EXHIBIT 10.1
This Agreement is made as of December 9,2002 by and between Ocean Data Equipment
Corporation, a Delaware Corporation; hereinafter called "ODEC", and its
subsidiary Ergo Systems, a Virginia Corporation; hereinafter called Ergo and
Markland Technologies, a Florida Corporation hereinafter called "Markland" and
its subsidiary Security Technology Inc., a Delaware Corporation hereinafter
called "STI".
RECITALS:
(A) ODEC owns via its wholly owned subsidiary Ergo Systems a General
Services Administration (GSA) contract GS 35F4874H, as set forth in
Exhibit A to this Agreement. As sole equity owner of subject Ergo and
the GSA contract, it has the exclusive authority to sell or otherwise
transfer ownership of these assets.
(B) ODEC wishes to sell Ergo and STI wishes to purchase such on the terms
and conditions contained in this Agreement.
(C) ODEC warrants that Ergo has no liabilities current or past and no
assets other than the above GSA contract and associated accounts
receivables and accounts payables in relation thereto.
(D) Markland and its subsidiary STI wish to employ ODEC during the two year
period following the effective date of this Agreement to perform such
tasks as may be necessary to orderly execute the Statement of Work
required under the subject GSA contract GS 35F4874H. The scope of such
tasks, along with the compensation for such will be defined as those
required activities become necessary to complete via standard purchase
order agreements.
(E) In addition to those tasks denoted previously in "(D)", Markland and
STI wish to employ ODEC, on a job-by-job basis to perform strategic
marketing, research, field surveys, product development activities and
all else necessary to support the GSA contract and its application to
customers. Such services shall be provided to Markland and/or STI
and/or to any entity to whom Markland and/or STI has authorized to
perform under the GSA contract. Fees for such services shall be
mutually agreed upon, as reasonably determined by ODEC and the
contracting entity. As part of its obligations under this Agreement,
ODEC agrees to accept such assignments on a job-by-job basis as
specified herein.
AGREEMENTS:
I. SALE AND PURCHASE
1.1 ASSETS. Relying upon the representations and warranties, subject to the
terms and conditions contained herein, ODEC agrees to sell and STI
agrees to purchase Ergo Systems. Such assets are described, without
limitation, in Exhibit A.
1.2 PURCHASE PRICE AND TERMS. The purchase price, along with payment terms
and instrument for such are contained in Exhibit B.
II. REPRESENTATIONS AND WARRANTIES
2.1 ODEC represents and warrants to Markland and its subsidiary STI as
follows:
(a) CORPORATE STATUS. ODEC is a corporation duly organized and existing in
good standing under the laws of the State of Delaware and is qualified
to do business with full power, corporate and otherwise, to carry on
its business and own its assets.
(b) OFFICER STATUS. Robert Tarini is the President of ODEC and represents
himself to be duly authorized to act on behalf of ODEC as to execute
this Agreement on their behalf. Ken Ducey is the President of Markland
and its STI subsidiary and represents himself to be fully authorized to
act on behalf of Markland and STI as to execute this Agreement on their
behalf.
(c) TITLE OF ASSETS. ODEC warrants that it is the sole owner of all assets
and rights to assets, including rights to sell or otherwise transfer
and use assets which are contained in Exhibit A. Further, ODEC warrants
that all assets contained in Exhibit A are free and clear of all
pledges, liens, encumbrances, security interest, mortgages, deeds of
trusts and claims whatsoever and of any and all restrictions on ODEC's
right to sell such to STI.
(d) PRIOR/FUTURE ASSET SALES. ODEC warrants that no entity has previously
purchased or been granted the rights to utilize, market or sell (or
lease) any of the Assets denoted in Exhibit A.
(e) LITIGATION, PROCEEDINGS OR CLAIMS. ODEC warrants that there is no
litigation, governmental proceeding, patent dispute or the like either
threatened or pending against ODEC, which might adversely affect the
ability of ODEC to transfer subject Assets to STI or that might result
in an unclear title to subject Assets. ODEC shall indemnify Markland
and STI against any claims by any other party for patent infringement,
prior ownership or the like. ODEC shall not indemnify Markland or STI
against any claims by any other party for patent infringement, prior
ownership or the like resulting from the actions of Markland or STI
over which ODEC has no direct control.
2.2 REPRESENTATIONS AND WARRANTIES OF MARKLAND AND STI. Markland and STI
represent and warrant to ODEC as follows:
(a) COMPANY STATUS. Markland and STI are Corporations duly organized and
existing in good standing under the laws of the States of Florida and
Delaware respectively, and are qualified to do business with full
power, company and otherwise, to carry on their respective businesses
and own their respective assets.
(b) OFFICER STATUS. Ken Ducey, Executive Vice President of Markland and STI
is duly authorized to execute this Agreement on behalf of Markland and
STI.
III. COVENANTS
3.1 CONFIDENTIAL INFORMATION. All technical and business information
furnished by either party in connection with the transactions
contemplated by this Agreement shall be maintained in confidence and
shall not be disclosed to any party not part of this Agreement or used
except for the purposes of this Agreement. The foregoing obligations
shall not apply to information which the recipient can show that (a)
the information was previously known to it at the time of receipt, (b)
was in the public domain without fault of recipient, (c) corresponds to
information which was furnished to the recipient by a third party
lawfully entitled to do so, (d) was developed independently by
personnel of the recipient who has no access to the information or (e)
is required to be disclosed in legal proceedings or to the SEC. If this
Agreement shall not be closed, parties shall return to each other all
documents submitted by the respective party (sender).
3.2 NONCOMPETITION. ODEC agrees not to compete, directly or indirectly with
Markland or STI in any activities which are undertaken within the scope
of the GSA contract. Further, ODEC agrees, that if Markland or STI
should sell, lease, license or otherwise transfer rights to utilize
and/or ownership of subject Assets denoted in Exhibit A, ODEC nor
persons or entities under their control shall compete with the
recipient(s) of said technology in any activities which are undertaken
within the scope of the GSA contract. Lastly, ODEC agrees not to become
an independent consultant or employee or shareholder in any entity
which competes with Markland or STI, its successors or assignees in any
way which involves the delivery of goods and services designated in the
GSA contract listed in Appendix A.
IV CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE PARTIES
4.1 CONDITIONS TO THE OBLIGATIONS OF MARKLAND. The obligations of Markland
and STI to close this Agreement are subject to the following
conditions:
(a) REPRESENTATIONS AND WARRANTIES. The representations and warranties of
ODEC shall continue to be accurate in all respects on the Closing Date,
subject to changes occurring in the ordinary cause of business and not
materially adverse in nature.
4.2 CONDITIONS TO THE OBLIGATIONS OF ODEC. The obligations of ODEC to close
this Agreement are subject to the following conditions:
(b) REPRESENTATIONS AND WARRANTIES. The representations and warranties of
Markland and its subsidiary STI shall continue to be accurate in all
respects on the Closing Date, subject to changes occurring in the
ordinary cause of business and not materially adverse in nature.
4.3 FAILURE OF FULFILLMENT OF CONDITIONS; REMEDIES. The parties each agree
to make the reasonable efforts to fulfill their respective conditions
and to cooperate with the other party in fulfillment of its conditions.
If any party fails or refuses to perform this Agreement, the other
party or parties shall be entitled to specific performance of this
Agreement or such other remedies as may be granted in equity or law by
a court of competent jurisdiction.
V. DOCUMENTS TO BE DELIVERED
5.1 DOCUMENTS DELIVERED BY ODEC. ODEC shall deliver to STI the following
documents:
(a) All paperwork and corporate files associated with Ergo Systems.
(b) All paperwork and files associated with the GSA contract GS 35F4874H.
(c) All corporate stock duly endorsed over to STI of Ergo Systems.
VI. GENERAL PROVISIONS
6.1 SURVIVAL; INDEMNITIES. All representations, warranties and agreements
of the parties shall survive the Closing. ODEC shall indemnify Markland
and STI and Markland and STI shall indemnify ODEC against all loss,
liability, damage and expense resulting from willful, material untruth,
inaccuracy or incompleteness of the information contained in their
respective representations and warranties or any failure to perform
their respective agreements.
6.2 ENTIRE AGREEMENT. In entering into and Closing this Agreement, no party
has relied or shall rely upon any promises, estimates, projections,
representations and warranties not expressed herein, and this Agreement
expresses their entire agreement on the subject matter.
6.3 AMENDMENT AND WAIVER. Neither this Agreement nor any provision or
provisions herein may be amended or waived except by a written
amendment executed by all parties.
6.4 GOVERNING LAW. The validity, interpretation, performance and
enforcement of this Agreement shall be governed by the laws of the
State of Rhode Island. Each of the parties to this Agreement consents
to the jurisdiction of the federal and state courts in Rhode Island in
all matters relating to this Agreement.
6.5 NOTICES. All notices or other communications hereunder shall be given
in writing and shall be deemed to be duly delivered if mailed, first
class postage prepaid or if delivered by traceable courier service to
each of the parties.
6.6 EXPENSES. ODEC shall pay all costs and expenses incurred by it
(including, without limitation, the payment of all fees and expenses of
their counsel, consultants, agents and any other party engaged by
them). Markland and STI shall pay all costs and expenses incurred by
them (including, without limitation, all fees and expenses of their
counsel, consultants, agents and any other party engaged by them) in
carrying out their respective obligations under this Agreement and the
transactions contemplated herein.
6.7 APPLICABILITY OF SIGNATURES. It is expressly understood that all
signatures for ODEC, Markland and STI placed upon this Agreement shall
be construed as a signature on behalf of the respective business entity
(corporation or limited liability company) only and not representing
the signatory as an individual; Nor does any signatory for ODEC,
Markland or STI assume or accept any personal liability whatsoever as
related to this Agreement or any transaction related to such.
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6.8 CLOSING TERMS AND CONDITIONS The transaction shall be deemed to be
effective only upon payment of the $75,000 as described in Payment
terms and Conditions below. Closing will be deemed to have occurred
upon receipt of this first payment.
VII. PAYMENT TERMS AND CONDITIONS
7.1 SCHEDULE OF PAYMENTS. The following schedule for payment is agreed upon
by both parties; total payment made to ODEC for Ergo shall equal
$400,000 with no interest payments due. Of this amount $75,000 will be
due at the closing. An additional $125,000 will be due within 120 days
of closing and the remaining amount of $200,000 will be due and payable
within 12 months of closing. All payments shall be made by STI to ODEC.
IN WITNESS WHEREOF, the parties have executed this Agreement effective the
latest date shown below.
SECURITY TECHNOLOGY, INC.
By /s/ Ken Ducey, Jr. Date January 3, 2003
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Title: President/CFO
MARKLAND TECHNOLOGIES
By /s/ Ken Ducey, Jr. Date January 3, 2003
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Title: President/CFO
ODEC
By /s/ Robert Tarini Date January 3, 2003
President
EXHIBIT A
ASSETS
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A.1 DEFINITION OF ASSETS. For the purposes of this Agreement, the definition of
"Assets", as further denoted in this Exhibit shall be: (1) All the corporate
stock of Ergo Systems and (2) GSA contract GS 35F4874H and associated accounts
receivables and accounts payables in relation thereto
EXHIBIT B
PURCHASE PRICE AND TERMS
B.1 PURCHASE PRICE OF ASSETS. The purchase price of all assets as denoted in
Exhibit A shall be four hundred thousand dollars. ($400,000.00), payable in
accordance with paragraph 7.1.