US$1.
(d) As soon as practicable on the date of CLOSING, Buyer and
Seller shall file with the SEC all required filings with respect to
the Offer and resulting transaction. Buyer and Seller each agrees
promptly to correct any information provided by it for use in the
filings if and to the extent that such information shall have become
false or misleading in any material respect. Buyer and Seller shall
provide each other and respective counsels with any comments or other
communications, whether written or oral, that may be received from
time to time from the SEC or its staff with respect to the Acquisition
promptly after receipt of such comments or other communications.
(e) Each certificate for Shares issued to Seller as payment for
the Acquisition shall bear a legend in substantially the following
form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN
THE UNITED STATES OR TO OR FOR THE ACCOUNT OR BENEFIT OF,
U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE.
BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT
IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN
AN OFFSHORE TRANSACTION, (2) BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY,
PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION
DATE") WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL
ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR
ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY
(OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE
ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C)
PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED
STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (D) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR
(7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL
INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR,
FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER
OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF
THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE SURVIVING CORPORATION'S
RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT
TO CLAUSES (C), (D) OR (E) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO THE SURVIVING CORPORATION AND IN THE CASE
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ACQUISITION AGREEMENT
OF THE FOREGOING CLAUSE (D), A CERTIFICATE OF TRANSFER (A
FORM OF WHICH MAY BE OBTAINED FROM THE SURVIVING
CORPORATION) COMPLETED AND DELIVERED BY THE TRANSFEROR TO
THE SURVIVING CORPORATION. HEDGING TRANSACTIONS WITH REGARD
TO THIS SECURITY MAY NOT BE CONDUCTED BY THE HOLDER HEREOF
UNLESS IN COMPLIANCE WITH THE SECURITIES ACT. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION", "UNITED STATES"
AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT.
Section 2.02. Buyer Action. (a) The Buyer hereby approves of and
consents to the Offer and represents that its Board of Directors, at a
meeting duly called and held, has resolved to recommend the Offer. The
Seller hereby approves of and consents to the Offer and represents
that its Board of Directors, at a meeting duly called and held, has
resolved to recommend acceptance of the Offer by the holders of
Shares.
Section 2.03. Buyer Disclosure Documents. The Buyer agrees that
each document required to be filed by the Buyer with the SEC or
required to be distributed or otherwise disseminated by the Buyer to
the Buyer's stockholders in connection with the transactions
contemplated by this Agreement (the "COMPANY DISCLOSURE DOCUMENTS"),
and any amendments or supplements thereto, when filed, distributed or
disseminated, as applicable, will comply as to form in all material
respects with the applicable requirements of the 1934 Act.
Section 2.04. Seller Disclosure Documents. Seller agrees that the
information that it furnishes to the Buyer in writing specifically for
use in any Buyer Disclosure Document will not contain any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements made therein, in the light
of the circumstances under which they were made, not misleading at the
time of the filing of such Buyer Disclosure Document or any supplement
or amendment thereto, at the time of any distribution or dissemination
thereof and at the time of the consummation of the Offer.
Section 2.05. Antidilution Adjustments. The number and kind of
securities purchased by the Buyer pursuant to this Agreement are
subject to adjustment from time to time as provided in this section.
(a) In the event that the Seller shall at any time after this
Agreement is consummated (i) declare and pay a dividend on the Common
Stock payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, (iii) combine the outstanding Common Stock
into a smaller number of shares, or (iv) issue, change, or alter any
of its shares of capital stock in a reclassification or
recapitalization (including any such reclassification in connection
with a consolidation or merger in which the Seller is the continuing
or surviving Person), in each such case, the number and kind of shares
of capital stock issuable upon exercise of any of the above shall be
proportionately adjusted so that the Buyer shall be entitled to
receive the aggregate number and kind of shares of Common Stock so
that Buyer maintains its eighty nine percent (89%) ownership of
Seller. If an event occurs which would require an adjustment under
this Section hereof, the adjustment provided in this shall be in
addition to, and shall be made prior to, any adjustment required
pursuant to this Section.
Section 2.06. Appointments. Buyer shall nominate two individuals
to serve on the Board of Directors and Maseco Denmark shall appoint
three individuals to the Board of Directors of Maseco Denmark. Buyer
shall also have the right to appoint additional members to the Board
of Directors of Maseco Denmark, PROVIDED that Maseco Denmark maintains
at least one more member that it has appointed to Maseco Denmark's
Board of Directors than the total number of members appointed by
Buyer. Buyer's appointed members to the Board of Directors of Maseco
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ACQUISITION AGREEMENT
Denmark shall serve in accordance with the Bylaws of Maseco Denmark
and be held in accordance with the laws of Denmark. Maximum Dynamics
shall also appoint Johannes Clausen to service as Vice President of
Communications Technology as set forth in the respective Employment
Agreement.
Section 2.07. Unwind Provision. The Acquisition shall contain an
"UNWIND PROVISION" whereby Seller or Buyer may take the necessary
actions to cancel the acquisition and return each entity to its status
and structure prior to the acquisition. Terms of the Unwind Provision
are set forth as follows:
(a) Maseco Denmark shall have the option to exercise the Unwind
Provision should any of the following occur: (i) Buyer does not issue
the 6,000,000 shares of its Common Stock as payment for the Shares;
(ii) Buyer has a change in its Board of Directors membership such that
Eric Majors, Joshua Wolcott, and Paul Stabnow are removed or resign
from Buyer's Board of Directors; (iii) Buyer fails to make payments on
the royalties due to Seller as set forth in this Agreement; or (iv)
within twelve months of the signing of this Agreement, a receiver or
other liquidating officer is appointed for substantially all of the
assets or business of Buyer, or if Buyer makes an assignment for the
benefit of creditors, or Buyer becomes insolvent or bankrupt or enters
into reorganization proceedings.
(b) Buyer shall have the option to exercise the Unwind Provision
should any of the following occur: (i) Seller does not transfer the
Shares upon receipt of payment from Buyer; (ii) Seller fails to
transfer ownership of the intellectual property for TagNet and related
mobile logistics intellectual property to Maseco Denmark or Maximum
Dynamics; or (iii) within twelve months of the signing of this
Agreement, a receiver or other liquidating officer is appointed for
substantially all of the assets or business of Maseco Denmark, or if
Maseco Denmark makes an assignment for the benefit of creditors, or
Maseco Denmark becomes insolvent or bankrupt or enters into
reorganization proceedings.
(c) Should any of the conditions as set for in Section 2.07(a) or
2.07(b) be met and the Buyer or Seller exercises the Unwind Provision
and the parties do not otherwise agree to modification of terms or
extension of time periods or resolve the matter, then upon receipt by
written notice of Unwind from the party exercising the provision the
following shall occur: (i) Buyer's appointments to the Board of
Directors of Maseco Denmark and any appointed management shall all
resign; (ii) the 6,000,000 shares of Buyer issued as Payment for the
Shares shall be cancelled and returned to Buyer's treasury; (iii) the
Shares shall be cancelled and reissued to Sellers; (iv) the agreement
shall be deemed null and void.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF BUYER
The Buyer represents and warrants to Seller as follows:
Section 3.01. Corporate Existence And Power. The Buyer is a
corporation duly incorporated, validly existing and in good standing
under the laws of the State of Colorado and has all corporate powers
and all governmental licenses, authorizations, permits, consents and
approvals required to own, lease or otherwise hold its properties and
assets and to carry on its business as now conducted, except for those
licenses, authorizations, permits, consents and approvals the absence
of which would not have, individually or in the aggregate, a Material
Adverse Effect on the Buyer. The Buyer is duly qualified to do
business as a foreign corporation and is in good standing in each
jurisdiction where such qualification is necessary, except for those
jurisdictions where failure to be so qualified would not have,
individually or in the aggregate, a Material Adverse Effect on the
Buyer or materially impair the ability of the Buyer to consummate the
transactions contemplated by this Agreement and the Stock Purchase
Agreement.
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ACQUISITION AGREEMENT
Section 3.02. Corporate Authorization. The execution, delivery
and performance by the Buyer of this Agreement and the Stock Purchase
Agreement and the consummation by the Buyer of the transactions
contemplated hereby and thereby are within the Buyer's corporate
powers and have been duly authorized by all necessary corporate action
on the part of the Buyer. The Buyer has duly executed and delivered
each of this Agreement and the Stock Purchase Agreement, and each of
this Agreement and the Stockholder Agreement constitutes a valid and
binding agreement of the Buyer.
Section 3.03. Governmental Authorization. The execution, delivery
and performance by the Buyer of this Agreement and the Stock Purchase
Agreement and the consummation by the Buyer of the transactions
contemplated hereby and thereby require no action, consent, approval,
authorization, permit or order by or in respect of, or filing,
declaration or registration with, any governmental authority or agency
in the United States or any state thereof, other than (i) compliance
with any applicable requirements of the 1933 Act, the 1934 Act and any
other applicable securities or takeover laws, (ii) compliance with the
rules and regulations of the National Association of Securities
Dealers and the Nasdaq National Market, and (iii) any actions or
filings the absence of which would not have, individually or in the
aggregate, a Material Adverse Effect on the Buyer or materially impair
the ability of the Buyer to consummate the transactions contemplated
by this Agreement and the Stock Purchase Agreement.
Section 3.04. Non-Contravention. The execution, delivery and
performance by the Buyer of this Agreement and the Stock Purchase
Agreement and the consummation by the Buyer of the transactions
contemplated hereby and thereby do not and will not (i) contravene,
conflict with, or result in any violation or breach of any provision
of the certificate of incorporation or bylaws of the Buyer, (ii)
assuming compliance with the matters referred to in Section 3.03,
contravene, conflict with, or result in a violation or breach of any
provision of any applicable law, statute, ordinance, rule, regulation,
judgment, injunction, order or decree, or (iii) require any consent or
other action by any Person under, constitute a default under, or cause
or permit the termination, cancellation, acceleration or other change
of any right or obligation or the loss of any benefit to which the
Buyer is entitled under any provision of any agreement or other
instrument binding upon the Buyer or any license, franchise, permit,
certificate, approval or other similar authorization affecting, or
relating in any way to, the assets or business of the Buyer except for
such contraventions, conflicts and violations referred to in clause
(ii) and for such failures to obtain any such consent or other action,
defaults, terminations, cancellations, accelerations, changes or
losses referred to in clause (iii) that would not have, individually
or in the aggregate, a Material Adverse Effect on the Buyer or
materially impair the ability of the Buyer to consummate the
transactions contemplated by this Agreement and the Stock Purchase
Agreement.
Section 3.05. Capitalization. (a) The authorized capital stock of
the Buyer consists of 200,000,000 shares of common stock, no par
value, and 20,000,000 shares of preferred stock, no par value per
share. As of October 31, 2003, there were outstanding (i) 46,085,000
Shares, (ii) no shares of preferred stock, and (iii) no options or
warrants issued or outstanding. All outstanding shares of capital
stock of the Buyer have been duly authorized and validly issued and
are fully paid and nonassessable.
(b) No outstanding shares of capital stock of the Buyer have been
issued in violation of any purchase option, right of first refusal,
preemptive right, subscription right or any similar right under any
provision of Colorado Law, the certificate of incorporation or by-laws
of the Buyer or any contract to which the Buyer is bound, except for
such violations which would not have, individually or in the
aggregate, a Material Adverse Effect on the Buyer.
Section 3.06. Sec Filings. (a) The Buyer has filed all reports,
schedules, forms, statements and other documents required to be filed
by the Buyer with the SEC between February 25, 2002 and the date of
this Agreement (the "COMPANY SEC DOCUMENTS"). As of its filing date,
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ACQUISITION AGREEMENT
each Buyer SEC Document complied as to form in all material respects
with the applicable requirements of the 1933 Act and the 1934 Act, as
the case may be, and the rules and regulations of the SEC promulgated
thereunder applicable to such Buyer SEC Document.
(b) As of its filing date, each Buyer SEC Document filed pursuant
to the 1934 Act did not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements made therein, in the light of the circumstances under which
they were made, not misleading.
Section 3.07. Financial Statements. The audited consolidated
financial statements and unaudited consolidated interim financial
statements of the Buyer included in the Buyer SEC Documents fairly
present, in conformity with generally accepted accounting principles
("GAAP") applied on a consistent basis (except as may be indicated in
the notes thereto), the consolidated financial position of the Buyer
as of the dates thereof and their consolidated results of operations
and cash flows for the periods then ended (subject to normal year-end
adjustments in the case of any unaudited interim financial
statements).
Section 3.08. No Undisclosed Material Liabilities. The Buyer has
no other liabilities or obligations of any nature required by GAAP to
be set forth on a consolidated balance sheet of the Buyer or in the
notes thereto, other than:
(a) liabilities or obligations disclosed in the Buyer SEC
Documents;
(b) liabilities and obligations incurred in the ordinary course
of business since inception; and
(c) liabilities or obligations that would not have, individually
or in the aggregate, a Material Adverse Effect on the Buyer.
Section 3.09. Compliance With Laws. The Buyer is in compliance
with and, to the knowledge of the Buyer, have not been charged with or
given written notice of any violation of, any applicable laws, except
for failures to comply or violations that would not have, individually
or in the aggregate, a Material Adverse Effect on the Buyer or
materially impair the ability of the Buyer to consummate the
transactions contemplated by this Agreement and the Stock Purchase
Agreement.
Section 3.10. Litigation. There is no action, suit or proceeding
pending against or, to the knowledge of the Buyer, threatened against
or affecting, the Buyer that would have, individually or in the
aggregate, a Material Adverse Effect on the Buyer, nor is there any
judgment outstanding against the Buyer or any Subsidiary of the Buyer
that would have a Material Adverse Effect on the Buyer or materially
impair the ability of the Buyer to consummate the transactions
contemplated by this Agreement and the Stock Purchase Agreement.
Section 3.11. Absence Of Certain Changes. Except as disclosed in
the Buyer SEC Documents, from February 25, 2002 to the date of this
Agreement, the business of the Buyer has been conducted in the
ordinary course and during such period there has not been any event,
effect or development that has had, individually or in the aggregate,
a Material Adverse Effect on the Buyer or would materially impair the
ability of the Buyer to consummate the transactions contemplated by
this Agreement and the Stock Purchase Agreement.
Section 3.12. Intellectual Property. Except as disclosed in the
Buyer SEC Documents, no claims are pending or, to the knowledge of the
Buyer, threatened that the Buyer is infringing or otherwise adversely
affecting the rights of any Person with respect to any Intellectual
Property Right, except for such claims that would not have,
individually or in the aggregate, a Material Adverse Effect on the
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ACQUISITION AGREEMENT
Buyer or would not materially impair the ability of the Buyer to
consummate the transactions contemplated by this Agreement and the
Stock Purchase Agreement.
Section 3.13. Issued Shares. When issued to Seller pursuant to
the terms of this Agreement, the Issued Shares will be duly
authorized, validly issued, fully paid and non-assessable and will be
free and clear of encumbrances or liens of any kind, other than
restrictions imposed by applicable securities laws and the Stock
Purchase Agreement.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF SELLER
The Seller represents and warrants to Buyer as follows:
Section 4.01. Corporate Existence And Power. The Seller is a
corporation duly incorporated, validly existing and in good standing
under the laws of Denmark and has all corporate powers and all
governmental licenses, authorizations, permits, consents and approvals
required to own, lease or otherwise hold its properties and assets and
to carry on its business as now conducted, except for those licenses,
authorizations, permits, consents and approvals the absence of which
would not have, individually or in the aggregate, a Material Adverse
Effect on the Seller. The Seller is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction where
such qualification is necessary, except for those jurisdictions where
failure to be so qualified would not have, individually or in the
aggregate, a Material Adverse Effect on the Seller or materially
impair the ability of the Seller to consummate the transactions
contemplated by this Agreement and the Stock Purchase Agreement.
Section 4.02. Corporate Authorization. The execution, delivery
and performance by the Seller of this Agreement and the Stock Purchase
Agreement and the consummation by the Seller of the transactions
contemplated hereby and thereby are within the Seller's corporate
powers and have been duly authorized by all necessary corporate action
on the part of the Seller. The Seller has duly executed and delivered
each of this Agreement and the Stock Purchase Agreement, and each of
this Agreement and the Stockholder Agreement constitutes a valid and
binding agreement of the Seller.
Section 4.03. Governmental Authorization. The execution, delivery
and performance by the Seller of this Agreement and the Stock Purchase
Agreement and the consummation by the Seller of the transactions
contemplated hereby and thereby require no action, consent, approval,
authorization, permit or order by or in respect of, or filing,
declaration or registration with, any governmental authority or agency
in the United States or Denmark or any country thereof, other than (i)
compliance with any applicable securities requirements in Denmark, and
(ii) any actions or filings the absence of which would not have,
individually or in the aggregate, a Material Adverse Effect on the
Seller or materially impair the ability of the Seller to consummate
the transactions contemplated by this Agreement and the Stock Purchase
Agreement.
Section 4.04. Non-Contravention. The execution, delivery and
performance by the Seller of this Agreement and the Stock Purchase
Agreement and the consummation by the Seller of the transactions
contemplated hereby and thereby do not and will not (i) contravene,
conflict with, or result in any violation or breach of any provision
of the certificate of incorporation or bylaws of the Seller, (ii)
assuming compliance with the matters referred to in Section 4.03,
contravene, conflict with, or result in a violation or breach of any
provision of any applicable law, statute, ordinance, rule, regulation,
judgment, injunction, order or decree, or (iii) require any consent or
CONFIDENTIAL Page 10
ACQUISITION AGREEMENT
other action by any Person under, constitute a default under, or cause
or permit the termination, cancellation, acceleration or other change
of any right or obligation or the loss of any benefit to which the
Seller is entitled under any provision of any agreement or other
instrument binding upon the Seller or any license, franchise, permit,
certificate, approval or other similar authorization affecting, or
relating in any way to, the assets or business of the Seller except
for such contraventions, conflicts and violations referred to in
clause (ii) and for such failures to obtain any such consent or other
action, defaults, terminations, cancellations, accelerations, changes
or losses referred to in clause (iii) that would not have,
individually or in the aggregate, a Material Adverse Effect on the
Seller or materially impair the ability of the Seller to consummate
the transactions contemplated by this Agreement and the Stock Purchase
Agreement.
Section 4.05. Capitalization. (a) The authorized capital stock of
the Seller consists of 500,000 shares of common stock, no par value.
As of October 31, 2003, there were outstanding (i) 500,000 Shares, and
(ii) no options or warrants issued or outstanding. All outstanding
shares of capital stock of the Seller have been duly authorized and
validly issued and are fully paid and nonassessable.
(b) No outstanding shares of capital stock of the Seller have
been issued in violation of any purchase option, right of first
refusal, preemptive right, subscription right or any similar right
under any provision of the laws of Denmark, the certificate of
incorporation or by-laws of the Seller or any contract to which the
Seller is bound, except for such violations which would not have,
individually or in the aggregate, a Material Adverse Effect on the
Seller.
Section 4.06. Financial Statements. The audited financial
statements and unaudited consolidated interim financial statements of
the Seller fairly present the consolidated financial position of the
Seller as of the dates thereof and their consolidated results of
operations and cash flows for the periods then ended (subject to
normal year-end adjustments in the case of any unaudited interim
financial statements).
Section 4.07. No Undisclosed Material Liabilities. The Seller has
no other liabilities or obligations of any nature, other than:
(a) liabilities or obligations disclosed in the materials
submitted to Buyer;
(b) liabilities and obligations incurred in the ordinary course
of business since inception; and
(c) liabilities or obligations that would not have, individually
or in the aggregate, a Material Adverse Effect on the Seller.
Section 4.08. Compliance With Laws. The Seller is in compliance
with and, to the knowledge of the Seller, has not been charged with or
given written notice of any violation of, any applicable laws, except
for failures to comply or violations that would not have, individually
or in the aggregate, a Material Adverse Effect on the Seller or
materially impair the ability of the Seller to consummate the
transactions contemplated by this Agreement and the Stock Purchase
Agreement.
Section 4.09. Litigation. There is no action, suit or proceeding
pending against or, to the knowledge of the Seller, threatened against
or affecting, the Seller that would have, individually or in the
aggregate, a Material Adverse Effect on the Seller, nor is there any
judgment outstanding against the Seller or any Subsidiary of the
Seller that would have a Material Adverse Effect on the Seller or
materially impair the ability of the Seller to consummate the
transactions contemplated by this Agreement and the Stock Purchase
Agreement.
Section 4.10. Absence Of Certain Changes. The business of the
Seller has been conducted in the ordinary course since inception and
there has not been any event, effect or development that has had,
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ACQUISITION AGREEMENT
individually or in the aggregate, a Material Adverse Effect on the
Seller or would materially impair the ability of the Seller to
consummate the transactions contemplated by this Agreement and the
Stock Purchase Agreement.
Section 4.11. Intellectual Property. No claims are pending or, to
the knowledge of the Seller, threatened that the Seller is infringing
or otherwise adversely affecting the rights of any Person with respect
to any Intellectual Property Right, except for such claims that would
not have, individually or in the aggregate, a Material Adverse Effect
on the Seller or would not materially impair the ability of the Seller
to consummate the transactions contemplated by this Agreement and the
Stock Purchase Agreement.
Section 4.12. No Ownership Of Shares. Seller nor any of its
Affiliates directly or indirectly beneficially owns any Shares of
Buyer.
ARTICLE 5
COVENANTS OF THE SELLER
The Seller agrees that:
Section 5.01. Conduct Of The Seller. From the date hereof until
the Closing, the Seller will not take any Prohibited Action (as
defined in the Stock Purchase Agreement) without the consent of Buyer.
Section 5.02. No Solicitation. The Seller shall not, nor shall it
authorize or permit any officer, director or employee of, or any
investment banker, attorney or other advisor or representative of the
Seller to, directly or indirectly, solicit, initiate or encourage the
submission of, any Third-Party Change of Control Offer.
ARTICLE 6
COVENANTS OF THE BUYER
The Buyer agrees that:
Section 6.01. Reasonable Best Efforts. (a) Subject to the terms
and conditions of this Agreement, the Buyer will use its reasonable
best efforts to take, or cause to be taken, all actions and to do, or
cause to be done, all things necessary, proper or advisable under
applicable laws and regulations to consummate the transactions
contemplated by this Agreement including, without limitation, using
its reasonable best efforts to cause the conditions to the Offer to be
satisfied as soon as reasonably possible and, subject to the terms and
conditions of this Agreement, consummating the Offer as soon as
possible after such conditions are satisfied or waived.
Section 6.02. Certain Filings. The Buyer shall cooperate with in
connection with the preparation of the Company Disclosure Documents
and any filings required by the SEC or other regulating bodies, (ii)
in determining whether any action by or in respect of, or filing with,
any governmental body, agency, official, or authority is required, or
any actions, consents, approvals or waivers are required to be
obtained from parties to any material contracts, in connection with
the consummation of the transactions contemplated by this Agreement,
and (iii) in taking such actions or making any such filings,
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ACQUISITION AGREEMENT
furnishing information required in connection therewith or with the
Company Disclosure Documents and seeking timely to obtain any such
actions, consents, approvals or waivers.
Section 6.03. Public Announcements. The Buyer will issue a press
release promptly after the execution of this Agreement. The Buyer will
consult with Seller before issuing any press release or making any
public statement with respect to this Agreement, the Stock Purchase
Agreement or the transactions contemplated hereby or thereby and,
except as may be required by applicable law or any listing agreement
with any national securities exchange or automated quotation system,
will not issue any such press release or make any such public
statement prior to such consultation.
Section 6.04. Notices Of Certain Events. Each of the parties
shall promptly notify the other party of:
(a) any notice or other communication from any Person alleging
that the consent of such Person is or may be required in connection
with the transactions contemplated by this Agreement or the Stock
Purchase Agreement; and
(b) any notice or other communication from any governmental or
regulatory agency or authority in connection with the transactions
contemplated by this Agreement or the Stock Purchase Agreement;
ARTICLE 7
TERMINATION
Section 7.01. Termination. This Agreement may be terminated at
any time:
(a) by mutual written agreement of the Buyer and Seller;
(b) by either the Buyer or Sellers, if the Offer has not been
consummated on or before the Termination Date; PROVIDED that the right
to extend the Offer has not been so consummated by either party
pursuant to Section 2.01(a);
(c) by the Sellers, if Buyer shall have failed to commence the
Offer in the time required by this Agreement;
(d) by Buyer, if (i) any of the representations or warranties of
either Seller contained in this Agreement or the Commercial
Arrangements, disregarding all qualifications and exceptions contained
therein relating to materiality or Material Adverse Effect, shall fail
to be true and correct as of the date made (or if expressly made as of
an earlier date, as of such date), other than for such failures to be
true and correct that would not have, individually or in the
aggregate, a Material Adverse Effect on either Seller, (ii) the
representations and warranties of either Seller set forth herein shall
fail to be true and correct in all material respects as of the date
made, (iii) either Seller shall have breached or failed to perform in
any material respect any of its obligations under the Acquisition
Agreement required to be performed on or prior to such time, or (iv)
either Seller shall have taken a Prohibited Action without the consent
of Buyer after the date of this Agreement; PROVIDED that such breach
of representation or warranty or breach or failure to perform such
obligation cannot be or has not been cured within 30 days after the
giving of written notice to the Sellers of such breach or failure to
perform;
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ACQUISITION AGREEMENT
(e) by either the Buyer or Sellers, if the party desiring to
terminate this Agreement pursuant to this Section 7.01 (other than
pursuant to Section 7.01(a)) shall give notice of such termination to
the other party.
(f) by either the Buyer or Sellers pursuant to the Unwind
Provision as set forth in Section 2.07(a) or 2.07(b).
Section 7.02. Effect Of Termination. If this Agreement is
terminated pursuant to Section 7.01, this Agreement shall become void
and of no effect with no liability on the part of any party (or any
stockholder, director, officer, employee, agent, consultant or
representative of such party) to the other party hereto, PROVIDED that
such termination shall not relieve a party hereto from any liability
for damages incurred or suffered by the other party as a result of the
failure of such party's representations and warranties hereunder to be
true or the failure of such party to perform any covenant hereunder.
The provisions of Sections 7.02, 8.04, 8.06, 8.07 and 8.08 shall
survive any termination hereof pursuant to Section 7.01.
ARTICLE 8
MISCELLANEOUS
Section 8.01. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including
facsimile transmission) and shall be given,
if to the Buyer, to:
Maximum Dynamics, Inc.
2 N. Cascade Avenue, Ste 1100
Colorado Springs, CO 80903
Attention: Joshua Wolcott
Chief Financial Officer
Fax: (303) 744-7296
if to Seller, to:
Maseco Denmark A/S
Herstedvestorstrade 56
DK - 2620 ACGertsFund
Attention: Johannes Clausen
Title: President
Fax: __________________
or such other address or facsimile number as such party may hereafter
specify for the purpose by notice to the other parties hereto. All
such notices, requests and other communications shall be deemed
received on the date of receipt by the recipient thereof if received
prior to 5 p.m. in the place of receipt and such day is a Business Day
in the place of receipt. Otherwise, any such notice, request or
communication shall be deemed not to have been received until the next
succeeding Business Day in the place of receipt.
Section 8.02. Survival. The representations and warranties and
agreements contained herein and in any certificate or other writing
delivered pursuant hereto shall not survive the Closing, except for
the agreements set forth in Section 2.01(a)(i), Section 2.01(a)(ii)
and Sections 8.04, 8.05, 8.06, 8.07 and 8.08.
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ACQUISITION AGREEMENT
Section 8.03. Amendments; No Waivers. (a) Any provision of this
Agreement may be amended or waived prior to the Closing if, but only
if, such amendment or waiver is in writing and is signed, in the case
of an amendment, by each party to this Agreement or, in the case of a
waiver, by each party against whom the waiver is to be effective.
(b) No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor
shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be cumulative
and not exclusive of any rights or remedies provided by law.
Section 8.04. Expenses. All costs and expenses incurred in
connection with this Agreement shall be paid by the party incurring
such cost or expense.
Section 8.05. Successors And Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns, PROVIDED
that no party may assign, delegate or otherwise transfer any of its
rights or obligations under this Agreement without the consent of each
other party hereto.
Section 8.06. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Colorado,
without regard to the conflicts of laws rules of such state.
Section 8.07. Jurisdiction. Any suit, action or proceeding
seeking to enforce any provision of, or based on any matter arising
out of or in connection with, this Agreement or the transactions
contemplated hereby may be brought in any federal court located in the
State of Colorado or, to the extent no such federal court has
jurisdiction over such action, suit or proceeding, any Colorado state
court, and each of the parties hereby consents to the jurisdiction of
such courts (and of the appropriate appellate courts therefrom) in any
such suit, action or proceeding and irrevocably waives, to the fullest
extent permitted by law, any objection that it may now or hereafter
have to the laying of the venue of any such suit, action or proceeding
in any such court or that any such suit, action or proceeding brought
in any such court has been brought in an inconvenient form. Process in
any such suit, action or proceeding may be served on any party
anywhere in the world, whether within or without the jurisdiction of
any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 9.01 shall be
deemed effective service of process on such party.
Section 8.08. Waiver Of Jury Trial. Each of the parties hereto
hereby irrevocably waives any and all right to trial by jury in any
legal proceeding arising out of or related to this agreement or the
transactions contemplated hereby.
Section 8.09. Counterparts; Effectiveness; Benefit. This
Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument. This Agreement shall
become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto. No
provision of this Agreement is intended to confer any rights,
benefits, remedies, obligations, or liabilities hereunder upon any
Person other than the parties hereto and their respective successors
and assigns.
Section 8.10. Entire Agreement. This Agreement, the
Confidentiality Agreement, the Commercial Arrangements and the Stock
Purchase Agreement constitute the entire agreement between the parties
with respect to the subject matter of this Agreement and supersede all
prior agreements and understandings, both oral and written, between
the parties with respect to this Agreement.
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ACQUISITION AGREEMENT
Section 8.11. Captions. The captions herein are included for
convenience of reference only and shall be ignored in the construction
or interpretation hereof.
Section 8.12. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent
jurisdiction or other authority to be invalid, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions of
this Agreement shall remain in full force and effect and shall in no
way be affected, impaired or invalidated so long as the economic or
legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such a
determination, the parties shall negotiate in good faith to modify
this Agreement so as to affect the original intent of the parties as
closely as possible in an acceptable manner in order that the
transactions contemplated hereby be consummated as originally
considered to the fullest extent possible.
Section 8.13. Specific Performance. The parties hereto agree that
irreparable damage would occur if any provision of this Agreement were
not performed in accordance with the terms hereof and that the parties
shall be entitled to an injunction or injunctions to prevent breaches
of this Agreement or to enforce specifically the performance of the
terms and provisions hereof in any federal court located in the State
of Colorado or, to the extent no such federal court has jurisdiction
over such proceeding, any Colorado state court, in addition to any
other remedy to which they are entitled at law or in equity.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers
as of the day and year first above written.
MAXIMUM DYNAMICS, INC. MASECO DENMARK A/S
---------------------- ------------------
By: By:
---------------------- ------------------
Name: Eric R. Majors Name: Johannes Clausen
Title: Chairman of the Board Title: Chairman of the Board
JC Holdings ApS
---------------
By: By:
----------------------- ----------------
Name: Joshua Wolcott Name: Johannes Clausen
Title: Secretary Title: Director
____________________________________________________________________________
CONFIDENTIAL Page 16
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ACQUISITION AGREEMENT
EXHIBIT A
SCHEDULE OF INTELLECTUAL PROPERTY AND ROYALTY AGREEMENT
As part of this Acquisition Agreement, the Parties hereby agree that
the Intellectual property of Maseco Denmark shall be owned 89% by
Maximum Dynamics upon closing of the transaction. The intellectual
property to be transferred in title, rights and ownership shall be:
1. TagNet
2. All related mobile logistics intellectual property to include
product designs, source code, trademarks, trade names, patents
and any other form of intellectual property rights.
Section A1.1. Royalty Provision. The Parties hereby agree to the
following Royalty Provision. Buyer or any of Buyer's subsidiaries or
agents, or Maseco Denmark after completion of this transaction, agrees
to pay JC Holdings ApS a total payment ("Royalty") equal to twelve and
a half percent (12.5%) of each sale of: (i) TagNet; (ii) related
mobile logistics device; and/or (iii) mobile logistics related
service. JC Holdings ApS shall be responsible for the disbursement of
the Royalty to any and all parties entitled to such payment and shall
indemnify Maximum Dynamics, Inc. from any misappropriation of funds by
JC Holdings ApS.
Should the above listed Selling Shareholders transfer their
rights in part or in full to another individual or entity, the royalty
percentage shall not be amended. The total royalty payments to be
disbursed shall not exceed more than twelve and a half percent (12.5%)
of the amount of the sale. The Royalty Provision shall continue for as
long as Maximum Dynamics holds an eighty nine percent (89%) or greater
ownership of Maseco Denmark and the rights to the Intellectual
Property set forth above.
CONFIDENTIAL Page 17
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