AMENDED LLC INTEREST PURCHASE AGREEMENT
THIS AGREEMENT is made as of the 24th day of February, 2004, by and between
MULTITRADE TECHNOLOGIES LLC, a limited liability company organized under the
laws of New York ("MTT"), ▇▇▇ ▇▇▇▇, an individual, as the sole owner and
principal of MTT ("Khan"), ▇▇▇▇▇▇▇ RIVERS TECHNOLOGIES, INC., a Nevada
corporation ("JRT"), and THE ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ COMPANY, a Florida corporation
("JRC"). Khan and MTT are herein sometimes collectively referred to as the
"Sellers."
WHEREAS, Khan owns 100 percent of the limited liability company interest in
MTT; and
WHEREAS, JRT is a wholly-owned subsidiary of JRC; and
WHEREAS, Khan desires to transfer all of his right, title and interest in
MTT to JRT in exchange for 20,000,000 shares of the common stock of JRC, par
value $0.001 per share (the "JRC Common Stock") as hereinafter provided; and
WHEREAS, JRC desires that JRT acquire all of Khan's right, title and
interest in MTT from Khan in exchange for 20,000,000 shares of the JRC Common
Stock, valued at approximately $1,000,000;
NOW, THEREFORE, in consideration of the foregoing and the following mutual
covenants and agreements, the parties hereto agree as follows:
1. The LLC Interest Purchase. Upon the terms and subject to the
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conditions set forth in this Agreement Khan shall exchange, sell, assign, and
transfer to JRT at the closing of this Agreement (the "Closing"), free and clear
of all liens and encumbrances, and JRT shall accept from Khan at the Closing all
of Khan's right, title and interest in and to the interest owned by Khan in MTT.
In consideration therefor, JRC shall deliver to Khan once they become available,
20,000,000 shares of JRC Common Stock valued at approximately $1,000,000. In
that regard, JRC shall amend its articles of incorporation as soon as
practicable to provide for sufficient shares to issue the shares due to Khan
hereunder.
2. Restrictive Legend. All shares of the JRC Common Stock to be
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delivered to Khan hereunder shall be issued pursuant to an exemption from
registration under Section 4(2) of the Securities Act of 1933, as amended (the
"Securities Act"), inasmuch such shares to be issued to Khan will be issued for
investment purposes without a view to distribution. In addition, Khan will have
had access to information concerning JRC and its business prospects, as required
by the Securities Act. Furthermore, there will be no general solicitation or
advertising for the purchase of the shares of the JRC Common Stock covered by
this Agreement. The securities are to be issued to Khan after thorough
discussions that comprise less than 35 Non-Accredited Investors as defined in
the Securities Act. Finally, JRC's stock transfer agent will be instructed not
to transfer any of such shares, unless such shares are registered for resale or
there is an exemption with respect to their transfer.
All shares of the JRC Common Stock to be delivered to Khan hereunder shall
bear a restrictive legend in substantially the following form:
"THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY STATE SECURITIES LAWS AND NEITHER SUCH SHARES NOR ANY INTEREST THEREIN
MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED UNLESS A
REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE SECURITIES
ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT."
3. Tax Treatment. The receipt of the JRC Common Stock by Khan will not
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be taxable, while the acquisition of the MTT limited liability company interest
by JRT will qualify as a "B" type reorganization under Section 368 of the
Internal Revenue Code of 1986, as amended. In order to ensure compliance with
said provisions,
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the parties agree to take whatever steps may be necessary, including, but not
limited to, the amendment of this Agreement.
4. Representations and Warranties of the Sellers. Where a
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representation contained in this Agreement is qualified by the phrase "to the
best of the Sellers' knowledge" (or words of similar import), such expression
means that, after having conducted a due diligence review, the Sellers believe
the statement to be true, accurate, and complete in all material respects.
Knowledge shall not be imputed nor shall it include any matters which such
person should have known or should have been reasonably expected to have known.
The Sellers represent and warrant to JRC and JRT as follows:
(a) Power and Authority. The Sellers have full power and
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authority to execute, deliver, and perform this Agreement and all other
agreements, certificates or documents to be delivered in connection herewith,
including, without limitation, the other agreements, certificates and documents
contemplated hereby (collectively the "Other Agreements").
(b) Binding Effect. Upon execution and delivery by the Sellers,
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this Agreement and the Other Agreements shall be and constitute the valid,
binding and legal obligations of the Sellers, enforceable against the Sellers in
accordance with the terms hereof and thereof, except as the enforceability
hereof or thereof may be subject to the effect of (i) any applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or affecting
creditors' rights generally, and (ii) general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law).
(c) Effect. Neither the execution and delivery of this Agreement
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or the Other Agreements nor full performance by the Sellers of their obligations
hereunder or thereunder will violate or breach, or otherwise constitute or give
rise to a default under, the terms or provisions of the Certificate of
Formation, or the Limited Liability Company Agreement of MTT or, subject to
obtaining any and all necessary consents, of any contract, commitment or other
obligation of MTT or necessary for the operation of MTT's business (the
"Business") following the Closing or any other material contract, commitment, or
other obligation to which MTT is a party, or create or result in the creation of
any encumbrance on any of the property of MTT. MTT is not in violation of its
Certificate of Formation, or the Limited Liability Company Agreement, or of any
indebtedness, mortgage, contract, lease, or other agreement or commitment.
(d) No Contracts, Arrangements, Understandings or Relationships
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With Respect to Securities of JRC. There are no contracts, arrangements,
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understandings or relationships (legal or otherwise) among any of the parties to
this Agreement, or any other person with respect to any other securities of JRC,
including but not limited to transfer or voting of any of securities of JRC,
finder's fees, joint ventures, loan or option arrangements, puts or calls,
guarantees of profits, division of profits or loss, or the giving or withholding
of proxies, naming the persons with whom such contracts, arrangements,
understandings or relationships have been entered into.
(e) No Consents. No consent, approval or authorization of, or
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registration, declaration or filing with any third party, including, but not
limited to, any governmental department, agency, commission or other
instrumentality, will, except such consents, if any, delivered or obtained on or
prior to the Closing, be obtained or made by the Sellers prior to the Closing to
authorize the execution, delivery and performance by the Sellers of this
Agreement or the Other Agreements.
(f) Stock Ownership. Khan has good, absolute, and marketable
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title to 100 percent of the issued and outstanding interest in MTT. Khan has
the complete and unrestricted right, power and authority to cause the sale,
transfer, and assignment of the interest in MTT pursuant to this Agreement. The
delivery of the interest in MTT to JRT as herein contemplated will vest in JRT
good, absolute and marketable title to the interest in MTT as described herein,
free and clear of all liens, claims, encumbrances, and restrictions of every
kind, except those restrictions imposed by applicable securities laws or this
Agreement.
(g) Organization and Standing of MTT. MTT is a duly organized and
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validly existing New York limited liability company in good standing, with all
requisite corporate power and authority to carry on the Business as presently
conducted. MTT has not qualified to do business in any other jurisdiction.
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(h) No Subsidiaries. MTT has no subsidiaries.
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(i) Capitalization. There are no outstanding options, contracts,
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commitments, warrants, preemptive rights, agreements or any rights of any
character affecting or relating in any manner to the issuance of the MTT limited
liability interests or other securities or entitling anyone to acquire the MTT
limited liability interests or other securities of MTT.
(j) Liabilities and Assets. Except as set forth on Attachment A to
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this Agreement, MTT does not have any liabilities. The assets of MTT are set
forth on Attachment B to this Agreement.
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(k) Present Status. Since January 31, 2004, MTT has not: (i)
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incurred any material obligations or material liabilities, absolute, accrued,
contingent, or otherwise; (ii) discharged or satisfied any liens or
encumbrances, or paid any obligations or liabilities, except current Financial
Statement liabilities and current liabilities incurred since the dates reflected
on the Financial Statement, in each case, in the ordinary course of business;
(iii) declared or made any stockholder payment or distribution or purchased or
redeemed any of its securities or agreed to do so; (iv) waived any rights of a
material value; or (v) entered into any transaction other than in the ordinary
course of business.
(l) Litigation. Other than as reflected on Attachment C attached
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hereto and incorporated herein by reference for all purposes, there are no legal
actions, suits, arbitrations, or other legal, administrative or other
governmental proceedings pending or threatened against MTT, and the Sellers are
not aware of any facts which to their knowledge may result in any such action,
suit, arbitration, or other proceeding.
(m) No Employees. As of the date of this Agreement as well as at
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the Closing, MTT does not have and will not have any employees.
(n) Compliance with Law and Other Instruments. The business and
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operations of MTT have been and are being conducted in accordance with all
applicable laws, rules and regulations of all authorities, except those which do
not (either individually or in the aggregate) materially and adversely affect
MTT.
(o) Contracts. Except as disclosed by documents presented to JRT
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and JRC prior to the Closing and expressly accepted by JRT and JRC prior to the
Closing, MTT is not a party to, or otherwise bound by any: (i) written or oral
contract; (ii) employment or consultant contract not terminable at will without
cost or other liability; (iii) labor union contracts; (iv) bonus, pension,
profit sharing, retirement, share purchase, stock option, hospitalization, group
insurance, or similar employee benefit plan; (v) any real or personal property
lease, as lessor or lessee; (vi) advertising or public relations contract; (vii)
purchase, supply or service contract, which cannot be terminated without cost or
expense to MTT if such termination occurs with less than 30 days' notice; (viii)
deed of trust, mortgage, conditional sales contract, security agreement, pledge
agreement, trust receipt, or any other agreement or arrangement whereby any of
the assets or property of MTT is subject to a lien, encumbrance, charge or other
restriction except such as shall be satisfied prior to the Closing; (ix) license
agreement, whether as licensee or licensor; (x) contract or agreement involving
any expenditure by MTT of more than $500.00 in the aggregate; (xi) contract or
agreement which MTT cannot terminate by giving less than 30 days' notice; and
(xii) contract to be performed in whole or in part more than 90 days from the
date thereof and which cannot be terminated without cost or liability to MTT.
Other than as disclosed on Attachment D attached hereto and incorporated
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herein by reference for all purposes, to the best of the Sellers' knowledge and
belief, MTT has in all respects performed all obligations required to be
performed to date, and is not in material default in any respect under any of
the contracts, agreements, leases, documents, or other commitments to which it
is a party or otherwise bound or affected. All parties having material contracts
with MTT are in material compliance therewith, and are not in material default
thereunder.
(p) Records. The books of account and minute books of MTT are
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complete and correct, and reflect all those transactions involving its business
which properly should have been set forth in such books.
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(q) Absence of Certain Changes or Events. Since February 15,
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2004, there has not been any change in or any event or condition (financial or
otherwise) affecting the property, assets, liabilities, operations, or prospects
of MTT, other than changes in the ordinary course of its business, none of which
has (either when taken by itself or taken in conjunction with all other such
changes) been materially adverse.
(r) The Sellers' Representations and Warranties True and Complete.
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All representations and warranties of the Sellers in this Agreement and the
Other Agreements are true, accurate and complete in all material respects as of
the Closing.
(s) No Knowledge of JRT's or JRC's Default. The Sellers have no
-----------------------------------------
knowledge that any of JRT's or JRC's representations and warranties contained in
this Agreement or the Other Agreements are untrue, inaccurate or incomplete or
that JRT or JRC are in default under any term or provision of this Agreement or
the Other Agreements.
(t) No Untrue Statements. No representation or warranty by the
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Sellers in this Agreement or in any writing furnished or to be furnished
pursuant hereto, contains or will contain any untrue statement of a material
fact, or omits, or will omit to state any material fact required to make the
statements herein or therein contained not misleading.
(u) Reliance. The foregoing representations and warranties are
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made by the Sellers with the knowledge and expectation that JRT and JRC are
placing complete reliance thereon.
5. Representations and Warranties of JRT and JRC. Where a
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representation contained in this Agreement is qualified by the phrase "to the
best of JRT's or JRC's knowledge" (or words of similar import), such expression
means that, after having conducted a due diligence review, the principals of JRT
and JRC believe the statement to be true, accurate, and complete in all material
respects. Knowledge shall not be imputed nor shall it include any matters which
such person should have known or should have been reasonably expected to have
known. JRT and JRC hereby represent and warrant to the Sellers as follows:
(a) Power and Authority. JRT and JRC have full power and
---------------------
authority to execute, deliver and perform this Agreement and the Other
Agreements.
(b) Binding Effect. Upon execution and delivery by JRT and JRC,
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this Agreement and the Other Agreements shall be and constitute the valid,
binding and legal obligations of JRT and JRC enforceable against JRT and JRC in
accordance with the terms hereof or thereof, except as the enforceability hereof
and thereof may be subject to the effect of (i) any applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or affecting
creditors' rights generally, and (ii) general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law).
(c) No Consents. No consent, approval or authorization of, or
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registration, declaration or filing with any third party, including, but not
limited to, any governmental department, agency, commission or other
instrumentality, will, except such consents, if any, delivered or obtained on or
prior to the Closing, be obtained or made by JRT and JRC prior to the Closing to
authorize the execution, delivery and performance by JRT and JRC of this
Agreement or the Other Agreements.
(d) No Contracts, Arrangements, Understandings or Relationships
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With Respect to Securities of JRC. There are no contracts, arrangements,
------------------------------------
understandings or relationships (legal or otherwise) among any of the parties to
this Agreement, or any other person with respect to any other securities of JRC,
including but not limited to transfer or voting of any of securities of JRC,
finder's fees, joint ventures, loan or option arrangements, puts or calls,
guarantees of profits, division of profits or loss, or the giving or withholding
of proxies, naming the persons with whom such contracts, arrangements,
understandings or relationships have been entered into.
(e) JRT's and JRC's Representations and Warranties True and
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Complete. All representations and warranties of JRT and JRC in this Agreement
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and the Other Agreements are true, accurate and complete in all material
respects as of the Closing.
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(f) No Knowledge of the Sellers' Default. JRT and JRC have no
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knowledge that any of the Sellers' representations and warranties contained in
this Agreement is untrue, inaccurate or incomplete in any respect or that the
Sellers are in default under any term or provision of this Agreement or the
Other Agreements.
(g) No Untrue Statements. No representation or warranty by JRT
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and JRC in this Agreement or in any writing furnished or to be furnished
pursuant hereto, contains or will contain any untrue statement of a material
fact, or omits, or will omit to state any material fact required to make the
statements herein or therein contained not misleading.
(h) Reliance. The foregoing representations and warranties are
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made by JRT and JRC with the knowledge and expectation that the Sellers are
placing complete reliance thereon.
6. Actions of MTT Pending the Closing. The Sellers agree that from the
-------------------------------------
date hereof through the Closing:
(a) Operations. The Sellers will use their best efforts to cause
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MTT to (i) be operated in keeping with its customary practices and in compliance
with all applicable laws, rules and regulations; and (ii) not engage in any
transaction or make any commitment or expenditure.
(b) No Change in Corporate Charter. No change will be made in the
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Certificate of Formation or the Limited Liability Company Agreement of MTT,
except as may be first approved in writing by JRT and JRC.
(c) No Change in Interest. No change will be made in the
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authorized or issued limited liability interest in MTT, including the issuance
of any bonds, notes, or other securities.
(d) No Default. MTT shall timely pay and/or not suffer any
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default with respect to any of its contracts, commitments or obligations. MTT
shall also continue to pay as they become due all accounts payable of MTT.
(e) No Contracts. No contract or commitment will be entered into
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by or on behalf of MTT.
(f) No Liabilities. MTT shall not incur any obligation or
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liability, except as may be first approved in writing by JRT and JRC.
(g) Access to Records. The Sellers shall cause MTT to afford JRT
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and JRC access, during normal business hours, to all of its business operations,
properties, books, files, and records, and will cooperate in JRT's and JRC's
examination thereof. No such examination, however, shall constitute a waiver or
relinquishment by JRT and JRC of their right to rely upon the Sellers'
covenants, representations, and warranties made herein or pursuant hereto.
Until the Closing hereunder or the termination of this Agreement, whichever
shall occur first, and after the termination of this Agreement in the event this
Agreement does not close, JRT and JRC will hold in confidence all information so
obtained by JRT and JRC as a result of such examination.
(h) Compliance. The Sellers shall cause MTT and its officers and
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employees to comply with all applicable provisions of this Agreement.
7. Conditions Precedent to Obligations of JRT and JRC. All obligations
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of JRT and JRC under this Agreement are subject to the fulfillment, prior to or
at the Closing, of the following conditions:
(a) Representations and Warranties True at the Closing. The
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representations and warranties of the Sellers herein shall be deemed to have
been made again as of the Closing, and then be true and correct, subject to any
changes contemplated by this Agreement. The Sellers shall have performed all of
the obligations to be performed by them hereunder on or prior to the Closing.
(b) Proof of Authority. JRT's and JRC's counsel shall have
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received evidence reasonably sufficient to such counsel that the Sellers have
all requisite authorizations necessary for consummation by the Sellers
5
of the transactions contemplated hereby, and there has not been issued, and
there is not in effect, any injunction or similar legal order prohibiting or
restraining consummation of any of the transactions herein contemplated, and no
legal or governmental action, proceeding or investigation which might reasonably
be expected to result in any such injunction or order is pending.
(c) Deliveries at the Closing. The Sellers shall have delivered to
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JRT and JRC at the Closing all of the documents required to be delivered
hereunder.
(d) Certification. The Sellers shall have delivered to JRT and
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JRC at the Closing a certificate dated as of the Closing executed by the
Sellers, certifying that the conditions specified in subparagraphs (a), (b), and
(c) of this Paragraph 7 have been fulfilled.
(e) Resignations of Directors and Officers. The Sellers shall
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have delivered to JRT and JRC at the Closing, the written resignations of all of
the directors and officers, or members and managers, of MTT, as may be
applicable.
(f) Status of Litigation. With respect to any matters affecting
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MTT and in litigation as described in Attachment C, JRT and JRC shall have the
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right to make an independent review of such matters. If JRT and JRC are not
satisfied with such review, then JRT and JRC shall have the option to terminate
this Agreement pursuant to the terms of this Paragraph 7.
(g) Corporate Records, etc. The Sellers shall have delivered to
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JRT and JRC the originals of the Certificate of Formation, Limited Liability
Company Agreement, minute books, and other corporate governance materials used
since the inception of MTT.
(h) Other Matters. All corporate and other proceedings and
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actions taken in connection with the transactions contemplated hereby and all
certificates, opinions, agreements, instruments and documents mentioned herein
or incident to any such transaction shall be satisfactory in form and substance
to JRT and JRC and their counsel, whose approval shall not be unreasonably
withheld.
(i) MTT-Kisnet Agreement. All necessary actions have been taken
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and all necessary approvals have been obtained by Khan and/or MTT prior to the
Closing in order to ensure that all of the rights and obligations of MTT and
Kisnet Corporation, Inc. under the KISNET-MTT STEPS Distribution Agreement
continue without any modification or interruption immediately following the
Closing.
(j) Non-Competition Agreement. JRT and Khan shall have entered
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into a non-competition agreement for a period of one year following the Closing
in the form described in Attachment E hereto.
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8. Conditions Precedent to Obligations of the Sellers. All obligations
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of the Sellers under this Agreement are subject to the fulfillment, prior to or
at the Closing, of the following conditions:
(a) Representations and Warranties True at Closing. The
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representations and warranties of JRT and JRC herein shall be deemed to have
been made again at the Closing, and then be true and correct, subject to any
changes contemplated by this Agreement. JRT and JRC shall have performed all of
the obligations to be performed by JRT and JRC hereunder on or prior to the
Closing.
(b) Proof of Authority. The Sellers' counsel shall have received
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evidence reasonably sufficient to such counsel that JRT and JRC has all
requisite authorizations necessary for consummation by JRT and JRC of the
transactions contemplated hereby, and there has not been issued, and there is
not in effect, any injunction or similar legal order prohibiting or restraining
consummation of any of the transactions herein contemplated, and no legal or
governmental action, proceeding or investigation that might reasonably be
expected to result in any such injunction or order is pending.
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(c) Certification. JRT and JRC shall have delivered to the
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Sellers at the Closing a certificate dated as of the applicable closing,
executed by the President and Secretary of JRT and JRC, certifying that the
conditions specified in subparagraphs (a) and (b) of this Paragraph 8 have been
fulfilled.
(d) No Orders. There has not been issued, and there is not in
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effect, any injunction or similar legal order prohibiting or restraining
consummation of any of the transactions herein contemplated, and no legal or
governmental action, proceeding or investigation which might reasonably be
expected to result in any such injunction or order is pending.
(e) Other Matters. All corporate and other proceedings and
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actions taken in connection with the transactions contemplated hereby and all
certificates, opinions, agreements, instruments and documents mentioned herein
or incident to any such transaction shall be satisfactory in form and substance
to the Sellers and their counsel, whose approval shall not be unreasonably
withheld.
9. The Nature and Survival of Representations, Covenants and
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Warranties. All statements and facts contained in any memorandum, certificate,
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instrument, or other document delivered by or on behalf of the parties hereto
for information or reliance pursuant to this Agreement, shall be deemed
representations, covenants and warranties by the parties hereto under this
Agreement. All representations, covenants and warranties of the parties shall
survive the Closing and all inspections, examinations, or audits on behalf of
the parties, shall expire one year following the Closing.
10. Indemnification by the Sellers. The Sellers agree to indemnify and
---------------------------------
hold harmless JRT and JRC and/or MTT against and in respect to all damages (as
hereinafter defined) in excess of $500.00. Damages, as used herein shall
include any claim, salary, wage, action, tax, demand, loss, cost, expense,
liability (joint or several), penalty, and other damage, including, without
limitation, counsel fees and other costs and expenses reasonably incurred in
investigating or attempting to avoid same or in opposition to the imposition
thereof, or in enforcing this indemnity, resulting to JRT and JRC and/or MTT
from any inaccurate representation made by or on behalf of the Sellers in or
pursuant to this Agreement, breach of any of the warranties made by or on behalf
of the Sellers in or pursuant to this Agreement, or breach or default in the
performance by the Sellers of any of the obligations to be performed by them
hereunder. Hereunder, JRT and JRC shall determine whether JRT and JRC, MTT or
JRT and JRC and MTT are entitled to be indemnified and such determination shall
be binding on the Sellers.
Notwithstanding the scope of the Sellers' representations and warranties
herein, or of any individual representation or warranty, or any disclosure to
JRT and JRC herein or pursuant hereto, or the definition of damages contained in
the preceding sentence, or JRT's and JRC's knowledge of any fact or facts at or
prior to the Closing, damages shall also include: all debts, liabilities, and
obligations of any nature whatsoever (whether absolute, accrued, contingent, or
otherwise, and whether due or to become due) of MTT, as of the date hereof not
reflected in the Financial Statement or any other exhibit furnished hereunder,
whether known or unknown by the Sellers; all claims, actions, demands, losses,
costs, expenses, and liabilities resulting from any litigation from causes of
action arising prior to the Closing hereunder involving MTT or any owners
thereof other than the Sellers, whether or not disclosed to JRT and JRC; all
claims, actions, demands, losses, costs, expenses, liabilities and penalties
resulting from (i) MTT's infringement or claimed infringement upon or acting
adversely to the rights or claimed rights of any person under or in respect to
any copyrights, trademarks, trademark rights, patents, patent rights or patent
licenses; or (ii) any claim or pending or threatened action with respect to the
matters described in clause (i); all claims, actions, demands, losses, costs,
expenses, liabilities or penalties resulting from MTT's failure in any respect
to perform any obligation required by it to be performed at or prior to the
effective date hereof or at or prior to the Closing, or by reason of any default
of MTT, at the effective date hereof or at the Closing, under any of the
contracts, agreements, leases, documents, or other commitments to which it is a
party or otherwise bound or affected; and all losses, costs, and expenses
(including without limitation all fees and disbursements of counsel) relating to
damages.
Khan shall reimburse and/or pay in the form of up to 10,000,000 shares of
JRC Common Stock on behalf of JRT and JRC and/or MTT on demand for any payment
made or required to be made by JRT and JRC and/or MTT at any time after the
Closing based upon the judgment of any court of competent jurisdiction or
pursuant to a bona fide compromise or settlement of claims, demands or actions,
in respect to the damages to which the foregoing indemnity relates. JRT and JRC
shall give, or JRT and JRC shall cause MTT to give Khan written notice within 30
7
days after notification of any litigation threatened or instituted against MTT
which might constitute the basis of a claim for indemnity by JRT and JRC and/or
MTT against Khan.
Notwithstanding anything contained in this Agreement to the contrary, the
right to indemnification described in this paragraph shall expire one year after
the Closing hereunder, except in the case of the proven fraud by the Sellers
hereunder as determined by a court of competent jurisdiction in connection with
any such claim for indemnification, in which event such right to indemnification
shall expire one year after the discovery of such fraud.
11. Indemnification by JRT and JRC. JRT and JRC agree to indemnify and
-- ------------------------------
hold harmless the Sellers against and in respect to all damages (as hereinafter
defined) in excess of $500.00. Damages, as used herein shall include any claim,
salary, wage, action, tax, demand, loss, cost, expense, liability (joint or
several), penalty, and other damage, including, without limitation, counsel fees
and other costs and expenses reasonably incurred in investigating or attempting
to avoid same or in opposition to the imposition thereof, or in enforcing this
indemnity, resulting to the Sellers from any inaccurate representation made by
or on behalf of JRT and JRC in or pursuant to this Agreement, breach of any of
the warranties made by or on behalf of JRT and JRC in or pursuant to this
Agreement, or breach or default in the performance by JRT and JRC of any of the
obligations to be performed by them hereunder.
JRT and JRC shall reimburse and/or pay on behalf of Khan on demand for any
payment made or required to be made by Khan at any time after the Closing based
upon the judgment of any court of competent jurisdiction or pursuant to a bona
fide compromise or settlement of claims, demands or actions, in respect to the
damages to which the foregoing indemnity relates.
Notwithstanding anything contained in this Agreement to the contrary, the
right to indemnification described in this paragraph shall expire one year after
the Closing hereunder, except in the case of the proven fraud by JRT and JRC
hereunder as determined by a court of competent jurisdiction in connection with
any such claim for indemnification, in which event such right to indemnification
shall expire one year after the discovery of such fraud.
12. Records of MTT. For a period of five years following the Closing,
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the books of account and records of MTT pertaining to all periods prior to the
Closing shall be available for inspection by Khan for use in connection with tax
audits.
13. Default by JRT and JRC. If the Sellers do not default hereunder and
------------------------
JRT and JRC default hereunder and fail to pay to the Sellers any portion of the
purchase price for the MTT interest as described herein, the Sellers may assert
any remedy, including specific performance, which the Sellers may have by reason
of any such default. From and after the Closing, subject to the terms and
provisions hereof, in the event of a breach by any party of the terms of this
Agreement or any obligation of a party which survives the Closing hereunder, the
non-defaulting party may assert any remedy, either at law or in equity to which
such non-defaulting party may be entitled.
14. Default by the Sellers. If JRT and JRC do not default hereunder
-------------------------
and the Sellers default hereunder, JRT and JRC may elect to terminate this
Agreement as well as any other agreement executed by JRT and JRC in connection
with the transactions contemplated by this Agreement, including but not limited
to any independent nondisclosure agreement or any other independent agreements,
whereupon no party shall be liable to the others hereunder, or JRT and JRC may
assert any remedy, including specific performance, which JRT and JRC may have by
reason of any such default of the Sellers. From and after the Closing, subject
to the terms and provisions hereof, in the event of a breach by any party of the
terms of this Agreement or any obligation of a party which survives the Closing
hereunder, the non-defaulting party may assert any remedy, either at law or in
equity, to which such non-defaulting party may be entitled.
15. Termination. In the event of the termination of this Agreement
-----------
prior to the Closing, no party shall have any obligation to any other in
connection herewith or in connection with any other documents which may have
been executed by any party with respect to the transactions contemplated by this
Agreement whether or not such documents are described herein.
8
16. Cooperation. JRT and JRC and the Sellers will each cooperate with
-----------
the other, at the other's request and expense, in furnishing information,
testimony, and other assistance in connection with any actions, proceedings,
arrangements, disputes with other persons or governmental inquiries or
investigations involving the Sellers' or JRT's and JRC's conduct of the Business
or the transactions contemplated hereby.
17. Further Conveyances and Assurances. After the Closing, Khan and
-------------------------------------
JRT and JRC, each, will, without further cost or expense to, or consideration of
any nature from the other, execute and deliver, or cause to be executed and
delivered, to the other, such additional documentation and instruments of
transfer and conveyance, and will take such other and further actions, as the
other may reasonably request as more completely to sell, transfer and assign to
and fully vest in JRT and JRC ownership of MTT interest and to consummate the
transactions contemplated hereby.
18. Deliveries at the Closing by the Sellers. At the Closing:
----------------------------------------------
(a) Khan shall deliver to JRT certificates representing all of the
interests in MTT, duly endorsed in favor of JRT.
(b) The Sellers shall deliver the proof of authority described in
Paragraph 7(b) hereof.
(c) The Sellers shall deliver the certification described in
Paragraph 7(d) hereof.
(d) The Sellers shall deliver the resignations of all of the
directors and officers of MTT.
(e) Khan shall deliver the Non-Competition Agreement described in
Paragraph 7(l) hereof.
(f) Khan shall deliver the corporate records of MTT.
(g) The Sellers shall deliver any other document which may be
necessary to carry out the intent of this Agreement.
All documents reflecting any actions taken, received or delivered by the
Sellers pursuant to this Paragraph 18 shall be reasonably satisfactory in form
and substance to JRT and JRC and their counsel.
19. Deliveries at the Closing by JRT and JRC. At the Closing JRT and
---------------------------------------------
JRC shall deliver to Khan:
(a) The obligation by JRC to issue certificates representing
20,000,000 shares of the JRC Common Stock, as soon as such shares become
available after the amendment to the articles of incorporation of JRC, duly
endorsed in favor of Khan free and clear of all liens, claims, encumbrances, and
restrictions of every kind, except those imposed by the Securities Act and other
applicable securities laws.
(b) The proof of authority described in Paragraph 8(b) hereof.
(c) The certification described in Paragraph 8(c) hereof.
(d) JRT shall deliver the Non-Competition Agreement described in
Paragraph 7(l) hereof.
(e) JRT and JRC shall deliver any other document which may be
necessary to carry out the intent of this Agreement.
All documents reflecting any actions taken, received or delivered by JRT
and JRC pursuant to this Paragraph 20 shall be reasonably satisfactory in form
and substance to the Sellers and their counsel.
20. No Assignment. This Agreement shall not be assignable by any party
-------------
without the prior written consent of the other parties, which consent shall be
subject to such parties' sole, absolute and unfettered discretion.
9
21. Additional Agreement. Following the Closing, ▇▇▇▇▇▇ ▇▇▇▇▇▇ will be
--------------------
elected the Chairman of the Board of JRT, responsible for sales and marketing,
and Khan will be elected as a member of the board and President and Chief
Executive Officer of JRT, responsible for product delivery and strategic
alliances.
22. Brokerage. The Sellers and JRT and JRC agree to indemnify and hold
---------
harmless each other against, and in respect of, any claim for brokerage or other
commissions relative to this Agreement, or the transactions contemplated hereby,
based in any way on agreements, arrangements, understandings or contracts made
by either party with a third party or parties whatsoever.
23. Attorney's Fees. In the event that it should become necessary for
----------------
any party entitled hereunder to bring suit against any other party to this
Agreement for enforcement of the covenants contained in this Agreement, the
parties hereby covenant and agree that the party or parties who are found to be
in violation of said covenants shall also be liable for all reasonable
attorney's fees and costs of court incurred by the other party or parties that
bring suit.
24. Benefit. All the terms and provisions of this Agreement shall be
-------
binding upon and inure to the benefit of and be enforceable by the parties
hereto, and their respective heirs, executors, administrators, personal
representatives, successors and permitted assigns.
25. Construction. Words of any gender used in this Agreement shall be
------------
held and construed to include any other gender, and words in the singular number
shall be held to include the plural, and vice versa, unless the context requires
otherwise.
26. Waiver. No course of dealing on the part of any party hereto or
------
its agents, or any failure or delay by any such party with respect to exercising
any right, power or privilege of such party under this Agreement or any
instrument referred to herein shall operate as a waiver thereof, and any single
or partial exercise of any such right, power or privilege shall not preclude any
later exercise thereof or any exercise of any other right, power or privilege
hereunder or thereunder.
27. Cumulative Rights. The rights and remedies of any party under this
------------------
Agreement and the instruments executed or to be executed in connection herewith,
or any of them, shall be cumulative and the exercise or partial exercise of any
such right or remedy shall not preclude the exercise of any other right or
remedy.
28. Invalidity. In the event any one or more of the provisions
----------
contained in this Agreement or in any instrument referred to herein or executed
in connection herewith shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect the other provisions of this Agreement or any such other
instrument.
29. Time of the Essence. Time is of the essence of this Agreement.
----------------------
30. Multiple Counterparts. This Agreement may be executed in one or
----------------------
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
31. Controlling Agreement. In the event of any conflict between the
----------------------
terms of this Agreement or exhibits referred to herein, the terms of this
Agreement shall control.
32. Law Governing. This Agreement shall be construed and governed by
--------------
the laws of the State of New York, and all obligations hereunder shall be deemed
performable in Pleasantville, New York.
33. Republication and Ratification. The Sellers and JRT hereto do
--------------------------------
hereby republish and ratify this Agreement as amended hereby.
34. Entire Agreement. This instrument and the attachments hereto
-----------------
contain the entire understanding of the parties and may not be changed orally,
but only by an instrument in writing signed by the party against whom
enforcement of any waiver, change, modification, extension, or discharge is
sought.
10
IN WITNESS WHEREOF, this Agreement has been executed in multiple
counterparts on the date first written above.
--------------------------------------------------
▇▇▇ ▇▇▇▇
MULTITRADE TECHNOLOGIES LLC
By
------------------------------------------------
▇▇▇ ▇▇▇▇, Managing Partner
▇▇▇▇▇▇▇ RIVERS TECHNOLOGIES
By
------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇, President
THE ▇▇▇▇▇▇▇ RIVERS COMPANY
By
------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇, President
Attachments:
-----------
Attachment A Liabilities of MTT
Attachment B Acquired Assets
Attachment C Litigation
Attachment D Contracts of MTT which are in Default
Attachment E Non-Competition Agreement between JRT and ▇▇▇ ▇▇▇▇
11
ATTACHMENT A
LIABILITIES OF MTT
NONE.
ATTACHMENT B
ASSETS OF MTT
KISNET - MTT / EXCLUSIVE DISTRIBUTION AGREEMENT FOR "STRAIGHT THROUGH ENTERPRISE
PROCESSING SOLUTION"
(OR STEPS)
ATTACHMENT C
LITIGATION
NONE.
ATTACHMENT D
CONTRACTS OF MTT WHICH ARE IN DEFAULT
NONE.
ATTACHMENT E
NON-COMPETITION AGREEMENT
THIS AGREEMENT is made this 24th day of February, 2004, by and between ▇▇▇
▇▇▇▇ ("Khan"), and ▇▇▇▇▇▇▇ RIVERS TECHNOLOGIES, a Florida corporation, having
its principal place of business in Buffalo, New York (the "Company").
WHEREAS, this Agreement is being entered into pursuant to the provisions of
that certain LLC Interest Purchase Agreement dated February 24, 2004 by and
between Khan, Multitrade Technologies LLC ("MTT") and the Company (the "LLC
Interest Purchase Agreement"); and
WHEREAS, the execution and delivery of this Agreement by Khan and the
Company is a condition precedent to the consummation of the transactions
contemplated in the LLC Interest Purchase Agreement;
NOW, THEREFORE, in consideration of the foregoing and the following mutual
covenants and agreements, the parties hereto do hereby agree as follows:
1. Payment to Khan. Contemporaneously with the execution and delivery
---------------
of this Agreement, and in full and final payment of all obligations of the
Company to Khan hereunder, there has been paid to Khan the sum of
$_________________, the receipt and sufficiency of which are hereby acknowledged
by Khan.
2. Covenant Not to Compete. It is recognized by Khan that the Acquired
--------------------------
Business of MTT pursuant to the LLC Interest Purchase Agreement, and the Company
and its affiliated corporations that provide similar products and services are
and will continue to be international in scope and that geographical limitations
on the below described covenant not to compete and the non-solicitation covenant
are therefore not appropriate. Consequently, for a period of one year from the
date hereof, on a world-wide basis, Khan shall not:
(a) Canvas, solicit, or accept any business for any other person,
partnership, firm, corporation or other legal entity from any present or past
customer of MTT or the Company, in connection with any business the same as the
Acquired Business of MTT and the Business of the Company on the date of this
Agreement.
(b) Give any other person, partnership, firm, corporation or other
legal entity the right to canvas, solicit or accept any business for any other
business, from any present or past customer of MTT or the Company, in connection
with any business the same as the Acquired Business of MTT and the Business of
the Company on the date of this Agreement.
(c) Directly or indirectly request or advise any past, present or
future customer of the Company to withdraw, curtail or cancel its business for
any other business, from any present or past customer of MTT or the Company, in
connection with any business the same as the Acquired Business of MTT and the
Business of the Company on the date of this Agreement.
(d) Directly or indirectly disclose to any other person,
partnership, firm, corporation or other legal entity the names of past, present
or future customers of MTT or the Company, in connection with any business the
same as the Acquired Business of MTT and the Business of the Company on the date
of this Agreement.
(e) Directly or indirectly induce, or attempt to influence any
employee of the Company to terminate his employment.
(f) Without the written consent of the Company, directly or
indirectly employ or attempt to employ any person, who, on the date of this
Agreement or at any time during the two years before the date of this Agreement,
is or was an employee the Company, whether full or part-time.
(g) Directly or indirectly own, manage, operate, join or
participate in, or be connected as an officer, director, stockholder, employee,
partner or otherwise with any business under any name similar to
1
Multitrade Technologies LLC in connection with the Acquired Business, or the
name of the Company or any of its affiliated corporations, except as may
otherwise be specifically authorized by the Company in writing.
(h) Directly or indirectly compete with, or become interested in
any competitor of the Company in any business the same as the Acquired Business
of MTT and the Business of the Company on the date of this Agreement.
As used herein, the "Acquired Business" as it relates to MTT shall include,
but not be limited to the _________________
As used herein, the "Business of the Company" shall include, but not be
limited to the business of the Company and The ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Company, Inc., the
parent company of the Company, and its affiliated corporations, as well as the
_________________________
This covenant on the part of Khan shall be construed as an agreement
independent of any other provision of this Agreement and the existence of any
claim or cause of action by Khan against the Company, whether predicated on this
Agreement or otherwise, shall not constitute a defense to the enforcement by the
Company of this covenant.
3. Remedies for Breach. If Khan commits a breach, or threatens to
---------------------
commit a breach, of any of the provisions of this Agreement, the Company shall
have the following rights and remedies, in addition to any others, each of which
shall be independent of the other and severally enforceable:
(a) The right to have the provisions of this Agreement
specifically enforced by any court having equity jurisdiction, it being
acknowledged and agreed that any such breach or threatened breach will cause
irreparable injury to the Company and that money damages will not provide an
adequate remedy to the Company; and
(b) The right and remedy to require Khan to account for and pay
over to the Company all compensation, profits, monies, accruals, increments, or
other benefits (the "Benefits") derived or received by Khan as a result of any
transactions constituting a breach of any of the provisions of this Agreement,
Khan agreeing to account for and pay over the Benefits as provided above.
4. Confidentiality. All information relating to the business and
---------------
affairs of the Company shall be treated as Confidential Information, as
hereinafter defined, by Khan both during and after the term hereof. Except with
the prior approval of the Company, ▇▇▇▇ shall not disclose any of the
Confidential Information at any time to any person except authorized personnel
of the Company and its affiliated corporations. All data, records and written
material prepared or compiled by ▇▇▇▇ or furnished to ▇▇▇▇ during the term
hereof shall be the sole and exclusive property of the Company, and none of such
data, records or written materials, or copies thereof, shall be retained by ▇▇▇▇
after the term of this Agreement.
As used herein, the term "Confidential Information" includes, without
limitation, information and knowledge pertaining to products, inventions,
innovations, designs, ideas, plans, trade secrets, proprietary information,
manufacturing, packaging, advertising, distribution and sales methods and
systems, sales and profit figures, customer and client lists, and relationships
between the Company and its affiliated corporations and dealers, distributors,
customers, clients, suppliers and others who have had or will have had business
dealings with the Company and its affiliated corporations. The term
"Confidential Information" does not include information which (a) becomes
generally available to the public through no wrongful act on the part of ▇▇▇▇,
(b) can be shown to have been previously available to ▇▇▇▇ on a non confidential
basis prior to its disclosure to ▇▇▇▇ by the Company, or its representatives,
(c) becomes available to ▇▇▇▇ on a non confidential basis from a source other
than the Company or its representatives, or (d) is required to be disclosed by
order of a court of competent jurisdiction.
5. Controlling Agreement. In the event of any conflict between the
----------------------
terms of this Agreement, or the LLC Interest Purchase Agreement, the terms of
the LLC Interest Purchase Agreement shall control.
2
6. Construction. Words of any gender used in this Agreement shall be
------------
held and construed to include any other gender, and words in the singular number
shall be held to include the plural, and vice versa, unless the context requires
otherwise. In addition, the pronouns used in this Agreement shall be understood
and construed to apply whether the party referred to is an individual,
partnership, joint venture, corporation or an individual or individuals doing
business under a firm or trade name, and the masculine, feminine and neuter
pronouns shall each include the other and may be used interchangeably with the
same meaning.
7. Waiver. No course of dealing on the part of any party hereto or its
------
agents, or any failure or delay by any such party with respect to exercising any
right, power or privilege of such party under this Agreement or any instrument
referred to herein shall operate as a waiver thereof, and any single or partial
exercise of any such right, power or privilege shall not preclude any later
exercise thereof or any exercise of any other right, power or privilege
hereunder or thereunder.
8. Cumulative Rights. The rights and remedies of any party under this
------------------
Agreement and the instruments executed or to be executed in connection herewith,
or any of them, shall be cumulative and the exercise or partial exercise of any
such right or remedy shall not preclude the exercise of any other right or
remedy.
9. Invalidity. In the event any one or more of the provisions
----------
contained in this Agreement or in any instrument referred to herein or executed
in connection herewith shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect the other provisions of this Agreement or any such other
instrument.
10. Headings. The headings used in this Agreement are for convenience
--------
and reference only and in no way define, limit, simplify or describe the scope
or intent of this Agreement, and in no way effect or constitute a part of this
Agreement.
11. Excusable Delay. None of the parties hereto shall be obligated to
----------------
perform and none shall be deemed to be in default hereunder, if the performance
of a non-monetary obligation is prevented by the occurrence of any of the
following, other than as the result of the financial inability of the party
obligated to perform: acts of God, strikes, lock-outs, other industrial
disturbances, acts of terrorists, acts of a public enemy, wars or war-like
action (whether actual, impending or expected and whether de jure or de facto),
arrest or other restraint of governmental (civil or military) blockades,
insurrections, riots, epidemics, landslides, lightning, earthquakes, fires,
hurricanes, storms, floods, washouts, sink holes, civil disturbances,
explosions, breakage or accident to equipment or machinery, confiscation or
seizure by any government of public authority, nuclear reaction or radiation,
radioactive contamination or other causes, whether of the kind herein
enumerated, or otherwise, that are not reasonably within the control of the
party claiming the right to delay performance on account of such occurrence.
12. No Third-Party Beneficiary. Any agreement to pay an amount and any
----------------------------
assumption of liability herein contained, express or implied, shall be only for
the benefit of the undersigned parties and their respective successors and
permitted assigns (as herein expressly permitted), and such agreements and
assumptions shall not inure to the benefit of the obligees or any other party,
whomsoever, it being the intention of the parties hereto that no one shall be or
be deemed to be a third-party beneficiary of this Agreement.
13. Law Governing. This Agreement shall be construed and governed by
--------------
the laws of the State of Texas, and all obligations hereunder shall be deemed
performable in ________ County, New York.
14. Mediation and Arbitration. All disputes arising or related to this
---------------------------
Agreement must exclusively be resolved first by mediation with a mediator
selected by the parties, with such mediation to be held in Pleasantville, New
York. If such mediation fails, then any such dispute shall be resolved by
binding arbitration under the Commercial Arbitration Rules of the American
Arbitration Association in effect at the time the arbitration proceeding
commences, except that (a) Texas law and the Federal Arbitration Act must govern
construction and effect, (b) the locale of any arbitration must be in
Pleasantville, New York, and (c) the arbitrator must with the award provide
written findings of fact and conclusions of law. Any party may seek from a
court of competent jurisdiction any provisional remedy that may be necessary to
protect its rights or assets pending the selection of the arbitrator or the
arbitrator's determination of the merits of the controversy. The exercise of
such arbitration rights by any party will not preclude the exercise of any
self-help remedies (including without limitation, setoff rights) or the
3
exercise of any non-judicial foreclosure rights. An arbitration award may be
entered in any court having jurisdiction.
15. Attorneys' Fees. In the event that it should become necessary for
----------------
any party entitled hereunder to bring suit (including, but not limited to, any
mediation or arbitration) against the other party to this Agreement for a breach
of this Agreement, the parties hereby covenant and agree that the party who is
found to be in breach of this Agreement shall also be liable for all reasonable
attorneys' fees and costs of court incurred by the other party. Provided,
however, in the event that there has been no breach of this Agreement, whether
or not the transactions contemplated hereby are consummated, each party shall
bear its own costs and expenses (including any fees or disbursements of its
counsel, accountants, brokers, investment bankers, and finder's fees.
16. Assignment. This Agreement shall be binding upon and inure to the
----------
benefit of the successors of each of the parties hereto, but shall not be
assignable by either party without the prior written consent of the other party,
which consent shall be subject to such party's sole, absolute and unfettered
discretion.
17. Notices. All notices, requests, demands, and other communications
-------
hereunder shall be in writing and delivered personally or sent by registered or
certified United States mail, return receipt requested with postage prepaid, by
facsimile, or by e-mail, if to Khan, addressed to ▇▇. ▇▇▇ ▇▇▇▇ at ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇, telecopier ▇▇▇-▇▇▇-▇▇▇▇, and e-mail
▇▇▇.▇▇▇▇@▇▇▇▇▇▇.▇▇▇; and if to the Company, addressed to ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ at
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Technologies, ▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, telecopier (▇▇▇) ▇▇▇-▇▇▇▇, and e-mail ▇▇▇▇▇▇▇@▇▇▇.▇▇▇. Any party hereto
may change its address upon 10 days' written notice to any other party hereto.
18. Multiple Counterparts. This Agreement may be executed in one or
----------------------
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
19. Entire Agreement. This instrument contains the entire Agreement of
-----------------
the parties with respect to the subject matter hereof, and may not be changed
orally, but only by an instrument in writing signed by the party against whom
enforcement of any waiver, change, modification, extension, or discharge is
sought.
IN WITNESS WHEREOF, this Agreement has been executed on the date first
written above.
--------------------------------------
▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ TECHNOLOGIES
By
------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇, President
4