EX-10.6
AGREEMENT TO RESCIND
This Agreement to Rescind is made effective this 27th day of
September, 2001, by and between ▇▇▇▇.▇▇▇, Inc., a Nevada Corporation
("ECOC") and the following: ▇▇▇▇▇ ▇▇▇▇▇▇▇, LLC, a Utah limited
liability company ("DMLLC"); ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, a Utah resident ("▇▇.
▇▇▇▇▇▇▇"); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, a Utah resident ("▇▇. ▇▇▇▇▇▇▇▇▇▇");
and Validate Corporation, a Utah corporation ("Validate").
WHEREAS, ECOC, DMLLC, ▇▇. ▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇, and Validate
have entered into a number of other stock exchange agreements in
July, 2001 (specified below); and
WHEREAS, the recent terrorist attacks on the United States
involving the World Trade Center and the Pentagon have severely
disrupted the U.S. financial markets, as a result of which disruption
the Company has suffered serious setbacks in its efforts to obtain
financing for the land project contemplated by the aforementioned
stock exchange agreements; and
WHEREAS, as a result of such disruption and setbacks, there has
been no material progress in the project contemplated by such
agreements, and no material change in position by any party to this
agreement, and no material expenses have been incurred by any party
in relation to the stock exchange agreements; and
WHEREAS, the parties are all willing to rescind the
aforementioned stock exchange agreements and to give back to each
other the stock involved in such agreements;
NOW THEREFORE, in exchange for the mutual consideration set out
herein, the sufficiency of which is hereby acknowledged by all
parties, it is agreed as follows:
1. Rescission of Prior Agreements. The parties, and each of them,
hereby mutually agree to rescind the following stock exchange
agreements, and to treat the following stock exchange agreements as
void ab initio (i.e., from the beginning):
A. Stock Exchange Agreement dated July 10, 2001 between
ECOC and DMLLC for 310,000 shares of Class A Convertible
Preferred Stock of Royal Oasis in exchange for a like
number of ECOC Class A Convertible Preferred Stock.
B. Stock Exchange Agreement dated July 10, 2001 between
ECOC and DMLLC for 750,000 shares of common stock of Royal
Oasis in exchange for a like number of ECOC common stock.
C. Stock Exchange Agreement dated July 10, 2001 between
ECOC and ▇▇. ▇▇▇▇▇▇▇ for 100,000 shares of Class A
Convertible Preferred Stock of Royal Oasis in exchange for
a like number of ECOC Class A Convertible Preferred Stock.
D. Stock Exchange Agreement dated July 10, 2001 between
ECOC and ▇▇. ▇▇▇▇▇▇▇ for 250,000 shares of Common Stock of
Royal Oasis in exchange for a like number of ECOC Common Stock.
E. Stock Exchange Agreement dated July 10, 2001 between
ECOC and ▇▇. ▇▇▇▇▇▇▇▇▇▇ for 186,000 shares of Class A
Convertible Preferred Stock of Royal Oasis in exchange for
a like number of ECOC Class A Convertible Preferred Stock.
F. Stock Exchange Agreement dated July 10, 2001 between
ECOC and ▇▇. ▇▇▇▇▇▇▇▇▇▇ for 450,000 shares of Common Stock
of Royal Oasis in exchange for a like number of ECOC Common
Stock.
G. Stock Exchange Agreement dated July 10, 2001 between
ECOC and Validate for 24,000 shares of Class A Convertible
Preferred Stock of Royal Oasis in exchange for a like
number of ECOC Class A Convertible Preferred Stock.
H. Stock Exchange Agreement dated July 10, 2001 between
ECOC and Validate for 50,000 shares of Common Stock of
Royal Oasis in exchange for a like number of ECOC Common Stock.
2. Return of All Stock Certificates and Cancellation of Same. The
parties, and each of them, hereby mutually agree to return to
each other all stock exchanged pursuant to the above-described
agreements. Such delivery shall take place as soon as possible,
and in any event no later than 10 days from the date of this
agreement. The parties, and each of them, hereby agree that all
such share certificates may be canceled, regardless of whether
or not the certificates are actually delivered, and each party
hereto agrees that such certificates represent no further right
to possess the aforesaid stock, effective immediately.
3. Representations and Warranties. Each party to this agreement,
as relating to itself, hereby represents and warrants to each
and every other party that effective this date, the following
statements are true and correct:
A. Authority. Each party, as relating to itself, has the full
power and authority to enter this Agreement and to carry
out the obligations contemplated by this Agreement. Each
party, as to itself, has duly authorized the execution,
delivery and performance of this Agreement.
B. No Conflict With Other Instruments. The execution of this
Agreement will not violate or breach any document,
instrument, agreement, contract, or commitment material to
the business of such party, and this Agreement has been
duly authorized by all appropriate and necessary action.
C. Corporate or Company Authority. Each corporation or
limited liability company which is a party to this
agreement, as relating to itself, has the full corporate or
company power and authority to enter this Agreement and to
carry out the obligations contemplated by this Agreement.
The Board of Directors of such corporation or the Members
of such LLC have duly authorized the execution, delivery,
and performance of this Agreement.
4. Damages and Limit of Liability. Each party shall be liable
for any material breach of its representations, warranties, and
covenants contained herein which results in a failure to perform
any obligation under this Agreement, only to the extent of the
expenses incurred in connection with such breach or failure to
perform this Agreement. Each party hereby waives the right to
claim any consequential damages.
5. Nature and Survival of Representations and Warranties. All
representations, warranties and covenants made by any party in
this Agreement shall survive the Closing hereunder. All of the
parties hereto are executing and carrying out the provisions of
this Agreement in reliance solely on the representations,
warranties, covenants and agreements contained in this Agreement
and not upon any investigation which it might have made or any
representation, warranty, agreement, promise, or information,
written or oral, given by the other party (or any other person)
except as specifically set forth herein.
6. Indemnification Procedures. If any claim is made by a
party which would give rise to a right of indemnification under
this Agreement, the party seeking indemnification (Indemnified
Party) will promptly cause written notice thereof to be
delivered by certified mail, return receipt requested, to the
party from whom it is sought (Indemnifying Party). The
Indemnified Party will permit the Indemnifying Party to assume
the defense of any such claim or any litigation resulting from
the claims. Counsel for the Indemnifying Party which will
conduct the defense must be approved by the Indemnified Party
(whose approval will not be unreasonable withheld), and the
Indemnified Party may participate in such defense at the expense
of the Indemnified Party. The Indemnifying Party will not in
the defense of any such claim or litigation, consent to entry of
any judgment or enter into any settlement without the written
consent of the Indemnified Party (which consent will not be
unreasonably withheld). The Indemnified Party will not, in
connection with any such claim or litigation, consent to entry
of any judgement or enter into any settlement without the
written consent of the Indemnifying Party (which consent will
not be unreasonable withheld). The Indemnified Party will
cooperate fully with the Indemnifying Party and make available
to the Indemnifying Party all pertinent information under its
control relating to any such claim or litigation. If the
Indemnifying Party refuses or fails to conduct the defense as
required in this Section, after delivery of proper notice, then
the Indemnified Party may conduct such defense at the expense of
the Indemnifying Party, and the approval of the Indemnifying
Party will not be required for any settlement or entry of judgment.
7. Miscellaneous.
A. Further Assurances. At any time and from time to time each
party will execute such additional instruments and take such
additional actions 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 only by a writing signed by the party
to
whom such compliance is owed.
C. Brokers. Neither party has employed any brokers or finders
with regard to this Agreement except as disclosed herein.
D. 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.
E. 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. Fax copies of
signatures shall be deemed as effective as originals for all
purposes.
F. Governing Law. This Agreement was negotiated and is being
contracted for in the State of Utah, and shall be governed by
the laws of the State of Utah, regardless of any conflict-of-
law
provision to the contrary. Any suit, action or legal
proceeding
arising from or related to this Agreement shall be brought in a
court of competent jurisdiction in Salt Lake City, Utah, and
each party irrevocably and unconditionally consents to the
jurisdiction of such Courts in such suit, action or legal
proceeding and waives any objection to the laying of venue in,
or the jurisdiction of, said Courts.
G. Binding Effect. This Agreement shall be binding upon the
parties hereto and inure to the benefit of the parties their
respective heirs, administrators, executors, successors, and
assigns.
H. Entire Agreement. The Agreement contains the entire
agreement between the parties hereto and supersedes any and all
prior agreements, arrangements or understandings between the
parties relating to the subject matter hereof. No oral
understandings, statements, promises or inducements contrary to
the terms of this Agreement exist. No representations,
warranties covenants, or conditions, express or implied, other
than as set forth here, have been made by any party.
I. 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.
▇▇▇▇.▇▇▇, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
▇▇▇▇▇ ▇▇▇▇▇▇▇, LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, Member
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, in her individual capacity
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, in her individual capacity
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Validate Corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, President