Registration of Securities of a Small-Business Issuer — Form 10-SB
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10SB12G Registration of Securities of a Small-Business 84 323K
Issuer
2: EX-2.1 Plan of Acquisition, Reorganization, Arrangement, 21 66K
Liquidation or Succession
3: EX-3.1 Articles of Incorporation/Organization or By-Laws 5 21K
4: EX-3.2 Articles of Incorporation/Organization or By-Laws 3 16K
5: EX-3.3 Articles of Incorporation/Organization or By-Laws 12 39K
6: EX-4.1 Instrument Defining the Rights of Security Holders 2 14K
7: EX-10.1 Material Contract 10 52K
16: EX-10.10 Material Contract 6 28K
17: EX-10.11 Material Contract 23 78K
18: EX-10.12 Material Contract 53 150K
19: EX-10.13 Material Contract 19 58K
20: EX-10.14 Material Contract 2 17K
21: EX-10.15 Material Contract 20 55K
22: EX-10.16 Material Contract 1 12K
23: EX-10.17 Material Contract 7 48K
24: EX-10.18 Material Contract 2 15K
25: EX-10.19 Material Contract 15 62K
8: EX-10.2 Material Contract 17 53K
26: EX-10.20 Material Contract 8± 42K
27: EX-10.21 Material Contract 10 35K
28: EX-10.22 Material Contract 5 32K
29: EX-10.23 Material Contract 5 33K
30: EX-10.24 Material Contract 5 34K
31: EX-10.25 Material Contract 5 20K
32: EX-10.26 Material Contract 3 21K
33: EX-10.27 Material Contract 17± 78K
34: EX-10.28 Material Contract 3 23K
35: EX-10.29 Material Contract 8 41K
9: EX-10.3 Material Contract 8 30K
36: EX-10.30 Material Contract 4 27K
37: EX-10.31 Material Contract 16 76K
10: EX-10.4 Material Contract 4 23K
11: EX-10.5 Material Contract 6± 33K
12: EX-10.6 Material Contract 10 40K
13: EX-10.7 Material Contract 13 51K
14: EX-10.8 Material Contract 8 24K
15: EX-10.9 Material Contract 2 17K
38: EX-21.1 Subsidiaries of the Registrant 1 10K
39: EX-27.1 Financial Data Schedule (Pre-XBRL) 1 14K
EX-2.1 — Plan of Acquisition, Reorganization, Arrangement, Liquidation or Succession
Exhibit Table of Contents
AGREEMENT AND PLAN OF REORGANIZATION
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This Agreement and Plan of Reorganization (hereinafter the "Agreement") is
entered into effective as of this 16th day of February 1999, by and among Data
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Growth, Inc., a Nevada corporation (hereinafter "DGI"); Gary B. Peterson, a
shareholder of DGI (hereinafter "Peterson"); PhotoLoft.com, Inc., a California
corporation (hereinafter "Photo"), and the owners of the outstanding shares of
common stock of Photo (hereinafter the "Photo Stockholders").
RECITALS:
WHEREAS, the Photo Stockholders own all of the issued and outstanding
common stock of Photo (the "Photo Common Stock"). DGI desires to acquire the
Photo Common Stock solely in exchange for voting common stock of DGI, making
Photo a wholly-owned subsidiary of DGI; and
WHEREAS, the Photo Stockholders (as set forth on Exhibit "A" to be
delivered on or before Closing) desire to acquire voting common stock of DGI in
exchange for the Photo Common Stock, as more fully set forth herein.
NOW THEREFORE, for the mutual consideration set out herein and other good
and valuable consideration, the legal sufficiency of which is hereby
acknowledged, the parties agree
as follows:
AGREEMENT
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1. Plan of Reorganization. It is hereby agreed that the Photo Common
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Stock shall be acquired by DGI in exchange solely for DGI common voting stock
(the "DGI Shares"). It is the intention of the parties hereto that all of the
issued and outstanding shares of capital stock of Photo shall be acquired by DGI
in exchange solely for DGI common voting stock and that this entire transaction
qualify as a corporate reorganization under Section 368(a)(1)(B) and/or Section
351 of the Internal Revenue Code of 1986, as amended, and related or other
applicable sections thereunder.
2. Exchange of Shares. DGI and Photo Stockholders agree that on the
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Closing Date or at the Closing as hereinafter defined, the Photo Common Stock
shall be delivered at Closing to DGI in exchange for the DGI Shares, after
giving effect to a 2.46 to 1 reverse stock split (the "DGI Reverse Stock Split")
as to all presently outstanding shares of DGI common stock, as follows:
(a) At Closing, DGI shall, subject to the conditions set forth herein,
issue an aggregate of 12,375,000 shares of DGI common stock (after giving
effect to the DGI Reverse Stock Split) for immediate delivery to the Photo
Stockholders in exchange for DGI Shares. The 12,375,000 shares shall be
inclusive of shares reserved for issuance upon exercise of options granted
by DGI to optionholders of Photo at Closing in exchange for existing Photo
options as set forth on Exhibit "A".
(b) Each Photo Stockholder shall execute this Agreement or a written
consent to the exchange of their Photo Common Stock for DGI Shares.
(c) Unless otherwise agreed by DGI and Photo this transaction shall
close only in the event DGI is able to acquire at least 80% of the
outstanding Photo Common Stock; however, it is the intent of the parties to
have DGI acquire all of the Photo Common Stock.
3. PRE-CLOSING EVENTS. The Closing is subject to the completion of the
-------------------
following:
(a) DGI shall have authorized 50,000,000 shares of $.001 par value
common stock and at Closing shall amend its Articles of Incorporation to
authorize 500,000 shares of $.OO1 par value preferred stock. The preferred
stock shall be subject to issuance in such series and with such rights,
preferences and designations as determined in the sole discretion of the
board of directors.
(b) DGI shall have effectuated the DGI Reverse Stock Split at or about
the Closing, and shall have 625,000 shares of its common stock issued and
outstanding and no other shares of capital stock issued or outstanding.
(c) DGI shall demonstrate to the reasonable satisfaction of Photo that
it has no material assets and no liabilities contingent or fixed.
4. EXCHANGE OF SECURITIES. As of the Closing Date each of the following
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shall occur:
(a) All outstanding convertible preferred stock of Photo shall be
converted to Photo common stock prior to Closing and all shares of Photo
Common Stock issued and outstanding on the Closing Date shall be exchanged
for the DGI Shares (up to an aggregate amount of 12,375,000 DGI Shares to
be delivered at Closing). All such outstanding shares of Photo Common Stock
shall be deemed, after Closing, to be owned by DGI. The holders of such
certificates previously evidencing shares of Photo Common Stock outstanding
immediately prior to the Closing Date shall cease to have any rights with
respect to such shares of Photo Common Stock except as otherwise provided
herein or by law;
(b) Any shares of Photo Common Stock held in the treasury of Photo
immediately prior to the Closing Date shall automatically be canceled and
extinguished without any conversion thereof and no payment shall be made
with respect thereto;
(c) The 625,000 shares of DGI common stock previously issued and
outstanding prior to the Closing, after giving effect to the DGI Reverse
Split, will remain outstanding.
5. OTHER EVENTS OCCURRING AT CLOSING. At closing, the following shall
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be accomplished:
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(a) DGI shall file an amendment to its Articles of Incorporation with
the Secretary of State of the State of Nevada in substantially the form
attached hereto as Exhibit "B" effecting an amendment to its Articles of
Incorporation to reflect (1) a name change, (2) authorize 500,000 shares of
preferred stock, (3) add a provision eliminating liability of officers and
directors to shareholders under Nevada law, and (4) to put of record the
DGI Reverse Stock Split as set forth in the attached Exhibit "B".
(b) The resignation of the existing DGI officers and directors and
appointment of new officers and directors as directed by Photo.
(c) DGI shall have completed a limited offering under Regulation D,
Rule 504, as promulgated by the Securities and Exchange Commission ("SEC")
under the Securities Act of 1933, as amended, of 2,000,000 shares of its
common stock at $.50 per share. The gross proceeds of this offering (the
"DGI Financing") shall be $1,000,000, which amount, less agreed upon costs,
shall be delivered to the control of new management of DGI at Closing in
good funds or shall be represented by the conversion of previous loans to
Photo arranged for by Baytree. The DGI Financing shall have been completed
in compliance with all applicable state and federal securities laws and the
securities sold shall be delivered at Closing to the investors in the DGI
Financing. Persons who have loaned money to Photo, up to $1,000,000, shall
be given the opportunity to convert the principal of said loans to the
purchase of shares in the limited offering prior to Closing upon the same
terms as other investors in the limited offering.
(d) It is recognized by the parties hereto that Photo entered into an
agreement, including all amendments thereto (the "Baytree Agreement") dated
February 9, 1998, with Baytree Capital Associates, LLC (" Baytree ")
wherein Baytree agreed to identify a public company to be involved in a
"reverse merger" with Photo, and that DGI is the public company agreed to
by Baytree and Photo. Under said Baytree Agreement, at Closing of the
transactions described herein, DGI shall issue 25,000 shares of its common
stock (after given effect to the DGI Reverse Stock Split) to Baytree. These
shares are deemed to be covered by the defined term "DGI Shares" as set
forth herein for purposes of all representations and warranties of DGI and
the legal opinion given on behalf of DGI herein. Out of the proceeds of the
DGI Financing (as further defined herein) there shall be paid at Closing, a
non-accountable expense allowance of $10,000 to Baytree and the fees and
reasonable disbursements of Acquirer's legal counsel not to exceed
$30,000.00 (to be paid from the proceeds of the DGI Financing).
Furthermore, DGI recognizes and hereby assumes, at Closing, the obligations
of Photo set forth in the Baytree Agreement including the obligation to
register shares of its common stock issued to Baytree hereunder at the
request of Baytree in accordance with the express terms and conditions of
said Baytree Agreement including 'Piggyback" registration rights.
(e) DGI shall adopt a Stock Option Plan at Closing to include up to
1,000,000 shares of its common stock. The Plan shall include "incentive"
stock options under Section 422 of the Internal Revenue Code of 1986, as
amended and other options and similar rights. DGI shall grant options
covering 225,000 shares under said plan to employees and others, at
Closing, exercisable at $.50 per share, as designated by Photo.
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6. DELIVERY OF SHARES. On or as soon as practicable after the Closing
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Date, Photo will use its best efforts to cause the Photo Stockholders to
surrender certificates for cancellation representing their shares of Photo
Common Stock, against delivery of certificates representing the DGI Shares for
which the shares of Photo Common Stock are to be exchanged at Closing.
7. REPRESENTATIONS OF PHOTO STOCKHOLDERS. Each Photo Stockholder hereby
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represents and warrants each only as to its own Photo Common Stock, effective
this date and the Closing Date as follows:
(a) Except as may be set forth in Exhibit "A", the Photo Common Stock
is free from claims, liens, or other encumbrances, and at the Closing Date
said Photo Stockholder will have good title and the unqualified right to
transfer and dispose of such Photo Common Stock,
(b) Said Photo Stockholder is the sole owner of the issued and
outstanding Photo Common Stock as set forth in Exhibit "A";
(c) Said Photo Stockholder has no present intent to sell or dispose of
the DGI Shares and is not under a binding obligation, formal commitment, or
existing plan to sell or otherwise dispose of the DGI Shares.
8. REPRESENTATIONS OF PHOTO. Photo hereby represents and warrants as
---------------------------
follows, which warranties and representations shall also be true as of the
Closing Date:
(a) Except as noted on Exhibit "A", the Photo Stockholders listed on
the attached Exhibit "A" are the sole owners of record and beneficially of
the issued and outstanding common stock of Photo.
(b) Photo has no outstanding or authorized capital stock, warrants,
options or convertible securities other than as described in the Photo
Financial Statements or on Exhibit "A", attached hereto.
(c) The audited financial statements as of and for the periods ended
December 31, 1997 and 1996, and unaudited financial statements for the
period ended December 31, 1998, which have been (or will be prior
dissemination of an Information Statement by DGI) delivered to DGI
(hereinafter referred to as the "Photo Financial Statements") are complete
and accurate and fairly present the financial condition of Photo as of the
dates thereof and the results of its operations for the periods covered.
There are no material liabilities or obligations, either fixed or
contingent, not disclosed in the Photo Financial Statements or in any
exhibit thereto or notes thereto other than contracts or obligations in the
ordinary course of business; and no such contracts or obligations in the
ordinary course of business constitute liens or other liabilities which
materially alter the financial condition of Photo as reflected in the Photo
Financial Statements. Photo has good title to all assets shown on the Photo
Financial Statements subject only to dispositions and other transactions in
the ordinary course of business, the disclosures set forth herein and liens
and encumbrances of record. The Photo Financial Statements have been
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prepared in accordance with generally accepted accounting principles
consistently applied (except as may be indicated therein or in the notes
thereto) and fairly present the financial position of Photo as of the dates
thereof and the results of its operations and changes in financial position
for the periods then ended.
(d) Since the date of the Photo Financial Statements, there have not
been any material adverse changes in the financial position of Photo except
changes arising in the ordinary course of business, which changes will in
no event materially and adversely affect the financial position of Photo.
(e) Photo is not a party to any material pending litigation or, to its
best knowledge, any governmental investigation or proceeding, not reflected
in the Photo Financial Statements, and to its best knowledge, no material
litigation, claims, assessments or any governmental proceedings are
threatened against Photo.
(f) Photo is in good standing in its jurisdiction of incorporation,
and is in good standing and duly qualified, to do business in each
jurisdiction where required to be so qualified except where the failure to
so qualify would have no material negative impact on Photo.
(g) Photo has (or, by the Closing Date, will have flied) all material
tax, governmental and/or related forms and reports (or extensions thereof)
due or required to be filed and has (or will have) paid or made adequate
provisions for all taxes or assessments which have become due as of the
Closing Date.
(h) Photo has not materially breached any material agreement to which
it is a party. Photo has previously given DGI copies or access thereto of
all material contracts, commitments and/or agreements to which Photo is a
party including all relationships or dealings with related parties or
affiliates.
(i) Photo has no subsidiary corporations except as described in
writing to DGI.
(j) Photo has made all material corporate financial records, minute
books, and other corporate documents and records available for review to
present management of DGI prior to the Closing Date, during reasonable
business hours and on reasonable notice.
(k) The execution of this Agreement does not materially violate or
breach any material agreement or contract to which Photo is a party and has
been duly authorized by all appropriate and necessary corporate action
under California of other applicable law and Photo, to the extent required,
has obtained all necessary approvals or consents required by any agreement
to which Photo is a party.
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(l) All disclosure information regarding Photo which is to be set
forth in disclosure documents of DGI or otherwise delivered to DGI by Photo
for use in connection with the transaction (the "Acquisition") described
herein is true, complete and accurate in all material respects.
9. REPRESENTATIONS OF DGI AND PETERSON. DGI, and Peterson
-------------------------------------
to the best of his knowledge, hereby jointly and severally represent and warrant
as follows, each of which representations and warranties shall continue to be
true as of the Closing Date:
(a) As of the Closing Date, the DGI Shares, to be issued and delivered
to the Photo Stockholders hereunder will, when so issued and delivered,
constitute, duly authorized, validly and legally issued shares of DGI
common stock, fully-paid and nonassessable. DGI shall have completed its
reverse stock split wherein each holder of DGI Shares shall have received
one share of the DGI Shares for each 2.46 DGI Shares previously held. The
total number of DGI shares of common stock outstanding shall be 625,000. No
shares of DGI preferred stock, shall be outstanding.
(b) DGI has the corporate power to enter into this Agreement and to
perform its respective obligations hereunder. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby
have been duly authorized by the board of directors of DGI. The execution
and performance of this Agreement will not constitute a material breach of
any agreement, indenture, mortgage, license or other instrument or document
to which DGI is a party and will not violate any judgment, decree, order,
writ, rule, statute, or regulation applicable to DGI or its properties. The
execution and performance of this Agreement will not violate or conflict
with any provision of the Articles of Incorporation or by-laws of DGI.
(c) DGI has delivered to Photo (or shall deliver prior to Closing) a
true and complete copy of its audited financial statements for the years
ended December 31, 1996, 1997, and 1998 (the "DGI Financial Statements"),
The DGI Financial Statements are complete, accurate and fairly present the
financial condition of DGI as of the dates thereof and the results of its
operations for the periods then ended. There are no material liabilities or
obligations either fixed or contingent not reflected therein. The DGI
Financial Statements have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis (except as may
be indicated therein or in the notes thereto) and fairly present the
financial position of DGI as of the dates thereof and the results of its
operations and changes in financial position for the periods then ended.
(d) Since December 31, 1998, there have not been any material adverse
changes in the financial condition of DGI except with regard to
disbursements to pay reasonable and ordinary expenses in connection with
maintaining its corporate status and pursuing the matters contemplated in
this Agreement. Prior to Closing, all accounts payable and other
liabilities of DGI shall be paid and satisfied in full and DGI shall have
no liabilities either contingent or fixed.
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(e) DGI is not a party to or the subject of any pending litigation,
claims, or governmental investigation or proceeding not reflected in the
DGI Financial Statements or otherwise disclosed herein, and there are no
lawsuits, claims, assessments, investigations, or similar matters, to the
best knowledge of Peterson, threatened or contemplated against or affecting
DGI, its management or its properties.
(f) DGI is duly organized, validly existing and in good standing under
the laws of the State of Nevada; has the corporate power to own its
property and to carry on its business as now being conducted and is duly
qualified to do business in any jurisdiction where so required except where
the failure to so qualify would have no material negative impact on it.
(g) DGI has filed all federal, state, county and local income, excise,
property and other tax, governmental and/or related returns, forms, or
reports, which are due or required to be filed by it prior to the date
hereof, except where the failure to do so would have no material adverse
impact on DGI, and has paid or made adequate provision in the DGI Financial
Statements for the payment of all taxes, fees, or assessments which have or
may become due pursuant to such returns or pursuant to any assessments
received. DGI is not delinquent or obligated for any tax, penalty,
interest, delinquency or charge.
(h) There are no existing options, calls, warrants, preemptive rights
or commitments of any character relating to the issued or unissued capital
stock or other securities of DGI, except as contemplated in this Agreement.
(i) The corporate financial records, minute books, and other documents
and records of DGI have been made available to Photo prior to the Closing
and shall be delivered to new management of DGI at Closing.
(j) DGI has not breached, nor is there any pending, or to the
knowledge of management, any threatened claim that DGI has breached, any of
the terms or conditions of any agreements, contracts or commitments to
which it is a party or by which it or its assets are is bound. The
execution and performance hereof will not violate any provisions of
applicable law or any agreement to which DGI is subject. DGI hereby
represents that it has no business operations or material assets and it is
not a party to any material contract or commitment other than appointment
documents with its transfer agent, and that it has disclosed to Photo all
relationships or dealings with related parties or affiliates.
(k) DGI common stock is currently approved for quotation on the OTC
Bulletin Board under the symbol "TFGI" and there are no stop orders in
effect with respect thereto.
(l) All information regarding DGI which has been provided to Photo or
otherwise disclosed in connection with the transactions contemplated
herein, is true, complete and accurate in all material respects. DGI and
Peterson specifically disclaim any responsibility regarding disclosures as
to Photo, its business or its financial condition.
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10. Closing. The Closing of the transactions contemplated herein shall
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take place on such date (the "Closing") as mutually determined by the parties
hereto when all conditions precedent have been met and all required documents
have been delivered, which Closing is expected to take place on or about
February 26, 1999, but no later than March 4, 1999, unless extended by mutual
consent of all parties hereto. The "Closing Date" of the transactions described
herein (the "Acquisition"), shall be that date on which all conditions set forth
herein have been met and the DGI Shares are issued in exchange for the Photo
Common Stock.
11. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF PHOTO. All obligations of
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Photo under this Agreement are subject to the fulfillment, prior to or as of the
Closing and/or the Closing Date, as indicated below, of each of the following
conditions:
(a) The representations and warranties by or on behalf of Peterson and
DGI contained in this Agreement or in any certificate or document delivered
pursuant to the provisions hereof shall be true in all material respects at
and as of the Closing and Closing Date as though such representations and
warranties were made at and as of such time.
(b) DGI shall have performed and complied with all covenants,
agreements, and conditions set forth in, and shall have executed and
delivered all documents required by this Agreement to be performed or
complied with or executed and delivered by it prior to or at the Closing.
(e) On or before the Closing, the board of directors, and shareholders
representing a majority interest the outstanding common stock of DGI, shall
have approved in accordance with applicable state corporation law the
execution and delivery of this Agreement and the consummation of the
transactions contemplated herein.
(d) On or before the Closing Date, DGI shall have delivered to Photo
certified copies of resolutions of the board of directors and shareholders
of DGI approving and authorizing the execution, delivery and performance of
this Agreement and authorizing all of the necessary and proper action to
enable DGI to comply with the terms of this Agreement including the
election of Photo's nominees to the Board of Directors of DGI and all
matters outlined herein.
(e) The Acquisition shall be permitted by applicable law and DGI shall
have sufficient shares of its capital stock authorized to complete the
Acquisition.
(f) At Closing, the existing sole officer and director of DGI shall
have resigned in writing from all positions as director and officer of DGI
effective upon the election and appointment of the Photo nominees.
(g) At the Closing, all instruments and documents delivered to Photo
and Photo Stockholders pursuant to the provisions hereof shall be
reasonably satisfactory to legal counsel for Photo.
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(h) The shares of restricted DGI capital stock to be issued to Photo
Stockholders and in the DGI Financing at Closing will be validly issued,
nonassessable and fully-paid under Delaware corporation law and will be
issued in compliance with all federal, state and applicable corporation and
securities laws.
(i) Photo and Photo Stockholders shall have received the advice of
their tax advisor, if deemed necessary by them, as to all tax aspects of
the Acquisition.
(j) Photo shall have received all necessary and required approvals and
consents from required parties and its shareholders.
(k) DGI shall have completed the DGI Financing.
(1) At the Closing, DGI shall have delivered to Photo an opinion of
its counsel dated as of the Closing to the effect that:
(i) DGI is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation;
(ii) This Agreement has been duly authorized, executed and
delivered by DGI and is a valid and binding obligation of DGI
enforceable in accordance with its terms;
(iii) DGI through its board of directors and stockholders has
taken all corporate action necessary for performance under this
Agreement;
(iv) The documents executed and delivered by DGI to Photo and
Photo Stockholders hereunder are valid and binding in accordance with
their terms and vest in Photo Stockholders, as the case may be, all
right, title and interest in and to the DGI Shares to be issued
pursuant to the terms hereof, and the DGI Shares when issued will be
duly and validly issued, fully-paid and nonassessable;
(v) DGI has the corporate power to execute, deliver and perform
under this Agreement;
(vi) Legal counsel for DGI is not aware of any liabilities,
claims or lawsuits involving DGI;
12. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF DGI. All obligations of DGI
-----------------------------------------------
under this Agreement are subject to the fulfillment, prior to or at the Closing,
of each of the following conditions:
(a) The representations and warranties by Photo and Photo Stockholders
contained in this Agreement or in any certificate or document delivered
pursuant to the provisions hereof shall
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be true in all material respects at and as of the Closing as though such
representations and warranties were made at and as of such time.
(b) Photo shall have performed and complied with, in all material
respects, all covenants, agreements, and conditions required by this
Agreement to be performed or complied with by it prior to or at the
Closing;
(c) Photo shall deliver on behalf of the Photo Stockholders a letter
commonly known as an "Investment Letter," signed by each of said
shareholders, in substantially the form attached hereto as Exhibit "C",
acknowledging that the DGI Shares are being acquired for investment
purposes.
(d) Photo shall deliver an opinion of its legal counsel to the effect
that:
(i) Photo is a corporation duly organized, validly existing and
in good standing under the laws of its jurisdiction of incorporation
and is duly qualified to do business in any jurisdiction where so
required except where the failure to so qualify would have no material
adverse impact on Photo;
(ii) This Agreement has been duly authorized, executed and
delivered by Photo.
(iii) The documents executed and delivered by Photo and Photo
Stockholders to DGI hereunder are valid and binding in accordance with
their terms and vest in DGI all right, tide and interest in and to the
Photo Common Stock, which stock is duly and validly issued, fully-paid
and nonassessable.
13. INDEMNIFICATION.For a period of one year from the Closing, DGI and
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Peterson agree to jointly and severally indemnify and hold harmless Photo, and
Photo agrees to indemnify and hold harmless DGI and Peterson, at all times after
the date of this Agreement against and in respect of any liability, damage or
deficiency, all actions, suits, proceedings, demands, assessments, judgments,
costs and expenses including attorney's fees incident to any of the foregoing,
resulting from any material misrepresentations made by an indemnifying party to
an indemnified party, an indemnifying party's breach of covenant or warranty or
an indemnifying party's nonfulfillment of any agreement hereunder, or from any
material misrepresentation in or omission from any certificate famished or to be
@shed hereunder.
14. NATURE AND SURVIVAL OF REPRESENTATIONS. All representations,
---------------------------------------
warranties and covenants made by any party in this Agreement shall survive the
Closing and the consummation of the transactions contemplated hereby for one
year from the Closing. All of the parties hereto are executing and carrying out
the provisions of this Agreement in reliance solely on the representations,
warranties and covenants and agreements contained in this Agreement and not upon
any investigation upon which it might have made or any representation, warranty,
agreement, promise or information, written or oral, made by the other parry or
any other person other than as specifically set forth herein.
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15. DOCUMENTS AT CLOSING. At the Closing, the following documents
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shall be delivered:
(a) Photo will deliver, or will cause to be delivered, to DGI the
following:
(i) a certificate executed by the President and Secretary of
Photo to the effect that all representations and warranties made by
Photo under this Agreement are true and correct as of the Closing, the
same as though originally given to DGI on said date;
(ii) a certificate from the jurisdiction of incorporation of
Photo dated at or about the Closing to the effect that Photo is in
good standing under the laws of said jurisdiction;
(iii) Investment Letters in the form attached hereto as Exhibit
"C" executed by each Photo Stockholder;
(iv) such other instruments, documents and certificates, if any,
as are required to be delivered pursuant to the provisions of this
Agreement;
(v) certified copies of resolutions adopted by the shareholders
and directors of Photo authorizing this transaction; and
(vi) all other items, the delivery of which is a condition
precedent to the obligations of DGI as set forth herein.
(vii) the legal opinion required by Section 12(d) hereof.
(b) DGI will deliver or cause to be delivered to Photo:
(i) stock certificates representing the DGI Shares to be issued
as a part of the stock exchange as described herein;
(ii) a certificate of the President of DGI, to the effect that
all representations and warranties of DGI made under this Agreement
are true and correct as of the Closing, the same as though originally
given to Photo on said date;
(iii) certified copies of resolutions adopted by DGI's board of
directors and DGI's Stockholders authorizing the Acquisition and all
related matters described herein;
(iv) certificate from the jurisdiction of incorporation of DGI
dated at or about the Closing Date that DGI is in good standing under
the laws of said state;
(v) opinion of DGI's counsel as described in Section 11 (I)
above;
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(vi) such other instruments and documents as are required to be
delivered pursuant to the provisions of this Agreement;
(vii) resignation of the existing officer and director of DGI;
(viii) all corporate and financial records of DGI; and
(ix) all other items, the delivery of which is a condition
precedent to the obligations of Photo, as set forth in Section 12
hereof.
16. FINDER'S FEES. DGI, represents and warrants to Photo, and
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Photo represents and warrants to DGI that neither of them, or any party acting
on their behalf, has incurred any liabilities, either express or implied, to any
"broker" of "finder" or similar person in connection with this Agreement or any
of the transactions contemplated hereby other than the arrangements described in
Section 5(d) hereof. In this regard, DGI, on the one hand, and Photo on the
other hand, will indemnify and hold the other harmless from any claim, loss,
cost or expense whatsoever (including reasonable fees and disbursements of
counsel) from or relating to any such express or implied liability other than as
disclosed herein.
17. MISCELLANEOUS.
--------------
(a) Further Assurances. At any time, and from time to time, after the
-------------------
Closing Date, each party will execute such additional instruments and take such
action as may be reasonably requested by the other party to confirm or perfect
title to any property transferred hereunder or otherwise to carry out the intent
and purposes of this Agreement.
(b) Waiver. Any failure on the part of any party hereto to comply with
------
any of its obligations, agreements or conditions hereunder may be waived in
writing by the party to whom such compliance is owed.
(c) Amendment. This Agreement may be amended only in writing as agreed
---------
to by all parties hereto.
(d) Notices. All notices and other communications hereunder shall be
-------
in writing and shall be deemed to have been given if delivered in person or sent
by prepaid first class registered or certified mail, return receipt requested.
(e) Headings. The section and subsection headings in this Agreement
--------
are inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(f) Counterparts. This Agreement may be executed simultaneously in two
------------
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
12
(g) Governing Law. This Agreement shall be construed and enforced in
-------------
accordance with the laws of the State of Nevada.
(h) Binding Effect . This Agreement shall be binding upon the parties
---------------
hereto and ixiu-re to the benefit of the parties, their respective heirs,
administrators, executors, successors and assigns.
(i) Entire Agreement. This Agreement and the attached Exhibits
------------------
constitute the entire agreement of the parties covering everything agreed upon
or understood in the transaction. There are no oral promises, conditions,
representations, understandings, interpretations or terms of any kind as
conditions or inducements to the execution hereof.
(j) Time. Time is of the essence.
----
(k) Severability . If any part of this Agreement is deemed to be
------------
unenforceable the balance of the Agreement shall remain in full force and
effect.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first above written.
DATA GROWTH, INC.
By: s.________________
Gary B. Peterson, President
s.________________
Gary B. Peterson, individually
PHOTOLOFT.COM, INC.
By: s.________________
Jack Marshall, President
S T 0 C K H 0 L D B R S 0 F
PHOTOLOFT.COM, INC.
________________ ________________
George Perlegos Jack Marshall
________________ ________________
Gust Perlegos Gary Kremen
________________ ________________
John Marshall Mikes Sisos
13
(g) Governing Law . This Agreement shall be construed and enforced in
--------------
accordance with the laws of the State of Nevada.
(h) Binding Effect . This Agreement shall be binding upon the parties
---------------
hereto and ixiu-re to the benefit of the parties, their respective heirs,
administrators, executors, successors and assigns.
(i) Entire Agreement. This Agreement and the attached Exhibits
------------------
constitute the entire agreement of the parties covering everything agreed upon
or understood in the transaction. There are no oral promises, conditions,
representations, understandings, interpretations or terms of any kind as
conditions or inducements to the execution hereof.
(j) Time. Time is of the essence.
----
(k) Severability . If any part of this Agreement is deemed to be
------------
unenforceable the balance of the Agreement shall remain in full force and
effect.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first above written.
DATA GROWTH, INC.
By:___________________
Gary B. Peterson, President
Gary B. Peterson, individually
PHOTOLOFT.COM, INC.
By:___________________
Jack Marshall, President
S T 0 C K H 0 L D B R S 0 F
PHOTOLOFT.COM, INC.
________________ ________________
George Perlegos Jack Marshall
________________ ________________
Gust Perlegos Gary Kremen
________________ ________________
s. John Marshall Mikes Sisos
13
___________
Mike Ross
_____________
Chris McConn
______________
Kay Wolf Jones
14
(g) Governing Law . This Agreement shall be construed and enforced in
--------------
accordance with the laws of the State of Nevada.
(h) Binding Effect . This Agreement shall be binding upon the parties
---------------
hereto and ixiu-re to the benefit of the parties, their respective heirs,
administrators, executors, successors and assigns.
(i) Entire Agreement. This Agreement and the attached Exhibits
------------------
constitute the entire agreement of the parties covering everything agreed upon
or understood in the transaction. There are no oral promises, conditions,
representations, understandings, interpretations or terms of any kind as
conditions or inducements to the execution hereof.
(j) Time. Time is of the essence.
----
(k) Severability . If any part of this Agreement is deemed to be
------------
unenforceable the balance of the Agreement shall remain in full force and
effect.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first above written.
DATA GROWTH, INC.
By: s._____________________
Gary B. Peterson, President
s. _____________________
Gary B. Peterson, individually
PHOTOLOFT.COM, INC.
By: s.__________________
Jack Marshall, President
S T 0 C K H 0 L D B R S 0 F
PHOTOLOFT.COM, INC.
s._______________ s._____________
George Perlegos Jack Marshall
s._______________ s._____________
Gust Perlegos Gary Kremen
s._______________ s._____________
John Marshall Mikes Sisos
14
(g) Governing Law . This Agreement shall be construed and enforced in
--------------
accordance with the laws of the State of Nevada.
(h) Binding Effect . This Agreement shall be binding upon the parties
---------------
hereto and ixiu-re to the benefit of the parties, their respective heirs,
administrators, executors, successors and assigns.
(i) Entire Agreement. This Agreement and the attached Exhibits
------------------
constitute the entire agreement of the parties covering everything agreed upon
or understood in the transaction. There are no oral promises, conditions,
representations, understandings, interpretations or terms of any kind as
conditions or inducements to the execution hereof.
(j) Time. Time is of the essence.
----
(k) Severability . If any part of this Agreement is deemed to be
------------
unenforceable the balance of the Agreement shall remain in full force and
effect.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first above written.
DATA GROWTH, INC.
By:
Gary B. Peterson, President
Gary B. Peterson, individually
PHOTOLOFT.COM, INC.
By:
s. Jack Marshall, President
S T 0 C K H 0 L D B R S 0 F
PHOTOLOFT.COM, INC.
s. George Perlegos s.Jack Marshall
s. Gust Perlegos Gary Kremen
John Marshall s. Mikes Sisos
14
s. Mike Ross
----------
s. Chris McConn
-------------
s. Kay Wolf Jones
----------------
15
s. Mike Ross
------------
s. Chris McConn
s. Kay Wolf Jones
15
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘10SB12G’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 7/13/99 | | | | | | | None on these Dates |
| | 3/4/99 | | 10 |
| | 2/26/99 | | 10 |
| | 12/31/98 | | 6 | | 8 |
| | 2/9/98 | | 5 |
| | 12/31/97 | | 6 | | 8 |
| | 12/31/96 | | 6 | | 8 |
| List all Filings |
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Filing Submission 0001015402-99-000702 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)
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