SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
January 8, 1997
Date of Report (Date of earliest event reported)
DATAMARK HOLDING, INC.
(Exact name of Registrant as specified in its charter)
Delaware 000-20771 87-0422824
(State or other (Commission File (IRS Employer
jurisdiction of Number) Identification No.)
Incorporation)
488 E. Winchester St., Suite 100
Salt Lake City, Utah 84107
(Address of principal executive offices)
(Zip Code)
(801-268-2202)
(Registrant's telephone number, including area code)
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Item 2. Acquisition or Disposition of Assets.
On January 8, 1997, DataMark Holding, Inc. (the "Company") completed
the acquisition of Sisna, Inc. ("Sisna") pursuant to an Amended and Restated
Agreement and Plan of Reorganization (the "Agreement"). Sisna was not affiliated
with the Company.
Sisna, based in Salt Lake City, Utah, operates as an Internet service
provider allowing its customers access to the Internet. Based upon published
reports, Sisna believes that it has the largest subscription base of any
independent Internet service provider in the state of Utah. Through a network of
franchisees, Sisna offers Internet access in 16 states. The Company will utilize
Sisna to offer Internet access, as well as the Company's own WorldNow Online
services. Sisna will continue to operated as a wholly owned subsidiary of the
Company.
Pursuant to the Agreement, the Company issued 325,000 shares of its
common stock in exchange for all of the issued and outstanding shares of Sisna.
None of the four shareholders of Sisna (H&D Investment Company, L.C.; Martin S.
Gomez; Jeffrey A. Madison and David C. Pollei) were affiliated with the company
prior to the acquisition. The number of shares issued in the acquisition was
determined in arm's length negotiation between the Company and Sisna's
shareholders. The Company did not obtain a formal valuation or fairness opinion
for the acquisition. Of the shares issued for Sisna, 25,000 shares will be held
in escrow pending collection of Sisna's accounts receivable. The acquisition
will be accounted for as a pooling of interests.
The foregoing discussion is qualified in its entirety by reference to
the Agreement, which is filed as an exhibit.
Item 7. Financial Statements and Exhibits.
(a) The financial statements of Sisna required to be filed by Form 8-K
were not available when this report was filed. Such financial statements will be
filed as soon as they are available, which is expected to be no later than March
24, 1997.
(b) Pro forma financial information regarding the acquired business in
accordance with Article 11 of Regulation S-X was not available when this report
was filed. Such pro forma information will be filed as soon as it is available,
which is expected to be no later than March 24, 1997.
(c) The following exhibits are filed herewith:
1. Amended and Restated Agreement and Plan of Reorganization
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
DATAMARK HOLDING, INC.
Date January 22, 1997 By /s/ Chad Evans
---------------
Chad Evans,
CEO and Principal Executive Officer
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AMENDED AND RESTATED
AGREEMENT AND PLAN OF REORGANIZATION
THIS AMENDED AND RESTATED AGREEMENT AND PLAN OF REORGANIZATION (the
"Agreement") is entered into on January 8, 1997, by and among SISNA, INC., a
Utah corporation ("SISNA"); Jeffrey A. Madison, Martin S. Gomez, David C. Pollei
and H & D Investment Company, L.C., as the sole shareholders of SISNA
(collectively referred to as the "Shareholders"); DATAMARK HOLDING, INC., a
Delaware corporation ("DataMark" or "Buyer"). This Agreement supersedes in its
entirety an Agreement and Plan of Reorganization between the parties dated
December 23, 1996 which prior agreement shall be of no further force or effect.
W I T N E S S E T H:
WHEREAS, Shareholders, collectively own 100,000 common shares (the
"Shares") of the SISNA voting common stock ("Common Shares"), representing all
of the issued and outstanding shares of SISNA; and
WHEREAS, this Agreement provides for the incorporation and organization
by DataMark of a wholly-owned subsidiary under the laws of the state of Utah
("Merger Co."), and for the merger of Merger Co. with and into SISNA as the
surviving entity, and in connection therewith, the conversion of the outstanding
Common Shares of SISNA into shares of common stock of DataMark, all pursuant to
a Plan of Merger ("Plan of Merger"), in substantially the same form as that
attached hereto as Exhibit "A", all for the purpose of effecting a "tax-free"
reorganization pursuant to sections 368(a)(1)(A) and 368(a)(2)(E) of the
Internal Revenue Code of 1986, as amended.
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants contained herein, the parties hereto agree as follows:
SECTION 1. PLAN OF MERGER.
1.1. Closing. At a closing to take place at 3 o'clock p.m. on January
__, 1997, at the offices of Ballard Spahr Andrews & Ingersoll, 201 South Main
Street, Suite 1200, Salt Lake City, Utah, or at such other time or place as
shall be determined pursuant to this Agreement or shall otherwise be mutually
agreeable to the parties (the "Closing," the date thereof being referred to
herein as the "Closing Date"), subject to satisfaction of the conditions stated
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in Sections 4 and 5, the parties shall carry out the Plan of Merger and the
conversion of the Shares into the DataMark Shares (as defined below).
1.2. Formation of Merger Co. SISNA and DataMark agree that DataMark
shall cause to be organized under the laws of the state of Utah, a corporation
under the name "DataMark Merger Co.", or such other name as may be available and
acceptable to the parties hereto all of the outstanding stock of which shall be
owned by DataMark, all for the purpose and to the extent deemed necessary by
DataMark and its counsel to permit Merger Co., to execute the Plan of Merger. At
such time as Merger Co. has been organized and is, in the opinion of DataMark
and its counsel, permitted by law to execute the Plan of Merger, the board of
directors of Merger Co. shall adopt resolutions authorizing the execution and
delivery of the Plan of Merger, and approving the transactions contemplated
thereby. On adoption of such resolutions and in consideration of the execution
and delivery of the Plan of Merger by DataMark, Merger Co. shall execute and
deliver to SISNA duplicate copies of the Plan of Merger. SISNA shall survive the
merger with Merger Co., and shall become a wholly-owned subsidiary of DataMark.
1.3. The Merger. Pursuant to the Plan of Merger, Merger Co. will be
merged with and into SISNA, the separate existence of Merger Co. shall cease and
SISNA and Merger Co. shall become a single corporation named SISNA, Inc. which
shall survive the merger (the "Merger"). The Shares shall be converted into
325,000 shares of DataMark common stock, $.0001 par value (the "DataMark
Shares") as follows:
(a) On the Effective Date (as defined below) of the Merger,
each share of Merger Co. previously issued and outstanding shall be
converted into one common share of SISNA; and
(b) After the Effective Date of the Merger, each holder of
Shares identified on the Schedule of SISNA Shareholders, upon the
surrender of his or her certificates representing the Shares, together
with an investment agreement in the form attached hereto as Exhibit
"B", to the transfer agent and registrar of DataMark, shall be entitled
to receive a certificate or certificates evidencing the number of
DataMark Shares indicated on the Schedule of SISNA Shareholders. On the
Effective Date, all previously issued and outstanding common shares of
SISNA shall be canceled, and all rights in respect thereof, other than
the right to receive DataMark Shares, shall cease.
(c) Because there will be no shareholders of Merger Co. who or
which will dissent from the Merger under Utah law, SISNA, as the
surviving corporation will make no provision for paying dissenting
shareholders amounts to which they would be entitled under the
provisions of the laws of the State of Utah relating to the rights of
dissenting shareholders.
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1.4. Closing Events. At the Closing, each of the respective parties
hereto shall execute, acknowledge, and deliver (or shall cause to be executed,
acknowledged, and delivered) any and all certificates, financial statements,
schedules, agreements, resolutions, or other instruments required by this
Agreement to be so delivered at or prior to the Closing, together with such
other items as may be reasonably requested by the parties hereto and their
respective legal counsel in order to effectuate or evidence the transactions
contemplated hereby.
1.5. Effective Date. As soon as practicable following consummation of
the transactions contemplated hereby on the Closing Date, the Plan of Merger and
any other documents required by the provisions of Utah law to complete the Plan
of Merger, shall be filed with the Utah Division of Corporations and Commercial
Code of the Utah Department of Commerce. The Merger shall be effective when
Articles of Merger are filed with the Division of Corporations and Commercial
Code of the Department of Commerce of the State of Utah pursuant to the
provisions of the Utah Revised Business Corporation Act (the "Effective Date").
1.6. Additional Actions. If at any time after the Merger, SISNA, as the
surviving corporation, shall consider to be advised that any further assignments
or assurances in law or any other acts are necessary or desirable (i) to vest,
perfect, or confirm, of record or otherwise, in the surviving corporation its
rights, title, or interest in, to, or under any of the rights, properties, or
assets of Merger Co. or in connection with, the Merger, or (ii) to otherwise
carry out the purposes of this Agreement, Merger Co. and its proper officers and
directors shall be deemed to have granted to SISNA, as the surviving
corporation, an irrevocable power of attorney to execute and deliver all such
proper deeds, assignments, and assurances in law and to do all acts necessary or
proper to vest, perfect, or confirm title to and possession of such rights,
title, or interest or such properties, or assets in the surviving corporation
and otherwise to carry out the purposes of this Agreement. The proper officers
and directors of SISNA are and shall be fully authorized in the name of Merger
Co. or otherwise to take any and all such action.
1.7. Shareholder's Consent. The Shareholders hereby consent to the
Plan of Merger as described herein.
1.8. Further Assurances. The parties agree that if, at any time after
the Closing Date, any further documents shall be deemed to be necessary or
desirable to give notice of or effect to the transactions contemplated by this
Agreement, all parties will take such steps as necessary to effectuate this
Agreement.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF SISNA SHAREHOLDERS.
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SISNA and Shareholders hereby jointly and severally represent and
warrant to the best of their knowledge, to Buyer as of the date hereof as
follows:
2.1. Organization and Qualification. SISNA is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Utah and has full power and authority under the laws of the State of Utah to own
or lease its properties and to conduct its business as such properties are owned
or leased and as such business is conducted. The copies of SISNA's Articles of
Incorporation, and of SISNA's Bylaws, certified by SISNA's Secretary, and
heretofore delivered to Buyer's counsel, are complete and correct. SISNA is
qualified to do business in the State of Utah. Set forth in the Schedule of
State Operations is a list of all states in which SISNA owns property or
significant assets, maintains one or more points of presence sites or conducts
other operations.
2.2. Capitalization. (a) Authorized Shares. SISNA's authorized capital
shares consists of 50,000 voting Common Shares, of which only the Shares are
issued and outstanding on the date hereof.
(b) Outstanding Shares. All outstanding Common Shares are held
of record by the Shareholders. None of the Shares have been issued in violation
of any federal or state law. Except for a warrant issued to Utah Technology
Finance Corporation ("UTFC"), which UTFC has agreed to surrender upon the
payment of $2,000 and complete satisfaction of Sisna's obligations to UTFC,
there are no outstanding options, warrants, rights or agreements of any kind for
the issuance or sale of, or outstanding securities convertible into, any
additional shares of SISNA. All Shares are and at Closing the Shares, will be,
duly authorized, validly issued, fully paid, non-assessable and free of
pre-emptive rights. All Shares are, and the Shares will be, free and clear of
any and all liens, encumbrances, charges or claims under Article 8 of the
Uniform Commercial Code or otherwise.
2.3. Subsidiaries and Partnerships. Except as disclosed in the
Franchise Agreements (as defined below), SISNA has no subsidiaries and is not a
partner or participant in any partnership or joint venture of any kind.
2.4. Financial Statements. Buyer has received the compiled balance
sheet and income statement of SISNA as of September 30, 1996 and November 30,
1996. Said financial statements were compiled by SISNA's accountant. All
financial statements are herein collectively referred to as the "Financial
Statements." Said Financial Statements have been prepared in accordance with
generally accepted accounting principles applied consistently during the periods
covered thereby, and said Financial Statements present fairly the financial
condition of SISNA as indicated at the date of said Financial Statements.
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2.5. Net Worth. As of the Closing Date the net worth of SISNA will not
be materially less than the net worth reflected on the November 30, 1996
Financial Statements, except to the extent reduced in the ordinary course of
business or as otherwise provided herein.
2.6. Title to Properties; Liens; Condition of Properties. SISNA owns no
real property at the date hereof and at no time has owned any real property.
SISNA is not currently, and at no time has been, a party to any leases for real
or personal property except as set forth in the Schedule of Leases of Real
Property and the Schedule of Machinery, Equipment and Equipment Leases attached
hereto. SISNA owns no machinery or equipment with an individual value in excess
of $10,000 or an aggregate value in excess of $50,000, except as set forth on
the Schedule of Machinery and Equipment attached hereto. SISNA has good and
marketable title to all of the personal property owned by it and all of its
leases, if any, are valid and subsisting and no default by SISNA exists under
any such lease, except as disclosed on the Schedule of Leases of Real Property.
None of the property or assets of SISNA is subject to any mortgage, pledge,
lien, conditional sale agreement, security interest, encumbrance or other charge
except as specifically disclosed in the Financial Statements or Schedule of
Liens and Encumbrances attached hereto.
All machinery and equipment owned or leased by SISNA is in good repair,
has been properly maintained, and such machinery and equipment is in good
working order, subject to normal wear and tear.
2.7. Taxes. As used in this Section 2.7, SISNA shall include all
predecessors in interest to SISNA and all affiliates.
(a) SISNA has filed returns required to be filed by it
(collectively, the "Returns") with respect to any and all taxes, penalties,
interest and assessments of any type by any U.S. federal, state or other taxing
authority or any foreign nation or any political subdivision thereof
(collectively, "Taxes"). With respect to the Returns, there are no agreements,
waivers or other arrangements providing for the extension of time for the
assessment of any Tax or Tax delinquency. SISNA (A) has not been a member of an
"affiliated group" filing a consolidated federal income tax return (other than a
group the common parent of which was SISNA) and (B) has no liability for the
Taxes of any person under Treas. Reg. ss.1.1502-6 (or any similar provision of
state, local, or foreign law), as a transferee or successor, by contract, or
otherwise. The information shown on the Returns made available to DataMark is
true, accurate and complete, and there is no basis upon which any assessment for
a material amount of additional Taxes could be made. All positions taken in the
Returns that could give rise to a substantial understatement penalty within the
meaning of the Internal Revenue Code of 1986 (the "Code") Section 6662 have been
disclosed therein.
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(b) SISNA has properly withheld or collected all Taxes
required by law to be withheld or collected from amounts payable to other
persons and remitted such withheld or collected Taxes to the appropriate taxing
authority, agency or body.
(c) SISNA is not (nor has it ever been) a party to any
agreement to share federal, state or local income tax liability with any other
corporation with which it has or will file a consolidated tax return for periods
ending on or prior to the date hereof.
(d) No election under Section 336(e) or Section 338 of the
Code has been made with respect to SISNA.
(e) No consent pursuant to Section 341(f) of the Code is in
effect that relates to SISNA.
(f) SISNA has not entered into any compensatory agreements
with respect to the performance of services for which payment thereunder would
result in a nondeductible expense to SISNA pursuant to Section 280G of the Code.
(g) SISNA has not agreed, nor is it required, to make any
adjustment under Section 481(a) of the Code by reason of a change in accounting
method or otherwise.
(j) Except as shown on the Schedule of Tax Liens, SISNA has
not had and does not currently have any tax liens filed against it. All liens
listed on the Schedule of Tax Liens have been removed and satisfied in full as
indicated on the Schedule of Tax Liens.
2.8. Absence of Undisclosed Liabilities. As of the date of the
Financial Statements, SISNA had, and as of the date hereof SISNA has, no
liabilities in excess of $10,000 in the aggregate, except liabilities reflected
in the Financial Statements or on Exhibits and Schedules attached hereto.
2.9. Accounts Receivable. The accounts receivable of SISNA as
identified in the November 30, 1996 Financial Statements are valid accounts
receivable and there are no accounts in excess of $1,000 that SISNA has reason
to believe will not be collected. At the Closing, the Shareholders shall deposit
an aggregate of 25,000 of the DataMark Shares in an escrow account with VanCott,
Bagley, Cornwall & McCarthy pursuant to the Escrow Agreement attached hereto as
Exhibit H. DataMark shall promptly use its best efforts to collect all accounts
receivable to SISNA in the ordinary course of business in consultation with
Doris Smith and Mike Bard. DataMark shall be entitled to receive from the escrow
account and cancel one escrowed DataMark Share for every $11.50 of accounts
receivable not collected within 90 days after the Closing and all remaining
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shares shall promptly be released to the Shareholders following 90 days after
the Closing. SISNA has no material accounts receivable or loans receivable from
any person, firm or corporation which is affiliated with it or from any of its
directors, officers, employees or stockholders other than as set forth in the
Financial Statements.
2.10. Inventories. The inventories of SISNA reflected on the Financial
Statements or existing at the date hereof reflect SISNA's normal inventory
valuation policies and were determined in accordance with generally accepted
accounting principles, practices and methods consistently applied. Not more than
twelve percent (12%) by value of the inventory consists of obsolete or other
products not currently being sold by SISNA. Since the date of the Financial
Statements, no inventory items have been sold or disposed of except through
sales in the ordinary course of business.
2.11. Absence of Certain Changes. Except as may be disclosed to Buyer
in writing prior to the Closing, since the Financial Statements, there has not
been:
(a) Any materially adverse change in the financial
condition, properties, assets, liabilities, business or operations of SISNA;
(b) Any contingent liabilities in excess of an aggregate
of $5,000 incurred by SISNA as guarantor or otherwise with respect to the
obligations of others;
(c) Any encumbrance or lien placed on any of SISNA's
properties which remains in existence, except as disclosed in Schedule of Liens
and Encumbrances;
(d) Any obligation or liability in excess of an aggregate
of $10,000 incurred by SISNA other than obligations and liabilities incurred in
the ordinary course of business, except in connection with equipment for the
benefit of Buyer or otherwise disclosed pursuant to the terms of this Agreement;
(e) Any purchase, sale, or other disposition, or any
agreement or other arrangement for the purchase, sale, or other disposition, of
any material part of SISNA's properties or assets other than in the ordinary
course of business;
(f) Any other material transaction entered into by SISNA
other than transactions in the ordinary course of business;
(g) Any damage, destruction, or loss, whether or not
covered by insurance, which materially adversely affects the SISNA's properties,
assets, or business;
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(h) Any declaration, setting aside or payment of any dividend
on, or the making of any other distribution in respect of SISNA's capital shares
or any direct or indirect redemption, purchase or other acquisition by SISNA of
its own capital shares, or any issuance of SISNA's capital shares, or options,
warrants, or rights to acquire SISNA's capital shares, provided that the
retained earnings of SISNA may be distributed to the Shareholders prior to
Closing;
(i) Any labor trouble or claim of unfair labor practices
involving SISNA; any change in the employment contracts of or compensation
payable or to become payable by SISNA to any of its officers, employees, or
agents, or any bonus payment or arrangement made to or with any of such
officers, employees, or agents except in the ordinary course of business;
(j) Any change with respect to SISNA's management or
supervisory personnel;
(k) Any payment or discharge of a material lien or liability
of SISNA which was not shown on the Financial Statements or incurred in the
ordinary course of business thereafter, except for the payment of tax liens;
(l) Any obligation or liability incurred by SISNA to any bank,
to any of SISNA or SISNA's officers, directors or shareholders, or to any other
individual; or any loans or advances made by SISNA to any of its officers,
directors, or shareholders, except for normal compensation and expense
allowances payable to officers, directors and partners pursuant to their
employment agreement;
(m) Any capital expenditure by SISNA in excess of $2,000 for
any one item without the consent of Buyer except in the ordinary course of
business;
(n) Any contracts entered into by SISNA which obligate SISNA
for more than $2,000 in the aggregate without the consent of Buyer except in the
ordinary course of business;
(o) Any recapitalization, reorganization, amendment to the
Bylaws or Articles of Incorporation of SISNA.
2.12. Operations. Except to the extent that officers and employees of
Sisna have devoted efforts for the benefit of DataMark, between the date of the
Financial Statements and the date hereof, SISNA has conducted its business only
in the ordinary course, except as disclosed in this Agreement and Schedules and
Exhibits hereto.
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2.13. Banking Relations. All of the arrangements which SISNA has with
any banking institutions are completely and accurately described in the Schedule
of Banking Arrangements indicating with respect to each of such arrangements the
type of arrangement maintained (such as checking account, borrowing
arrangements, safe deposit box, etc.) and the person or persons authorized to
act on behalf of SISNA in respect thereof.
2.14. Patents, Trade Names and Trademarks. Except as set forth in the
Schedule of Patents, Trade Names and Trademarks, SISNA neither owns nor licenses
any material patent, patent application, registered copyright, registered
trademark or trademark application. All trademarks and trade names utilized by
SISNA are listed in the Schedule of Patents, Trade Names and Trademarks, other
than common law marks. Except as set forth in such Schedule, (i) there are no
written claims or demands of any other person pertaining to any patent, patent
application, registered copyright, registered trademark or trademark
application, and no proceedings have been instituted, or are pending or
threatened in writing, which challenge SISNA's rights in respect thereof; (ii)
no claim has been made and no proceeding has been filed or is threatened to be
filed charging SISNA with infringement of any adversely held patent, trade name,
trademark or copyright; and (iii) there does not exist (A) any unexpired patent
with claims which are or would be infringed by products of SISNA or by
apparatus, methods or designs employed by it in manufacturing such products or
(B) any patent or application therefor or invention which would materially
adversely affect SISNA's ability to manufacture, use or sell any such product,
apparatus, method or design.
2.15. Trade Secrets and Customer Lists. SISNA has the right to use,
free and clear of any claims or rights of others, all trade secrets, customer
lists, secret processes and know-how (if any) required for or used in the supply
or marketing of all products and services either being sold, or under
development by SISNA, including products and services licensed from others.
SISNA is not in any way making an unlawful or wrongful use of any confidential
information, know-how, or trade secrets of any third party, including without
limitation any present or past employee of SISNA.
2.16. Contracts. Except for contracts, commitments, plans, agreements
and licenses described in the Schedule of Contracts and Commitments attached
hereto or as otherwise disclosed herein, or as may be amended prior to the
Closing, SISNA is not a party to or subject to:
(a) any plan or contract providing for bonuses, pensions,
options, stock purchases, deferred compensation, retirement payments, profit
sharing, collective bargaining or the like, or any contract or agreement with
any labor union;
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(b) any employment contract or contract for services not
terminable within 31 days by and without penalty or further liability to SISNA;
(c) other than purchase orders entered into in the ordinary
course of business, any contract or agreement for the purchase of any commodity,
material or equipment which in the aggregate exceed $2,000;
(d) any contract or agreement for the sale of any commodity,
material, equipment or service, other than contracts with customers entered into
in the ordinary course of business;
(e) any contract or agreement, other than contracts for the
purchase or sale of commodities, material, equipment or services in the ordinary
course of business, entered into after the date of the Financial Statements;
(f) any contract or agreement providing for periodic minimum
purchases of a particular product from a supplier (other than contracts entered
into in the ordinary course of business and which can be terminated on not more
than thirty days notice), or for the purchase of all or substantially all of its
requirements of a particular product from a supplier;
(g) any contract or agreement which by its terms does not
terminate or is not terminable without penalty by SISNA and any successor or
assignee of SISNA on thirty days' notice other than purchase orders and sales
orders entered into in the ordinary course of business for goods to be delivered
within 60 days;
(h) any contract with any sales agent, or distributor of
products or services of SISNA;
(i) any contract containing covenants limiting SISNA's freedom
to compete in any line of business or with any person or entity, except as
provided in the Franchise Agreements (as hereinafter defined);
(j) any contract or agreement for the purchase of any fixed
asset, whether or not such purchase is in the ordinary course of business;
(k) any material license agreement (as licensor or licensee);
(l) any material franchise agreement (as franchisor or
franchisee); or
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(m) any contract or agreement with any present or former
officer, director or shareholder of SISNA or with any persons or organization
controlled by or affiliated with any of them.
2.17. Defaults. Except as disclosed in the Schedule of Litigation and
Claims under Section 2.18, SISNA and its affiliates are not in default under any
contracts, commitments, plans, agreements or licenses where such default would
have a material adverse effect upon the business or properties of SISNA (a
"default" being defined for purposes hereof as an actual default or any set of
facts which would, upon receipt of notice or passage of time, constitute a
default).
2.18. Litigation. Except as disclosed in the Schedule of Litigation
and Claims, there is no litigation pending or written threat of litigation
against SISNA, and SISNA is not engaged as a party in any litigation.
2.19. Compliance with Laws. Except as disclosed in the Schedule of
Litigation and Claims or otherwise herein, SISNA is not violating any laws and
regulations which apply to the conduct of its business, where such violation
would cause a material adverse effect upon the business or properties of SISNA.
Except as disclosed in the Schedule of Litigation and Claims or otherwise
herein, since the date of incorporation, there has never been any material
citation, fine or penalty imposed or asserted against SISNA under any law or
regulation relating to employment, occupational safety, zoning, environmental,
tax, export, import, manufacturing, licensing or franchising matters.
2.20. Insurance. SISNA's assets are insured to the extent disclosed
in the Schedule of Insurance. SISNA's workmen's compensation insurance complies
with applicable statutory requirements as to the amount of such coverage. SISNA
carries insurance on the lives of Henry J. Smith, Jr., and Doris H. Smith which
policies will be assigned, at no cost, to the respective insureds prior to the
Closing.
2.21. Warranty or Other Claims. Except as otherwise disclosed herein,
there are no existing or threatened written claims against SISNA for services or
merchandise which are defective or fail to meet any service or product
warranties that would have an adverse effect upon SISNA's business in the excess
of $2,000 individually and $10,000 in the aggregate. No claim has been asserted
and is outstanding against SISNA for renegotiation or price redetermination of
any business transaction except as disclosed on the Schedule of Litigation and
Claims or otherwise herein.
2.22. Powers of Attorney. SISNA has no outstanding powers of attorney
other than as disclosed herein.
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2.23. Finder's Fee. SISNA has not incurred nor will it become liable
for any broker's commission or finder's fee relating to or in connection with
the transactions contemplated by this Agreement.
2.24. Permits. SISNA holds all licenses, permits and franchises which
are required to permit them to conduct their business in all jurisdictions in
which it conducts business except as otherwise disclosed herein.
2.25. Minute Books. SISNA's minute books heretofore made available to
Buyer accurately record all material corporate action taken by their
shareholders and board of directors from the date of organization of SISNA
through the date hereof.
2.26. Transactions with Interested Persons. Except as set forth
herein, no shareholder nor any officer or director of SISNA owns on an
individual or joint basis, any material interest in, or serves as an officer
or director of, any customer, competitor or supplier of SISNA or any
organization which has a material contract with SISNA.
2.27. Employees. Each management level employee of SISNA and his or
her current rate of compensation is listed on the Schedule of Employee
Compensation.
2.28. Disclosure of Potential Adverse Developments. SISNA has reported
to Buyer, or will report prior to the Closing, in writing, any facts of which it
has knowledge that may cause a material adverse change in the business of SISNA
(other than factors affecting industry generally), such as (by way of example,
not of limitation) intentions of key employees to resign or leave SISNA, or any
other material adverse change occurring on or after the date of the Financial
Statements to the date of Closing.
2.29. Authority of SISNA. SISNA has the corporate power to enter into
this Agreement and to carry out the transactions contemplated hereby. The
execution, delivery and performance of this Agreement by SISNA has been duly and
validly authorized and approved by all necessary corporate action on the part of
SISNA and this Agreement is the legal and binding obligation of SISNA. The
entering into of this Agreement by SISNA does not, and the consummation by SISNA
of the transactions contemplated hereby will not, violate the provisions of (i)
any applicable laws of the United States or any other state or jurisdiction in
which SISNA does business, (ii) the Articles of Incorporation or By-laws of
SISNA or (iii) any judgment or decree applicable to SISNA. No default or breach
will occur in any material respect by virtue of the consummation of the
transactions contemplated herein under any material contract, agreement,
indenture or other instrument applicable to SISNA.
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2.30. Authority of Shareholders. Each Shareholder has all rights,
title, and interest in the Shares held by such Shareholder and has the right to
exchange the Shares free of all encumbrances in the transaction contemplated
herein.
2.31. Erisa Compliance. SISNA maintains no employee benefit plans
within the meaning of ERISA.
2.32. Approval and Consents. Except as set forth herein, no consents
or approvals of third parties are required for the consummation of the
transaction contemplated by this Agreement.
2.33. Franchise Law Compliance. Except as indicated on the Schedule of
Franchises, SISNA has complied in all respects with all applicable franchise
laws or other laws regulating the sale of franchises, including all requirements
as to disclosure to be given to potential franchisees, and has not received any
notice of deficiency or request for additional information from any state,
federal of local government agency or unit. All franchises granted and all
franchise registrations are listed on the Schedule of Franchises. All such
franchises and registrations are in full force and effect. All agreements with
franchisees and all Uniform Franchise Offering Circulars used are listed on the
Schedule of Franchises (the "Franchise Agreement").
2.34. Software Licenses. SISNA uses no software other than the software
listed on the Schedule of Software Licenses. SISNA has all licenses needed to
use the software used by SISNA and has the right to distribute the software it
distributes to its franchisees and users. The use and distribution by SISNA of
the software used and distributed does not infringe on any rights of third
parties and is not impaired by the rights of any third parties.
2.35. Professional Fees. As of the date of Closing, SISNA shall have no
more than $22,000 in accrued and unpaid accounting and legal fees and expenses
which shall not be assumed by the Shareholders.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF BUYER.
Buyer hereby represents and warrants to the best of its knowledge to
SISNA as follows:
3.1. Organization and Qualification. DataMark is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has full power and authority under the laws of the State of Utah to
own or lease its properties and to conduct its business as such properties are
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<PAGE>
owned or leased and as such business is conducted. The copies of DataMark's
Certificate of Incorporation as amended to date, and of Bylaws as amended to
date as disclosed in its SEC filings are complete and correct.
3.2. Securities and Exchange Commission Filings. Copies of filings of
DataMark made with the Securities and Exchange Commission furnished to the
Shareholders by DataMark are true and correct in all material respects. There
has been no material adverse change in the condition of DataMark (financial or
otherwise) since the filing of the Annual Report of DataMark on Form 10-K for
the year ended June 30, 1996 (the "Form 10-K") and the Quarterly Report on Form
10-Q for the quarter ended September 30, 1996 (the "Form 10-Q").
3.3. Compliance with Laws. Except as disclosed in the Form 10-K or
10-Q, DataMark is not violating any laws and regulations which apply to the
conduct of its business, where such violation would cause a material adverse
effect upon the business or properties of SISNA. During the three years
immediately preceding the date hereof, there has never been any material
citation, fine or penalty imposed or asserted against SISNA under any law or
regulation relating to employment, occupational safety, zoning, environmental,
tax, export, import, manufacturing, licensing or franchising matters. DataMark
is in compliance, in all material respects, with all applicable state and
federal securities laws.
3.4. Absence of Certain Changes. Except as may be disclosed to SISNA
in writing prior to the Closing, since the Form 10-Q, there has not been any
materially adverse change in the financial condition, properties, assets,
liabilities, business or operations of DataMark.
3.5. Finder's Fee. DataMark has not incurred nor will it become liable
for any broker's commission or finder's fee relating to or in connection with
the transactions contemplated by this Agreement.
3.6. Authority of Buyer. Buyer has the corporate power to enter into
this Agreement and to carry out the transactions contemplated hereby. The
execution, delivery and performance of this Agreement by Buyer have been duly
and validly authorized and approved by all necessary corporate action on the
part of Buyer, and this Agreement is the legal and binding obligation of Buyer.
The entering into of this Agreement by Buyer does not, and the consummation by
Buyer of the transactions contemplated hereby will not, violate the provisions
of (i) any applicable laws of any state or jurisdiction in which Buyer does
business, (ii) the Articles of Incorporation or By-laws of Buyer or (iii) any
judgment or decree applicable to Buyer. No default or breach will occur in any
material respect by virtue of the consummation of the transactions contemplated
herein under any material contract, agreement, indenture or other instrument
applicable to Buyer.
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<PAGE>
3.7. The Software Protection Agreement and letter to DataMark regarding
proprietary information being required of the Shareholders and other employees
of SISNA who will continue to be employees of SISNA as provided to in section
4.11, below, have been executed in substantially similar form by all employees
of Datamark and its affiliates.
SECTION 4. CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS.
4.1. Conditions. The obligation of Buyer to consummate this Agreement
and the transactions contemplated hereby is subject to the fulfillment, prior to
or at the Closing, of the following conditions precedent.
4.2. Opinion of Counsel. Buyer shall have received a legal opinion,
substantially in the form attached hereto as Exhibit C.
4.3. Approval of Changes. In the event that any Schedule referred to
herein is either first delivered to Buyer after the date hereof, or is revised
prior to Closing to reflect material changes in the information contained
therein, then Buyer shall have approved such new or revised Schedule, which
approval shall not be unreasonably withheld.
4.4. Representations, Warranties and Covenants. Each of the
representations and warranties of SISNA and Shareholders in Section 2 shall
remain true and correct at the Closing Date as fully as if made on the Closing
Date.
4.5. Delivery of Documents. SISNA shall have made available for
inspection and copying by Buyer and its counsel, true and correct copies of all
documents referred to in Section 2 hereof or in the Schedules referred to
therein.
4.6. Investment Agreements. Each of the Shareholders will have
executed and delivered an Investment Agreement, in the form of Exhibit B, and
certificates representing the Shares owned by each Shareholder duly transferred
to DataMark.
4.7. Closing Date. The Closing shall have occurred on or before
January __, 1997 unless extended by the mutual agreement of the parties.
4.8. Due Diligence. DataMark and its advisors shall have been
provided access to all books, facilities and records of SISNA and shall be
satisfied in its sole discretion with the prospects and business of SISNA.
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<PAGE>
4.9. Directors of SISNA. The current directors of SISNA shall have
resigned and been replaced by the designees of DataMark, except that Henry J.
Smith, Jr., shall be appointed as a director of SISNA and shall remain a
director as long as he is employed by SISNA.
4.10. Employment Agreement. Each of Henry J. Smith, Jr.; David C.
Pollei; Jeffrey A. Madison and Martin S. Gomez shall have executed and delivered
an Employment Agreement in the form set forth in Exhibit D, E, F and G
respectively. These persons and all other employees of SISNA who remain
employees of SISNA shall have executed and delivered to DataMark a letter
regarding Proprietary Information and Software Protection Agreement in the form
required by DataMark and its affiliates of all their employees.
4.11. Escrow Agreement. The Shareholders shall have executed and
delivered the Escrow Agreement in the form set forth in Exhibit H.
SECTION 5. CONDITIONS PRECEDENT TO SISNA'S OR
SHAREHOLDERS' OBLIGATIONS.
5.1. Conditions. Shareholders's obligations to consummate this
Agreement and the transactions contemplated hereby are subject to the
fulfillment, prior to or at the Closing, of the following conditions precedent.
5.2. Representations and Warranties. Each of the representations
and warranties of Buyer in Section 3 shall remain true and correct at the
Closing Date as fully as if made on the Closing Date.
5.3. Closing Date. The Closing shall have occurred on or before
January __, 1997 unless extended by the mutual agreement of the parties.
5.4. Employment Agreement. DataMark shall have executed anddelivered to each of
Henry J. Smith, Jr.; David C. Pollei; Jeffrey A. Madison and Martin S. Gomez an
Employment Agreement in the form set forth in Exhibits D, E, F and G
respectively.
5.5. Anti-Dilution Adjustment. If, between the date of this Agreement
and the Closing, the outstanding shares of DataMark common stock shall have been
changed, into a different number of shares or a different class by reason of a
new reclassification, split up, combination, exchange of shares or a
readjustment, or a stock dividend thereon shall be declared with a record date
within said period, adjustments shall be made to the number of DataMark Shares
as appropriate.
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<PAGE>
SECTION 6. RIGHTS AND OBLIGATIONS SUBSEQUENT TO
CLOSING; REMEDIES FOR DEFAULT PRIOR TO CLOSING.
6.1. Survival of Representations and Warranties. All representations,
warranties, agreements, covenants and obligations herein or in any schedule,
certificate or financial statement delivered by either party incident to the
transactions contemplated hereby are material, shall be deemed to have been
relied upon by the other party and shall survive the execution hereof for a
period of eighteen (18) months from the date hereof regardless of any
investigation and shall not merge in the performance of any obligation by any
party hereto.
6.2. Indemnification.
(a) Parties.
(i) Each party ("Indemnifying Party"), at their
own cost and expense, shall protect, defend, indemnify and hold harmless all
other parties ("Indemnified Party") after the Closing Date, from and against any
an all losses, damages (including reasonable attorneys' or accountants' fees
incurred in defending or prosecuting any claim for any such losses, damages,
costs or expenses), costs and expenses resulting from breach of any covenants,
warranties or post closing obligations or the inaccuracy of any representation
made by the Indemnifying Party in this Agreement or the Schedules hereto. In
addition, SISNA and the shareholders shall indemnify and hold harmless DataMark
against losses, damages, costs and expenses actually incurred by DataMark from
failure of SISNA to have qualified to do business or register its franchise
offering documents in states in which SISNA did business prior to Closing. As to
any breach of any covenant, warranty or post closing obligations or the
inaccuracy of any representation made by Indemnifying Party jointly and
severally, indemnification shall be sought against all Indemnifying Parties but,
to the extent any Indemnifying Party fails to timely pay his or its share of
such obligation, the remaining Indemnifying Parties shall be jointly and
severally liable.
(ii) Notwithstanding the foregoing, the
Indemnifying Party shall not be liable to the Indemnified Party for any
misrepresentation or breaches of warranty to the extent the aggregate amount of
the losses, liabilities, damages and expenses of Indemnified Party based thereon
or resulting therefrom is recoverable under a insurance policy obtained by SISNA
or, when aggregated with all other losses, liabilities, damages and expenses of
Indemnified Party, is less than $10,000.
(b) Indemnification Procedure for Claims.
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<PAGE>
(i) Notice of Claim. If any party hereto shall
claim indemnification hereunder arising from any claim or demand of any third
party, or as the result of the occurrence of any event which may give rise to a
claim for indemnification under this Section 6, the Indemnified Party shall
promptly notify in writing the Indemnifying Party of the basis for such third
party claim or the occurrence of any event, as the case may be, setting forth in
reasonable detail the nature of the claim or event, to the extent known by the
Indemnified Party and, with respect to third party claims, advising the
Indemnifying Party whether the Indemnified Party intends to contest such claim.
(ii) Cooperation. If the Indemnified Party
determines not to contest such third party claim, the Indemnifying Party shall
have the right, and at its own expense, to contest and defend against such
claim, and the Indemnified Party shall make available to the Indemnifying Party,
its attorneys and accountants, at all reasonable times during normal business
hours, all books and records of the Indemnified Party relating to such claim. If
the Indemnified Party determines to contest such claim, the Indemnifying Party
shall have the right to be represented, at its own expense, by advisory counsel
and accountants, its preparation and the participation of such advisors to be
subject to the direction of the Indemnified Party. The party contesting any such
claim shall be furnished all reasonable assistance in connection therewith by
the other party. If the Indemnifying Party fails to defend, settle or pay any
such third party claim within thirty (30) days after the Indemnified Party has
mailed written notice to the Indemnifying Party advising the Indemnifying Party
that the Indemnified Party does not intend to contest such claim, then the
Indemnified Party may take any and all necessary action to dispose of such
claim, including without limitation, the settlement or full payment thereof upon
such terms as it shall deem appropriate, in its sole discretion.
(iii) Settlements. In the event that the
Indemnified Party desires to settle any such third party claim (whether or not
contested by the Indemnifying Party), the Indemnified Party shall advise the
Indemnifying Party of the amount it proposes to pay in settlement thereof (the
"Proposed Settlement"). If such Proposed Settlement is unsatisfactory to the
Indemnifying Party, the Indemnifying Party shall have the right, at its expense,
to contest such claim in accordance with the procedures set forth in Section 6.
In the event the Indemnified Party is threatened with attachment, lien, levy or
other encumbrance to any of its assets as a result of the Indemnifying Party's
decision to contest any such claim, the Indemnifying Party shall furnish to the
Indemnified Party security reasonably acceptable to the Indemnified Party,
whether by indemnity bond or otherwise, as a condition to its right to defend
against such claim. If the Indemnifying Party does not deliver such security
within ten (10) days after the Indemnifying Party has been advised of the
Proposed Settlement, the Indemnified Party may offer the Proposed Settlement to
the third party making such claim. If the Proposed Settlement is not accepted by
the party making such claim, any new Proposed Settlement figure which the
Indemnified Party may wish to present to the party making such claim shall first
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<PAGE>
be presented to the Indemnifying Party, which shall have the right, subject to
the conditions hereinabove set forth in this Section 6, to contest such claim.
In all such events, the Indemnifying Party shall indemnify the Indemnified Party
and hold it harmless from and against any and all costs of defense, payment of
settlement, including attorneys' and accountants' fees incurred in connection
therewith. Notwithstanding the above, the Indemnified Party shall at all times
be entitled to defend against any litigation brought against the Indemnified
Party.
(iv) Payment. At the time of any payment by the
Indemnified Party to any third party because of a breach of any covenant,
warranty or post closing obligation or the inaccuracy of any representation by
the Indemnifying Party (subject to the Indemnified Party's compliance with the
notice provisions of this Section 6, or at the time the amount of any liability
on the part of the Indemnified Party which is subject to indemnification by the
Indemnifying Party under this Section 6 is determined (which, in the case of
payments to third parties shall be the date of such payment), the Indemnifying
Party shall forthwith, upon notice from the Indemnified Party, pay to the
Indemnified Party the amount of the indemnity claim. If the indemnity claim is
not paid forthwith, then the Indemnified Party, at its option, may take legal
action against the Indemnifying Party for reimbursement of such indemnity claim.
For the purposes hereof, the indemnity claim shall include the amount so paid
(or determined to be owing) by the Indemnified Party together with costs and
attorneys' fees and interest on the foregoing items at a rate which is equal to
the prime or base commercial rate as announced from time to time by the largest
bank, measured in terms of assets, in the State of Utah from the date of the
indemnity claim until the indemnity claim shall be paid in full.
6.3. Additional Covenants of Shareholders.
(a) Agreement Not to Compete. Each Shareholder covenants and
agrees that, for a period of three years after the last to occur of (i) the date
of this Agreement or (ii) the termination of his employment with SISNA, he or
she will not directly or indirectly (whether as employee, director, owner, 5% or
greater stockholder, consultant, partner (limited or general or otherwise)
engage in or have any interest in, any business that directly competes with any
business in which DataMark or any of its subsidiaries is engaged currently or at
the time during the term of Shareholder's employment with DataMark, SISNA or an
affiliate thereof; provided, however, that nothing herein will prevent any
Shareholder from owning up to 5% of the outstanding stock of a corporation, so
long as the Shareholder does not participate in the business of such corporation
other than as a passive investor. DataMark may, in its discretion, give the
Shareholder written approval(s) to personally engage in any activity or render
any services referred to in this paragraph if DataMark secures written
assurances (satisfactory to DataMark and its counsel) from the Shareholder and
any prospective employer(s) of the Shareholder that the integrity of DataMark or
any of its subsidiaries' confidential or proprietary information will not in any
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<PAGE>
way be jeopardized by such activities, provided that the burden of so
establishing the foregoing to the satisfaction of DataMark and its counsel shall
be upon the Shareholder and prospective Shareholder(s) ("Permitted Activities").
(b) Agreement Not to Solicit Employees. Each Shareholder
covenants and agrees that, for a period of three years after the date of this
Agreement, he or it will not, directly or indirectly, (i) solicit, induce or
hire away, or assist any third party in soliciting, diverting or hiring away,
any employee of DataMark or any of its subsidiaries, whether or not the
employee's employment is pursuant to a written agreement and whether or not such
employment is for a specified term or is at will, or (ii) induce or attempt to
induce any customer, supplier, dealer, lender, licensee, consultant or other
business relation of DataMark or any of its subsidiaries to cease doing business
with DataMark or any of its subsidiaries.
(c) Ownership, Non-Disclosure and Non-Use of Confidential or
Proprietary Information. Each Shareholder covenants and agrees that to the
extent such information is not otherwise in the public domain other than as a
result of actions by any Shareholder, he or it will not, directly or indirectly:
(i) give to any person not authorized by DataMark to
receive it or use it, any of SISNA's proprietary data or information
whether relating to products, ideas, designs, processes, research,
marketing customers, management know-how, or otherwise; or
(ii) give to any person not authorized by DataMark to
receive it any specifications, reports, or technical information or the
like owned by SISNA; or
(iii) give to any person not authorized by DataMark
to receive it any information that is not generally known outside SISNA
or that is designated by SISNA as limited, private, or confidential.
(f) Independent Agreements; Survival. Each Shareholder
acknowledges that the covenants made in this Section 6.3 shall be construed as
agreements independent of any other provision of this Agreement, and shall
survive the termination of this Agreement. These covenants are made as partial
consideration for the DataMark Shares being delivered to the Shareholders
pursuant to the Plan of Merger.
6.4. Registration Rights. DataMark agrees to grant the Shareholders
"piggyback" registration rights to register up to 100,000 of the DataMark Shares
(the "Registerable Shares") for resale under the Securities Act. If DataMark
determines to file a registration statement to which the registration rights
apply, it shall so notify the undersigned and allow the undersigned fourteen
(14) days to elect, in writing, to include the Registrable Shares therein. Such
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notice does not obligate DataMark to file a registration statement. Inclusion of
the Registrable Shares in any registration is subject to the reasonable approval
of any underwriter of the offering being registered. In a registration pursuant
to this Section 6.4 involving an underwritten offering of the securities so
being registered, whether or not for sale for the account of the Company, by or
through one or more underwriters of recognized standing, if the managing
underwriter of such underwritten offering shall inform the Company and the
holders of the Registrable Securities requesting registration in such offering
by letter of its belief that the number or type of securities to be included in
such registration would materially adversely affect its ability to effect such
offering, then the Company will be required to include in such registration only
that number and type of Registrable Securities which it is so advised can be
sold in such offering, drawn pro rata from the holders of the Registrable
Securities requesting such registration on the basis of the percentage of the
Registrable Securities held by the holders of Registrable Securities which have
requested that such securities be included. If the offering is being
underwritten, the undersigned will enter into an underwriting agreement with
such underwriter and will pay underwriting discounts, commissions and expenses
with respect to its sales, as well as any taxes on such sales and the cost of
any separate counsel retained by the undersigned. The piggyback registration
rights described herein shall not apply with respect to registrations on
inappropriate forms, such as Form S-8 or S-4. The registration rights shall not
apply if DataMark concludes that Rule 144(k) of the Securities Act of 1933, or
successor provisions, is available to the Registrable Shares.
6.5. SISNA Audit. DataMark will be required to file audited and
unaudited financial statements of SISNA within 60 days after reporting the
consummation of the Merger in accordance with SEC rules. The SISNA Shareholders
agree to promptly take such reasonable steps as may be requested by DataMark or
its auditors to facilitate the timely preparation and audit of such financial
statements, including the execution of customary representation letters.
SECTION 7. MISCELLANEOUS.
7.1. Fees and Expenses. Each of the parties to this Agreement will
bear its own expenses in connection with the negotiation and consummation of the
transactions contemplated by this Agreement.
7.2. Law Governing. This Agreement shall be construed under and
governed by the laws of the State of Utah. Venue for any dispute under this
Agreement shall be a court in Salt Lake City, Utah.
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7.3. Notices. All notices, requests, demands and other
communications hereunder shall be deemed to have been duly given if delivered,
telegraphed or mailed by certified or registered mail:
To: SISNA: SISNA, Inc.
1405 East 2100 South
Salt Lake City, Utah 84105
Attention:
To: DataMark: DataMark Holding, Inc.
488 E. Winchester Street, Suite 100
Salt Lake City, Utah 84107
Attention:
To: Shareholders: H & D Investment Company, L.C.
1405 East 2100 South
Salt Lake City, Utah 84105
Martin S. Gomez
5730 South 900 East
Salt Lake City, Utah 84121
Jeffrey A. Madison
1180 E. Bonita Drive
Salt Lake City, Utah 84106
David C. Pollei
40 South 900 East #6E
Salt Lake City, Utah 84102
or to such other address or which any party may notify the other parties as
provided above.
7.4. Entire Agreement. This Agreement, including the Schedules and
Exhibits referred to herein, is complete; and all promises, representations,
understandings, warranties, and agreements with reference to the subject matter
hereof, and all inducements to the making of this Agreement relied upon by all
the parties hereto, have been expressed herein or in said Schedules or Exhibits.
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7.5. Assignability. This Agreement shall be binding upon, and shall
be enforceable by and inure to the benefit of, the parties named herein and
their respective heirs, personal representatives, successors, and assigns.
7.6. Waivers; Severability. The failure of any of the parties to this
Agreement to require the performance of a term or obligation under this
Agreement or the waiver by any of the parties to this Agreement of any breach
hereunder shall not prevent subsequent enforcement of such term or obligation or
be deemed a waiver of any subsequent breach hereunder. In case any one or more
of the provisions of this Agreement shall for any reason be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision or part of a provision of
this Agreement but this Agreement shall be construed as if such invalid or
illegal or unenforceable provision or part of a provision had never been
contained herein.
7.7. Publicity and Disclosures. Except as may be required by applicable
securities laws, no press releases or any public disclosures, either written or
oral, of the transactions contemplated by this Agreement shall be made without
the prior knowledge and written consent of the parties hereto.
7.8. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which shall
constitute one agreement.
7.9. Attorneys' Fees. In the event there is a default under this
Agreement and it becomes necessary for any party to enforce his rights
hereunder, then with or without litigation, the prevailing party shall be
entitled to his expenses, including reasonable attorneys' fees, arising out of
such enforcement of his rights hereunder.
7.10. Section Headings. Section headings are inserted for
convenience of reference only and shall not be used in any way to construe the
terms of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth above.
BUYER:
DATAMARK HOLDING, INC.
By:/s/ Chad Evans
---------------------------------
Name: Chad Evans
Title: Chairman
SISNA:
SISNA, INC.
By: /s/ David C. Pollei
---------------------------------
Name: David C. Pollei
Title: President
SHAREHOLDERS:
/s/Jeffrey A. Madison
------------------------------------
Jeffrey A. Madison
/s/Martin S. Gomez
------------------------------------
Martin S. Gomez
/s/David C. Pollei
------------------------------------
David C. Pollei
H&D Investment Company, L.C.
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By: /s/Henry J. Smith, Jr.
---------------------------------
Henry J. Smith, Jr.
Manager
By:/s/Doris H. Smith
---------------------------------
Doris H. Smith
Manager
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TABLE OF EXHIBITS
Exhibit A Plan of Merger
Exhibit B Investment Agreement
Exhibit C Opinion letter
Exhibit D Employment Agreement for
Henry J. Smith, Jr.
Exhibit E Employment Agreement for
David C. Pollei
Exhibit F Employment Agreement for
Jeffrey A. Madison
Exhibit G Employment Agreement for
Martin S. Gomez
Exhibit H Escrow Agreement
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TABLE OF SCHEDULES
Schedule of SISNA Shareholders Section 1.3
Schedule of State Operations Section 2.1
Schedule of Leases of Real Property Section 2.6
Schedule of Machinery, Equipment and
Equipment Leases Section 2.6
Schedule of Liens and Encumbrances Section 2.6
Schedule of Tax Liens Section 2.7
Schedule of Banking Arrangements Section 2.13
Schedule of Patents, Trade Names and Trademarks Section 2.14
Schedule of Contracts and Commitments Section 2.16
Schedule of Litigation and Claims Section 2.18
Schedule of Insurance Section 2.20
Schedule of Powers of Attorney Section 2.22
Schedule of Employee Compensation Section 2.27
Schedule of Franchises Section 2.33
Schedule of Software Licenses Section 2.34
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SCHEDULE OF SISNA SHAREHOLDERS
===============================================================================
Number of Total Number DataMark
SISNA of DataMark Shares to be
Name Shares Shares Escrowed
- ------------------------------------------------------------------------------
H & D Investment
Company, L.C...................... 40,000 260,000 20,000
- ------------------------------------------------------------------------------
Martin S. Gomez................... 4,250 27,625 2,125
- ------------------------------------------------------------------------------
Jeffrey A. Madison................ 3,250 21,125 1,625
- ------------------------------------------------------------------------------
David C. Pollei................... 2,500 16,250 1,250
- ------------------------------------------------------------------------------
Total.................... 50,000 325,000 25,000
==============================================================================
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