EQUITY PURCHASE AGREEMENT

 

 

This Equity Purchase Agreement, dated June 16, 2014, is by and among Brian A. Dekle and John Ramsey, as sellers (collectively, "Sellers"), GDSI Acquisition Corporation, a Delaware corporation ("Buyer"), Global Digital Solutions, Inc., a New Jersey corporation which is the parent of Buyer (“GDSI”), and North American Custom Specialty Vehicles, LLC, an Alabama limited liability company (the "Company").

 

BACKGROUND

 

a.           Sellers are the owners of all of the issued and outstanding ownership interests (the "Interests") of the Company.  Buyer desires to purchase the Interests from Sellers and Sellers desire to sell the Interests to Buyer on the terms in this Agreement.

 

b.           GDSI desires that the Buyer purchase the Interests on the terms in this Agreement.

 

c.           In consideration of the foregoing and of the mutual covenants of the parties set forth herein, the parties agree as follows:

 

 

1.1         Representations of Sellers.  Sellers represent, warrant and agree as follows:

 

(a)         Ownership of Interests.  Sellers are the lawful owners of the Interests, as shown on Exhibit A hereto, free and clear of all liens, encumbrances, restrictions and claims of every kind, and have full legal right, power and authority to enter into this Agreement and to sell, assign, transfer and convey the Interests pursuant to this Agreement.  The delivery to Buyer of the Interests pursuant to the provisions of this Agreement will transfer to Buyer valid title thereto, free and clear of all liens, encumbrances, restrictions and claims of every kind.

 

(b)         Existence and Good Standing.  The Company is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Alabama, and has the power to own its property and to carry on its business as now being conducted.

 

(c)         Ownership Interests.  The Interests represent all of the outstanding ownership or equity interests in the Company. The interests are not represented by any certificates.  The Interests have been duly authorized and validly issued and are fully paid and nonassessable.  There are no outstanding options, warrants, rights, calls, commitments, conversion rights, rights of exchange, plans or other agreements of any character providing for the purchase, issuance or sale of any equity or ownership interests in the Company.

 

(d)         Investments.  The Company does not own, directly or indirectly, any capital stock or other equity or ownership or proprietary interest in any other corporation, partnership, association, trust, joint venture or other entity.

 

 

(e)         Financial Statements.  Sellers have delivered to the Buyer the financial statements of the Company for the fiscal years ended December 31, 2013 and 2012 (the “Financial Statements”).  The Financial Statements were prepared in conformity with generally accepted accounting principles applied on a consistent basis, are in accordance with the books and records of the Company and present fairly the financial condition and results of operations of the Company as of the respective dates thereof and for the periods covered thereby. Except as disclosed in Schedule 1.1(e) or otherwise disclosed herein, the Company has no material liabilities or obligations, contingent or otherwise, which should be disclosed in the Financial Statements in accordance with generally accepted accounting principles and which are not properly reflected therein, except liabilities and obligations incurred in the ordinary course of business since December 31, 2013 as contemplated by this Agreement.  Since December 31, 2013, there has been no material adverse change in the operations, assets or prospects of the Company, except as disclosed on Schedule 1.1(e).

 

(f)          Books and Records.  The minute books of the Company contain accurate records of all meetings of and actions or written consents by the members and governing board of the Company.

 

(g)         Liens on Assets and Permitted Exceptions.  Except as set forth in Schedule 1.1(g), the Company has good and marketable title to all its material properties and assets.

 

(h)         Real Property. Schedule 1.1(h) attached hereto describes the real property owned, leased or occupied by the Company.  The Company has marketable title in fee simple to all the real property specified as owned by it in Schedule 1.1(h), except as set forth in such Schedule, and has a valid leasehold interest in the real property shown as leased to it on such Schedule.  To the knowledge of Sellers, none of the buildings, structures or appurtenances (or any fixtures therein located on the real property) encroaches on any property owned by others.  No condemnation proceeding is pending or, to the knowledge of Sellers, threatened which would preclude or impair the use of any such property by the Company for the purposes for which it is currently used.

 

(i)          Material Contracts.  Except as set forth in Schedule 1.1(i), the Company is not bound by or a party to

 

 

Each contract or agreement set forth in Schedule 1.1(i) is in full force and effect and, to the knowledge of Sellers, there exists no default or event which, with the giving of notice, the lapse of time or the happening of any other event or condition, would be a default thereunder.  The Company has not violated any of the terms or conditions of any contract or agreement set forth in Schedule 1.1(i) in any material respect, and, to the knowledge of Sellers, all of the covenants to be performed by any other party thereto have been fully performed.  Contracts made in the ordinary course of business and involving less than $10,000 shall not be deemed material for purposes of this Section.

 

(j)          Product Liabilities and Product Warranties. Except as set forth on Schedule 1.1(j) hereto, there are no pending or, to the knowledge of the Sellers or the Company, threatened product liability claims against the Company. Schedule 1.1(j) sets forth a summary of each product liability claim in excess of $10,000 paid by the Company in the past five (5) years. Standard form product warranties issued by the Company are listed and described on Schedule 1.1(j). No provision for a warranty reserve has been made in the Financial Statements as there have been no historical claims and the Company has no experience on which to base such warranty reserve in accordance with GAAP. There are no uninsured product liability claims that are pending or, to the knowledge of the Company or the Sellers, threatened.

 

(k)         Litigation.  Except as set forth in Schedule 1.1(k) hereto, there is no action, suit or proceeding at law or in equity by any person or entity, or any arbitration or any administrative or other proceeding by or before any governmental or other instrumentality or agency, pending, threatened, against or affecting the Company or any of its properties or rights which could materially and adversely affect the right or ability of the Company to carry on its business as now conducted, or which could materially and adversely affect the condition, whether financial or otherwise, or properties of the Company.  The Company is not subject to any judgment, order or decree entered in any lawsuit or proceeding which may have a material adverse effect on any of its operations, business practices or on its ability to conduct its business as now being conducted.

 

(l)          Taxes.  The Company has filed or caused to be filed, within the times and within the manner prescribed by law, all federal, state, and local tax returns and tax reports which are required to be filed by, or with respect to, the Company for the periods covered thereby.  All federal, state and local income, profits, franchise, sales, use, occupancy, excise and other taxes and assessments (including interest and penalties) payable by, or due from, the Company have been fully paid or adequately disclosed and fully provided for in the books and Financial Statements of the Company. The Sellers have delivered to the Buyer true and complete copies of all federal and state income tax returns filed by the Company for 2011, 2012 and 2013.

 

(m)        Insurance.  There are in force insurance policies which are adequate to insure fully against risks to which the Company and its property and assets are normally exposed in the operation of its business.  Schedule 1.1(m) is a list of all such insurance policies.

 

 

(n)         Intellectual Property.  Schedule 1.1(n) lists all patents, patent rights, trademarks, trademark rights, trade names, trade name rights, service marks, service mark rights, copyrights or similar rights owned or used by the Company.  Except as set forth on Schedule 1.1(n), the Company is not infringing or otherwise acting adversely to the right of any person under or in respect to, any patent, license, trademark, trade name, service mark or copyright.

 

(o)         Compliance with Laws.  Except as set forth on Schedule 1.1(o), the Company is in compliance in all material respects with all applicable laws, regulations, orders, judgments and decrees.

 

(p)         Employee Relations.   Except as set forth on Schedule 1.1(p),

 

 

(q)         Employee Benefit Plans.  Except as set forth on Schedule 1.1(q), with respect to any plans that provide benefits for employees of the Company:

 

 

(r)          Broker's or Finder's Fees.   Except as disclosed on Schedule 1.1(r), no agent, broker, person or firm acting on behalf of Sellers or the Company is, or will be, entitled to any commission or broker's or finder's fees from Sellers or the Company, or from any person controlling, controlled by or under common control with them, in connection with any of the transactions contemplated herein.

 

 

2.1         Representations of Buyer.  Buyer represents, warrants and agrees as follows:

 

(a)         Existence and Good Standing of Buyer.  Buyer is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.  Buyer has the corporate power and authority to make, execute, deliver and perform this Agreement and the other documents referred to herein which are to be entered into by the Buyer, and this Agreement and such other documents have been duly authorized and approved by all required corporate and individual action of Buyer.

 

(b)         Restrictive Documents.  Buyer is not subject to any charter, by-law, mortgage, lien, lease, agreement, instrument, order, law, rule, regulation, judgment or decree, or any other restriction of any kind or character, which would prevent consummation of the transactions contemplated by this Agreement.

 

(c)         Purchase for Investment.  Buyer will acquire the Interests for its own account for investment and not with a view toward any resale or distribution thereof.

 

(d)         Broker's or Finder's Fees.  Except as disclosed on Schedule 2.1(d), no agent, broker, person or firm acting on behalf of Buyer is, or will be, entitled to any commission or broker's or finder's fees from any of the parties hereto, or from any person controlling, controlled by or under common control with any of the parties hereto, in connection with any of the transactions contemplated herein.

 

(e)         Availability of Funds and Shares.  Buyer has made arrangements which will ensure the availability of funds required by the Buyer to make the payments called for hereunder, and Buyer has made arrangements to reserve for issuance any shares which would be anticipated to be required for such purpose if Buyer delivers shares rather than cash pursuant to Section 3.3(e).

 

 

 

3.1         Sale of Interests. Subject to the terms and conditions herein stated, Sellers agree to sell, assign, transfer and deliver the Interests to Buyer on the Closing Date, and Buyer agrees to purchase the Interests on the Closing Date and to pay the Consideration referred to below, subject to adjustment as provided herein.

 

3.2         Closing. The closing of the sale of the Interests (the “Closing”) shall take place, subject to satisfaction of the conditions set forth herein on June 16, 2014

 

3.3         Consideration. The consideration for the Interests shall be an amount not exceeding $3,600,000, either in cash or, in whole or in part, in GDSI Shares, , determined as provided below (the “Consideration”).   The Consideration shall be provided to the Sellers as follows:

 

 

If the aggregate of payments made by the Buyer under this Section 3.3(c) (with any GDSI Shares delivered hereunder being considered to be an amount of cash equal to the Discounted Value of such shares) shall equal $2,400,000, no further payments shall be required under any of the foregoing subparagraphs.

 

(e)         Option to Pay in Shares.  At the option of the Buyer, but subject to the rights of the Sellers as indicated below, any amount payable pursuant to paragraphs (ii) through (iv) of Section 3.3(c) may be paid, in whole or in part, in Registered Shares (as defined below), valued at the Discounted Value (as defined below) determined as of Closing Date.  If Buyer wishes to exercise such option, it shall notify Sellers of such election at least 20 days prior to the scheduled date of delivery of any GDSI Shares.  :    Unless Sellers, jointly, notify Buyer within ten days after they receive such notice from GDSI that Sellers elect to receive GDSI Shares, the applicable installment of the Consideration shall be paid in cash rather than in GDSI shares.

 

(f)          Defined Terms.  For purposes of this Section 3.3, the following terms shall have the meanings specified:

 

 

 

3.4         Closing Date Balance Sheet; Dispute Resolution.   Promptly following the Closing Date, Buyer shall cause its independent accounting firm (the “Accounting Firm”) to prepare the Closing Date Balance Sheet, and the Sellers shall provide all such information and assistance as may reasonably be requested by the Buyer or its accountants in connection with such preparation.  The Buyer shall also cause the accountants to determine the amount of the Closing Date Assets, based on the Closing Date Balance Sheet and the provisions of this Agreement. Buyer shall deliver to the Sellers a copy of the proposed Closing Date Balance Sheet and the determinations by the accountants of the Closing Date Assets promptly after they become available. If the Sellers disagree with the amount of the Closing Date Assets as calculated by the Accounting Firm, or with the Pretax Profits as reflected on subsequent financial statements, Sellers may arrange for an auditor selected by them (the “Sellers’ Accounting Firm”) to discuss the issues in dispute with the Accounting Firm in an effort to reach agreement.  If they are unable to reach agreement, another independent accounting firm selected by the Accounting Firm and the Sellers’ Accounting Firm shall be selected to make the final determination.  If the Accounting Firm and the Sellers’ Accounting Firm are unable to reach agreement on the third accounting firm, the Buyer shall select the third accounting firm, subject to the approval of the Sellers, such approval not unreasonably to be withheld as long as the firm in question is independent from the Buyer.  The joint determination by the Accounting Firm and the Sellers’ Accounting Firm, or by such third accounting firm, shall be final and binding on the parties, and no party shall make any further challenge to the determination and the Consideration shall be determined accordingly.

 

3.5         GDSI Guaranty.  GDSI guarantees to the Sellers the performance by the Buyer of its obligations to provide the Consideration called for hereunder, and also guarantees to Brian Dekle the Company’s payment of the indebtedness described on Schedule 3.5, subject to the grace period and other terms specified on such Schedule.  If Buyer shall for any reason fail to satisfy such obligations, GDSI shall, upon written demand by the Sellers, immediately pay to the Sellers the amount in default, or, if applicable, deliver to the Sellers the GDSI Shares required to be delivered to the Sellers hereunder.  Such guarantee obligation shall remain in effect until all of the Consideration has been indefeasibly delivered to the Sellers.

 

 

3.6         Company Guaranty.  The Company guarantees to the Sellers the performance by the Buyer of its obligations to provide the Consideration called for hereunder.  If Buyer shall for any reason fail to satisfy such obligations, the Company shall, upon written demand by the Sellers, immediately pay to the Sellers the amount in default, or, if applicable, deliver to the Sellers the GDSI Shares required to be delivered to the Sellers hereunder.  Such guarantee obligation shall remain in effect until all of the Consideration has been indefeasibly delivered to the Sellers.

 

 

4.1         Conditions to Buyer's Obligations.  The obligation of Buyer to purchase the Interests shall be subject to satisfaction of the following conditions, any of which may be waived by Buyer, to be fulfilled and/or performed at or prior to Closing:

 

4.2         Organizational Documents and Good Standing.  Sellers shall have delivered to Buyer (a) copies of the articles of organization of the Company, including all amendments thereto, certified by the Secretary of State of Alabama, (b) a copy of its operating agreement or similar governing document as in effect on the Closing Date, certified by the Sellers and (c) a certificates from the Secretary of State of Alabama, dated not more than ten days prior to the Closing Date, to the effect that the Company is in good standing.

 

4.3         No Material Adverse Change.  Prior to the Closing Date, there shall be no material adverse change in the assets or financial condition of the Company.

 

4.4         Truth of Representations and Warranties.  The representations and warranties of Sellers contained in this Agreement shall be true and correct on and as of the Closing Date with the same effect as though such representations and warranties had been made on and as of such date.

 

4.5         Performance of Agreements.  Each of the agreements of Sellers to be performed on or before the Closing Date pursuant to the terms hereof shall have been duly performed.

 

4.6         No Litigation.  No action or proceeding shall have been instituted before a court or other government body or by any public authority to restrain or prohibit any of the transactions contemplated hereby.

 

4.7         Environmental Report.  Buyer shall have received a phase I environmental report relating to the real estate owned, leased or occupied by the Company, the results of which shall be satisfactory to the Buyer in its sole discretion.

 

 

4.8         Board Approval.  The boards of directors of both the Buyer and GDSI shall have approved this Agreement.

 

4.9         Deliveries at Closing. The Sellers shall have delivered to the Buyer at the Closing:

 

 

  (i)       The Company is a limited liability company duly organized, existing and in good standing under the laws of the State of Alabama;

 

  (ii)      The Interests are validly issued and outstanding and are fully paid and non-assessable.  All of the Interests are held, beneficially and of record, by the Sellers immediately prior to the Closing, and are, to the knowledge of such counsel, free of any liens, claims or encumbrances whatsoever;

 

  (iii)      The Sellers have full power and authority to transfer the Interests to the Buyer on the terms provided in this Agreement, and all consents necessary for such transfer have been obtained;

 

  (iv)     Such counsel has no knowledge of any litigation, proceeding or governmental investigation pending or threatened against the Company which would affect the title or interest of the Sellers in the Interests, or which would prevent or adversely affect the conduct of the business of the Company, or the ability of the Seller to perform Seller’s obligations hereunder;

 

  (v)      This Agreement and the other documents to be delivered by the Sellers at the Closing have been duly executed and delivered by the Sellers and constitute the valid and binding obligations of the applicable Sellers in accordance with their terms, except as the enforceability thereof may be affected by bankruptcy and other laws affecting creditors' rights generally as in effect from time to time, and subject, as to enforceability, to the limitations of generally applicable equitable principles;

 

 

  (vi)     The execution, delivery and performance by the Sellers of this Agreement, and the consummation of the transactions contemplated hereby, will not violate or be contrary to any agreement, judgment or other restriction known to such counsel to which either Seller is a party or by which any of their property is or may be subject; and

 

  (vii)    The Interests have been duly and validly transferred to the Buyer, and the Buyer has received good and merchantable title to the Interests, free and clear of any liens, restrictions or security interests known to such counsel.

 

 

5.1         Conditions to Seller's Obligations.  The obligations of Sellers to sell the Interests hereunder shall be subject to satisfaction of the following conditions, any of which may be waived by Sellers, to be fulfilled and/or performed at or prior to Closing:

 

(a)     The representations and warranties of Buyer contained in this Agreement shall be true and correct on and as of the Closing Date with the same effect as though such representations and warranties had been made on and as of such date.

 

(b)     All governmental consents and approvals, if any, necessary to permit the consummation of the transactions contemplated by this Agreement shall have been received.

 

(c)     Each of the agreements of Buyer to be performed on or before the Closing Date pursuant to the terms hereof shall have been duly performed.

 

5.2         Deliveries at Closing. The Buyer shall deliver to the Sellers at the Closing:

 

(a)     A certificate, signed by an officer of Buyer, confirming the satisfaction of the conditions set forth in 5.1(a) and (b) above;

 

(b)     The portion of the Consideration to be provided at the Closing as provided in Section 3.3(a) including $1,000,000 in cash, by wire transfer of immediately available funds to such bank account(s) within the United States as the Sellers shall specify not later than two business days prior to the Closing to the Buyer in writing;

 

(c)     The Non-Compete Agreement in the Form of Exhibit B;

 

(d)     The Transition Agreement in the Form of Exhibit C hereto:

 

(e)     The employment letters with the individuals listed on Exhibit D hereto, executed by such individuals, in a form satisfactory to the Buyer;

 

(f)      A Pledge and Security Agreement, in the form of Exhibit E hereto, under which the Buyer pledges to the Sellers, and grants to the Sellers a security interest in, the Interests, to secure the payment of the unpaid portion of the Considerations; and

 

 

(g)     A Pledge and Security Agreement, in the form of Exhibit F hereto, under which the Company pledges to the Sellers, and grants to the Sellers a security interest in, all of the assets of the Company, to secure the Company’s guarantee of the obligations of the Buyer hereunder.

 

 

 

6.2         Negative Covenants. From the date of this Agreement until the Closing Date, unless the Buyer shall otherwise expressly agree in writing, the Sellers shall not permit the Company to:

 

(a)     Make any distributions or pay any dividends in respect of the Interests or any other securities of the Company;

 

(b)     Purchase or dispose of any assets, other than in the ordinary course of business, and in no event in excess of $10,000 in purchase price or book value in the aggregate;

 

(c)     Incur any indebtedness for money borrowed or enter into any other agreement or incur any other obligation which might be binding upon the Company following the Closing Date, except for purchases of inventory in the ordinary course of business, and except for other obligations incurred in the ordinary course of business in accordance with prior practice, none of which will adversely affect the value to the Buyer of the business;

 

(d)     Issue any stock or other securities of any kind, or any warrants, options or other rights to acquire any such securities;

 

(e)     Waive any material rights or agree to modify any material rights or obligations; or

 

(f)      Hire any management employees, or change the manner or amount of compensation to any employees or group of employees, except for normal increases in compensation in accordance with prior practice as reflected in the Financial Statements.

 

6.3         Registration of Shares.  Promptly following the Closing, the Buyer shall cause GDSI to file a registration statement with the Securities and Exchange Commission relating to the GDSI Shares delivered to the Sellers at the Closing, and to cause such registration statement to become effective, provided that the Sellers shall provide to the Buyer and to GDSI customary cooperation in connection with such registration statement, including the furnishing of all information reasonably requested by the Buyer or GDSI in connection therewith.  The Buyer or GDSI shall pay all the costs of such registration, but the Sellers shall be solely responsible for the payment of brokerage commissions and other costs incurred in connection with the sale of the applicable GDSI Shares.

 

6.4         Operation of the Business.  Following the Closing, Buyer shall use reasonable commercial efforts to operate the Company on a profitable basis and consistent with its historical practices, and shall not take actions designed to reduce the amounts of additional Consideration to be paid to the Sellers hereunder.

 

6.5         Information Rights.  For so long as the Sellers have not received all of the consideration called for under Section 3.3, Sellers shall have the right (i) to review the books and records of the Company, (ii) to cause the financial statements of the Company to be audited by an accounting firm selected by Sellers and (iii) to require the Company to deliver to the Sellers, within 15 days following the end of each month, unaudited financial statements of the Company for such month.

 

 

 

7.1         Indemnification by Sellers.  Subject to Section 7.3 below, Sellers hereby agree, jointly and severally,  to defend, indemnify and hold harmless Buyer, its affiliated companies and the directors, officers, advisors and shareholders of each from and against any and all costs, losses, liabilities, damages, claims, demands or expenses (including reasonable legal fees and expenses incurred in defending against any such claims) incurred by any of the foregoing and arising out of or resulting from any misrepresentation, breach of any warranty, or the non-fulfillment of any obligation or covenant made by Sellers in this Agreement or in any Schedule hereto or in any other agreement executed and delivered by Sellers in connection herewith.

 

7.2         Indemnification by Buyer.  Subject to Section 7.3 below, Buyer hereby agrees to defend, indemnify and hold harmless Sellers, Sellers’ affiliates and the directors, officers, advisors and shareholders of each from and against any and all costs, losses, liabilities, damages, claims, demands or expenses (including reasonable legal fees and expenses incurred in defending against any such claims) incurred by any of the foregoing and arising out of or resulting from:

 

(a)     any misrepresentation, breach of any warranty or the non-fulfillment of any obligation or covenant made by Buyer in this Agreement or in any other agreement executed and delivered by Buyer in connection herewith; or

 

(b)     any acts, omissions, events or occurrences in respect of or relating to the ownership, use or possession of the Interests or the business or assets of the Company, or otherwise relating to the conduct of the business of the Company, on or after the Closing Date, except to the extent resulting from the negligence or willful act of either Seller.

 

7.3         Limitation of Liability.

 

(a)     The obligations of Sellers under Section 7.1 and the obligations of Buyer under Section 7.2 shall be limited as follows:

 

(i)       neither Sellers nor Buyer shall have any liability in respect of any claim for indemnification which is not asserted by the other party in writing within 18 months after the Closing Date; and

 

(ii)      neither Sellers nor Buyer shall have any liability hereunder unless and until the aggregate amount of all claims asserted against Sellers or Buyer by the other for indemnification exceeds $10,000; provided that, if such limit is exceeded, the indemnified party shall be entitled to indemnification for the full amount of the claim.

 

(iii)     Sellers shall not be liable for any warranty claims by customers of the Company following the Closing, unless such warranty claims are based on matters which constitute misrepresentations or other violations by the Sellers of their obligations hereunder.

 

 

 

8.1         Expenses.  The parties hereto shall pay all of their own expenses relating to the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of their respective counsel and financial advisers.

 

8.2         Governing Law.  The interpretation and construction of this Agreement, and all matters relating hereto, shall be governed by the laws of the State of Alabama, excluding choice-of-law principles of the law of such State that would require the application of the laws of a jurisdiction other than such State.

 

8.3         Specific Performance. Each party acknowledges that irreparable injury may be caused by and that there would be no adequate remedy at law for any party’s unexcused failure to close the purchase and sale of the Interests on the Closing Date.  Accordingly, each party agrees that, in addition to any other relief which may be available to the non-breaching party, specific performance shall be appropriate without the necessity of proving damages or posting a bond.

 

8.4         Captions.  The Article and Section captions used herein are for reference purposes only, and shall not in any way affect the meaning or interpretation of this Agreement.

 

8.5         Notices.  All notices, requests, demands, claims and other communications hereunder shall be in writing and shall be deemed given if delivered personally or three business days after having been mailed by certified or registered mail, postage prepaid, return receipt requested, addressed as follows:

 

If to Sellers:

 

Brian A. Dekle

1177 Landings Road

Daphne, AL 36526

And to

John Ramsey

9209 Ramsey Road

Grand Bay, AL 36541

 

With a copy (which will not constitute notice) to:

 

Richard Davis

Davis & Fields, P.C.

27180 Pollard Road

Daphne AL ###-###-####

 

 

If to Buyer:

 

David A. Loppert

Chief Financial Officer

Global Digital Solutions, Inc.

777 South Flagler Drive, Suite 800 West Tower

West Palm Beach, Florida 33401

With a copy (which will not constitute notice) to:

 

Denis P. McCusker

Bryan Cave LLP

211 N. Broadway, Suite 3600

St. Louis, Missouri 63102

 

8.6         No Assignment.  This Agreement may not be transferred, assigned, pledged or hypothecated by Sellers or Buyer without the prior written consent of the other.  Notwithstanding anything herein to the contrary, Buyer may assign this Agreement to a corporate affiliate controlled by Buyer, provided that such assignment shall not release Buyer from any of its obligations under this Agreement.  This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators and permitted successors and assigns.

 

8.7         Counterparts.  This Agreement may be executed in two or more counterparts, all of which taken together shall constitute one instrument.

 

8.8         Entire Agreement.  This Agreement, including the other documents to be delivered as provided herein, contains the entire understanding of the parties hereto with respect to the subject matter contained herein and therein.  This Agreement supersedes all prior agreements and understandings between the parties with respect to such subject matter.

 

8.9         Amendments.  This Agreement may not be changed orally, but only by an agreement in writing signed by Sellers and Buyer.

 

8.10       Severability.  In case any provision in this Agreement shall be held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof will not in any way be affected or impaired thereby.

 

8.11       Third Party Beneficiaries.  Each party hereto intends that this Agreement shall not benefit or create any right or cause of action in or on behalf of any person other than the parties hereto.

 

 

8.12       Termination of Agreement.  The parties hereto agree to use their best efforts to fulfill the requirements of this Agreement as soon as practicable.  If the Closing does not occur on or prior to June 30, 2014, this Agreement may be terminated at the option of the Sellers or the Buyer, and no party shall have any further obligation hereunder; provided, that (a) neither Buyer nor Sellers may exercise such option if such party’s actions or inactions have prevented the occurrence of the Closing and (b) such termination shall not affect or limit the obligations of the parties in respect of any matter occurring prior to such termination, including any action or inaction which has prevented satisfaction of the conditions to the Closing set forth herein.

 

 

 

Executed as of the day and year written above.

 

		GDSI Acquisition Corporation
/s/ Brian A. Dekle		By:	/s/ David A. Loppert
Brian A. Dekle, Seller		Title:	President
/s/ John Ramsey
John Ramsey, Seller
		Global Digital Solutions, Inc.
		By:	/s/ David A. Loppert
		Title:	CFO
		North American Custom Specialty Vehicles, LLC
		By:	/s/ Brian A. Dekle
		Title:	Manager

 

 

 

1.1(e) – Financial Statements

1.1(g) - Liens on Assets and Permitted Exception

1.1(h) – Real Property Owned or Leased

1.1(i) – Material Contracts

1.1(j) – Product Liabilities and Product Warranties

1.1(k) – Litigation

1.1(m) – List of Insurance Policies

1.1(n) – Intellectual Property

1.1(o) – Compliance with Laws

1.1(p) – Employee Relations

1.1(q) - Employee Benefit Plans

1.1(r) - Broker’s or Finder’s Fees

3.3(c)(i) – List of Trailers

3.5 ― Terms  and conditions to debt guaranty

Buyer’s Schedules

2.1(d) Broker’s or Finder’s Fees

 

 

 

Brian A. Dekle

75%

John Ramsey

25%