EXHIBIT 8.2.
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PURCHASE AGREEMENT
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THIS PURCHASE AGREEMENT (this "Agreement") is entered into as of May
____, 2005, among MTEL Communications, Inc., a Florida corporation ("Seller"),
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇") and ▇▇▇▇▇▇ Beaumont, Inc., a Nevada corporation
("Buyer"), with reference to the following.
R E C I T A L S
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A. Seller and Buyer have entered into a binding letter of intent dated
April 1, 2005 (the "Letter") concerning the purchase and sale of certain assets
of Seller
. Buyer, ▇▇▇▇▇▇▇ and Seller now desire to enter into this Agreement to
set forth the terms under which Seller shall sell and Buyer shall purchase
certain assets of Seller.
B. Concurrent with the closing of the purchase and sale of the assets
of Seller, Buyer contemplates engaging ▇▇▇▇▇▇▇ as a consultant.
A G R E E M E N T
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NOW, THEREFORE, in consideration of the foregoing premises, the
provisions set forth herein and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows.
1. PURCHASE AND SALE. Subject to the terms and conditions of this Agreement,
effective upon the Closing, as defined below, Seller shall sell, transfer,
convey, assign and deliver to Buyer, and Buyer shall purchase and acquire from
Seller, each of the assets described in SCHEDULE "1" attached hereto
(collectively, the "Assets"), in good working order, free and clear of any and
all claims, liens, pledges, options, charges, security interests, restrictions,
encumbrances or other rights of third parties, of any kind or nature
(collectively, "Encumbrances"). Seller shall pay any sales or use taxes arising
out of the sale of the Assets to Buyer.
2. NO ASSUMPTION OF LIABILITIES. Buyer shall not assume or be liable or
responsible for any liabilities, obligations or commitments of Seller or ▇▇▇▇▇▇▇
and all such liabilities, obligations and commitments shall remain the exclusive
liabilities, obligations and commitments of Seller or ▇▇▇▇▇▇▇, as applicable.
3. THE PURCHASE PRICE. In and as consideration for the purchase of the Assets.
Buyer shall pay to Seller an aggregate purchase price (the "Purchase Price") of
xxx Thousand Dollars ($xxx,xxx) and xxx Three Thousand Six Hundred Thirty Six
(xxx,xxx) shares of restricted common stock paid as follows.
(a) PAYMENT IN CASH. Two Hundred Thousand Dollars ($xxx,xxx)
cash (the "Cash Consideration") to be paid as follows:
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(i) xx Thousand Dollars ($xx,xxx) at the Closing;
(ii) xx Thousand Dollars ($xx,xxx) thirty (30) days
after the Closing;
(iii) xx Thousand Dollars ($xx,xxx) sixty (60) days
after the Closing; and
(iv) xx Thousand Dollars ($xx,xxx) ninety (90) days
after the Closing.
(b) PAYMENT IN STOCK. Eight Hundred Sixty Three Thousand Six
Hundred Thirty Six (xxx,xxx) shares of Buyer's restricted common stock shall be
delivered to Seller.
(c) COMMISSION ON SALES. In addition to the commissions
described in Paragraph 3(d), in the event that the prepaid calling card products
introduced by Buyer produce revenue within any one (1) of Buyer's 2005 fiscal
quarters equal to Five Hundred Thousand ($500,000), with a gross profit of at
least twelve percent (12%), Seller shall be entitled to a bonus of Twenty Five
Thousand Dollars ($25,000). This bonus can be earned by Seller in any of Buyer's
2005 fiscal quarters (i.e. if Seller met the above conditions in 3 separate
fiscal quarters, the bonus earned would be Seventy-Five Thousand Dollars
($75,000)). Any bonus earned within a particular 2005 fiscal quarter shall be
paid by Buyer to Seller within fifteen (15) business days after the end of such
fiscal quarter.
(d) ADDITIONAL STOCK. In the event that Buyer fails to
release a ▇▇▇▇▇▇ Beaumont or MTEL re-loadable phone card and/or phone/debit card
within one hundred twenty (120) days of the execution of this Agreement, Buyer
will be obligated to issue to Seller an additional xxxxxx Three (xxxxxx) shares
of Buyer's restricted common stock (the "Additional Stock Consideration").
4. INTELLECTUAL PROPERTY RIGHTS. At the Closing, Seller shall assign, transfer
and convey to Buyer all of Seller's intellectual property rights listed in
SCHEDULE "1" and shall evidence such transfer by executing and delivering to
Seller an Assignment of Intellectual Property Rights (the "Assignment") in the
form attached hereto as EXHIBIT "A".
5. ▇▇▇▇ OF SALE. At the Closing, Seller shall deliver to Buyer a ▇▇▇▇ of Sale in
substantially the form attached hereto as EXHIBIT "B" (the "▇▇▇▇ of Sale") and
such other duly executed instruments of transfer as may be reasonably necessary
to transfer to Buyer all of Seller's right, title and interest in and to the
Assets.
6. CLOSING. The Closing of the purchase and sale of the Assets (the "Closing")
shall take place on or before 5:00 p.m. (EST) on May 15, 2005 (the "Closing
Date") or upon such later date as agreed to be Seller and Buyer.
7. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER. Seller and ▇▇▇▇▇▇▇,
jointly and severally, represent, warrant and covenant to Buyer that the
following statements are true, complete and not misleading.
(a) ORGANIZATION, EXISTENCE AND AUTHORITY. The Seller
corporation is duly incorporated, validly existing and in good standing under
the laws of the State of Florida. Seller has the requisite corporate power and
authority to enter into this Agreement, to perform its obligations hereunder and
to consummate the transactions contemplated hereby.
(b) DUE EXECUTION AND DELIVERY; BINDING OBLIGATIONS. This
Agreement has been duly executed and delivered by Seller and ▇▇▇▇▇▇▇. This
Agreement constitutes a legal, valid and binding agreement of Seller and
▇▇▇▇▇▇▇, enforceable against Seller and ▇▇▇▇▇▇▇ in accordance with its terms.
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(c) NO CONFLICT OR VIOLATION. Neither the execution and
delivery of this Agreement by Seller or ▇▇▇▇▇▇▇, nor the consummation of the
transactions contemplated hereby, will result in (i) a violation of, or a
conflict with, the charter documents of Seller or any shareholders' agreement or
similar agreement or understanding to which Seller is bound, (ii) a violation by
Seller or ▇▇▇▇▇▇▇ of any applicable law, statute, code, ordinance, rule,
regulation or order, whether federal, state, local or other (individually, a
"Law" and collectively, "Laws"), (iii) a violation by Seller of any order,
judgment, writ, injunction, decree or award to which Seller or ▇▇▇▇▇▇▇ are a
party or to which Seller or ▇▇▇▇▇▇▇ are otherwise subject, (iv) an imposition of
an encumbrance on any of the Assets, (v) violate, conflict with, result in a
breach or termination of, constitute a default under or give rise to a right to
terminate, amend, cancel or accelerate (or an event which, with notice or lapse
of time or both, would constitute the same) any agreement, license, commitment,
note, bond, deed of trust, indenture, lease, mortgage or other instrument to
which Seller or ▇▇▇▇▇▇▇ are a party or by which any of their properties or
assets is bound, or (vi) conflict with, or breach or violation of any terms,
conditions, representations, warranties or obligations made by Seller or ▇▇▇▇▇▇▇
to any third party.
(d) CONSENTS AND APPROVALS. No consent, permit, approval or
authorization of, or declaration, filing, application, transfer or registration
with, any governmental or regulatory authority, or any other person or entity is
required to be made or obtained by Seller by virtue of the execution, delivery
or performance of this Agreement or the consummation of the transactions
contemplated hereby or to avoid any contract by which the Assets are bound or
affected or the creation of an encumbrance on the Assets.
(e) NO ACTIONS OR PROCEEDINGS; COMPLIANCE WITH LAWS. There are
no pending or, to the knowledge of Seller or ▇▇▇▇▇▇▇, threatened actions,
claims, lawsuits, proceedings, arbitrations, mediations or other disputes
(collectively, "Actions"), whether private or public, affecting the Assets or
which could reasonably be expected to affect the enforceability of this
Agreement or the ability of Seller or ▇▇▇▇▇▇▇ to consummate the transactions
contemplated by this Agreement or for Buyer to use the Assets for their intended
purpose. Neither Seller or ▇▇▇▇▇▇▇ have received any notice from, or otherwise
been advised that, any governmental authority or other person is claiming any
violation or potential violation of any Law that would affect the Assets.
(f) INTELLECTUAL PROPERTY. Seller owns, has a license for, or
otherwise possesses legally enforceable rights to use all trademarks, trade
names, service marks and copyrights, any applications for and registrations of
such patents, unregistered trademarks, trade names, service marks and copyrights
and all processes, methods, designs, patterns, trade secrets, know-how, programs
code, software and all other tangible or intangible proprietary information and
intellectual property included or used in the operation of the Assets. There are
no outstanding licenses or agreements of any kind (i) relating to Seller's grant
of any of its rights, title and interest in and to any of such rights or (ii)
requiring Seller to pay any licensing fee or make any royalty payment with
respect to the Assets or any such rights. Seller has not received any
communication alleging that it has violated any of the proprietary rights of any
other person or entity.
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(g) RESTRICTIONS ON USE OF ASSETS. There is no agreement,
judgment, injunction, order or decree binding upon Seller or ▇▇▇▇▇▇▇ which has
or could reasonably be expected to have the effect of prohibiting or impairing
the use by Buyer of the Assets, and Seller and ▇▇▇▇▇▇▇ shall not take or permit
any action which would impair Buyer's rights to the Assets.
(h) CONTINUITY OF OPERATIONS. Seller shall continue as a going
concern, preserve its corporate existence, pay its debts and obligations as they
become due and not take or permit any action which would or could impair its
ability to fulfill its obligations hereunder.
(i) COMPLIANCE LAWS. Seller has at all times, to the best of
Seller's knowledge, owned and operated the business, and otherwise carried on
and conducted its business, in material compliance with all federal, foreign,
state and local laws, ordinances, rules and regulations (including, but not
limited to, all laws, ordinances, rules and regulations relating to health,
safety and labeling of products; health and safety; equal employment
opportunities; environmental, wages and hours of employment; pricing; and sales
and distribution of products). To the best of Seller's and ▇▇▇▇▇▇▇'▇ knowledge,
Seller has not violated any copyright or trademark.
(j) LICENSES, PERMITS AND ORDERS. SCHEDULE "2" contains a list
of all material qualifications, registrations, filings, approvals,
authorizations, consents, licenses, orders or other permits of all governmental
agencies, whether federal, state, or local, owned, held or utilized by Seller in
the operation of the Assets. To the knowledge of Seller and ▇▇▇▇▇▇▇, all such
qualifications, registrations, filings, approvals, authorizations, consents,
licenses, orders and other permits constitute the only approvals,
authorizations, consents, licenses, orders and permits which are required by
Seller to operate sell prepaid phone cards and utilize the Assets. Seller will
cooperate with and assist Buyer with respect to transferring, acquiring or
licensing all such qualifications, registrations, filings, approvals,
authorizations, consents, licenses, orders or other permits necessary to utilize
the Assets. Seller will also cooperate with Buyer for the purpose of securing
the transfer of all such licenses, permits and orders which are transferable to
Buyer.
(k) TAX MATTERS. Seller has duly filed all federal, state,
county and local tax returns required to be filed on behalf of or related to the
Assets, including those with respect to income, withholding, Social Security,
unemployment, franchise, excise, sales and use taxes, and has paid in full all
taxes, interest, penalties, assessments or deficiencies shown to be due on such
returns and reports or claimed to be due on such tax returns and reports. No
claims for additional taxes are pending or, to the knowledge of Seller,
threatened with respect thereto which would affect the Assets or the transfer
thereof to Buyer.
(l) DISCLOSURE AND RELIANCE. Seller and ▇▇▇▇▇▇▇ have disclosed
to Buyer all facts material to the transactions contemplated in this Agreement.
None of the information, documents, certificates or instruments furnished or to
be furnished by Seller, ▇▇▇▇▇▇▇ or any of their representatives, to Buyer or any
of its representatives in connection with this Agreement or otherwise in
connection with the transactions contemplated hereby are false or misleading in
any material respect or contain any material misstatement of fact or omit to
state any material facts required to be stated to make the statements therein
not misleading in light of the circumstances under which made. To the extent
that any portion of the representations and warranties made herein were made to
Seller's or ▇▇▇▇▇▇▇'▇ knowledge, each such party represents that they have made
due and reasonable inquiry with respect thereto.
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(m) TITLE TO AND CONDITION OF ASSETS.
(a) TITLE TO ASSETS. Seller has, and will transfer to
Buyer at the Closing, good and marketable title to the Assets free and clear of
any liens or encumbrances.
(b) CONDITION OF ASSETS. The Assets are, in all
material respects, in good condition and repair, except with respect to ordinary
wear and tear and have been properly maintained in all material respects in the
ordinary course of business with routinely scheduled maintenance and are
suitable for the uses for which they are intended.
8. INVESTMENT REPRESENTATIONS OF SELLER AND ▇▇▇▇▇▇▇.
(a) Each of ▇▇▇▇▇▇▇ and Seller is either an "accredited
investor" as defined in Rule 501(a) under the Securities Act of 1933, as amended
(the "Act") or has such knowledge and experience in financial and business
matters, either alone or with their professional advisors, that he or it is
capable of evaluating the meriting and risks of the acquisition of the stock of
Buyer.
(b) Each is a resident of the State of Florida.
(c) Each has received copies of the following documents of
Buyer: (i) Form 10-KSB report filed with the SEC for the year ended September
30, 2004; (ii) Form 10-QSB report filed with the SEC for the quarter ended
December 31, 2004; and (3) all Form 8-K reports filed with the SEC since
September 30, 2004.
(d) Each has been furnished with a list of each exhibit to the
report described in paragraph (c) above and each has been offered a copy of all
such exhibits as requested by them.
(e) Each has had the opportunity to ask questions and receive
answers concerning the terms and conditions of the transactions contemplated by
this Agreement and to obtain additional information that Buyer possesses or can
obtain without unreasonable effort or expense that is necessary to verify the
accuracy of the shares.
(f) Each is acquiring the shares pursuant to this Agreement
for their own account, not as a nominee or agent. No one else has any interest,
beneficial or otherwise, in any of such the stock.
(g) Each is able to bear the economic risk of such an
investment in the stock, is aware that they must be prepared to hold such stock
for an indefinite period and is aware that the stock has not been registered
under the Act, or registered or qualified under the Law, or any other securities
law, on the ground, among others, that no unregistered distribution or public
offering of such stock is to be effected and the stock is being issued by Buyer
without any public offering within the meaning of Section 4(2) of the Act.
(h) Without in any way limiting the representations herein,
each further agrees that they shall not encumber, pledge, hypothecate, sell,
transfer, assign or otherwise dispose of, or receive any consideration for, any
shares of the stock or any interest in them, unless and until prior to any
proposed encumbrance, pledge, hypothecation, sale, transfer, assignment or
disposition, (i) a registration statement on any form appropriate under the Act
with respect to the shares proposed to be transferred or otherwise disposed of
shall be then effective (ii) they shall have furnished Buyer with an opinion of
counsel (obtained at their own expense) in form and substance satisfactory to
Buyer to the effect that such disposition will not require any registration of
any such shares under the Act or qualification of any such shares under any
other securities law, or (iii) Rule 144 under the Act is available with respect
to such transaction.
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(i) Each understands and agrees that each certificate
representing the stock will bear a legend on the face thereof (or on the reverse
thereof with a reference to such legend on the face thereof) which legend
restricts the sale, transfer or other disposition of the stock, provided,
however, that Buyer shall, on the request of Seller or ▇▇▇▇▇▇▇, cause such
legends to be removed from the certificates evidencing the stock, if they have
held such stock for the period contemplated by Rule 144(k) under the Act and if
they have not then and have not been, during the three-months preceding such
request, an affiliate of Buyer (as defined in Rule 144 under the Act)
(j) Each understands and agrees that the shares that the
shares of the stock will be "restricted securities" as that term is defined in
Rule 144 under the Act and, accordingly, that is must be held indefinitely,
unless it is subsequently registered under the Act or an exemption from such
registration is available.
9. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and warrants to
Seller and ▇▇▇▇▇▇▇ that the following statements are true, complete and not
misleading:
(a) ORGANIZATION, EXISTENCE AND AUTHORITY. Buyer has the
requisite power and authority to enter into this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
The execution, delivery and performance by Buyer of this Agreement have been
duly authorized by all necessary action on Buyer's part.
(b) DUE EXECUTION AND DELIVERY; BINDING OBLIGATIONS. This
Agreement has been duly executed and delivered by Buyer. This Agreement
constitutes the legal, valid and binding obligation of Buyer, enforceable
against Buyer in accordance with its terms.
(c) NO CONFLICT OR VIOLATION. Neither the execution and
delivery of this Agreement by Buyer, nor the consummation of the transactions
contemplated hereby, will result in (i) a violation of, or a conflict with the
charter documents of Buyer or any shareholders' or similar agreement or
understandings to which Buyer is bound, (ii) a violation by Buyer of any
applicable Law, or (iii) a violation by Buyer of any order, judgment, writ,
injunction decree or award to which Buyer is a party.
(d) CONSENTS AND APPROVALS. No consent, permit, approval or
authorization of, or declaration, filing, application, transfer or registration
with, any governmental or regulatory authority, or any other person or entity is
required to be made or obtained by Buyer by virtue of its execution, delivery
and performance of this Agreement or the consummation of the transactions
contemplated hereby.
(e) NO ACTIONS OR PROCEEDINGS. There are no pending, or to
Buyer's knowledge, threatened Actions affecting Buyer which could reasonably be
expected to affect the enforceability of this Agreement or Buyer's ability to
consummate the transactions contemplated by this Agreement.
(f) STOCK OF BUYER. The shares of Buyer's common stock to be
issued to Seller pursuant to this Agreement shall be fully paid and
non-assessable.
10. CONDITIONS TO CLOSING. The Closing is subject to any condition upon the
occurrence of the following:
(a) SELLER'S CONDITIONS TO CLOSING. Seller shall not be
required to close the purchase and sale until the following conditions are
satisfied:
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(i) Buyer has complied with all of the terms and
conditions of this Agreement and signed all documents necessary under this
Agreement except those waived in writing by Seller.
(b) BUYER'S CONDITIONS TO CLOSING. Buyer shall not be required
to close the purchase and sale until the following conditions are satisfied:
(i) Seller has complied with all the terms and
conditions of this Agreement and signed and delivered to Buyer or its agents all
documents necessary for under this Agreement unless waived in writing by Buyer;
(ii) Seller is not in default of any term, condition
or provision of this Agreement; and
(iii) Buyer's satisfaction, in its sole and absolute
discretion, with the results of its due diligence and its analysis of the
Assets.
11. ENGAGEMENT OF ▇▇▇▇ ▇▇▇▇▇▇▇. Concurrent with the Closing of this transaction,
Buyer shall engage ▇▇▇▇▇▇▇ as a consultant to Buyer upon the terms and
conditions described as follows:
(a) SERVICES. ▇▇▇▇▇▇▇ shall provide certain services,
including but not limited to, the following services:
(i) Management of all switches and Telco-related
opportunities;
(ii) Negotiation and management of all Telco-related
contracts and relationships;
(iii) Assistance in the development of prepaid phone
cards and re-loadable prepaid phone cards business; and
(iv) Sale of prepaid phone cards, re-loadable prepaid
phone cards and Debit/ ATM and hologram debit cards.
(b) COMPENSATION. ▇▇▇▇▇▇▇ shall receive the sum of Five
Thousand Dollars ($5,000) per month for a period of no less than eighteen (18)
months in consideration for the services rendered by ▇▇▇▇▇▇▇, pursuant to the
consulting agreement attached hereto as Exhibit "C" ("Consulting Agreement").
The Consulting Agreement shall provide that ▇▇▇▇▇▇▇ shall be entitled to a
commission to be calculated as follows: ten percent (10%) of gross profit
collected from the sale of cards (phone and/or stored value) to the extent such
amount exceed Twenty Thousand Dollars ($20,000) per calendar month. (For
example, if $100,000 is collected in gross profit from the sale of phone cards
and/or phone/stored value cards, the commission earned would be $8,000 ($100,000
- $20,000 - $80,000 x 10% = $8,000). In this example, ▇▇▇▇▇▇▇ would earn a total
of $13,000 (inclusive of his base pay) in compensation that month.)
12. NO TRADING. Seller, ▇▇▇▇▇▇▇ and Buyer acknowledge that Buyer is a
publicly-traded entity and that the disclosure of this Agreement or the terms
contemplated herein could affect the price of Buyer's shares and that they have
material inside information that must be maintained as confidential information.
Seller and ▇▇▇▇▇▇▇ shall not purchase or sell any shares of Buyer until the
completion or cancellation of this Agreement. Further, both Buyer and Seller
recognize they have specific requirements related to the restricted stock and
agree to act within the requirements related to the sale and transfer thereof.
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13. NO THIRD PARTY RIGHTS. This Agreement is intended solely for the benefit of
the parties hereto and shall not be deemed to create any rights in any other
person or entity.
14. INDEMNIFICATION. The parties shall and hereby do indemnify, defend and hold
harmless the other and each of the others officers, directors, employees,
consultants, advisors, lawyers, accountants, successors and assigns for, from
and against any and all claims, actions, causes of action, demands, judgments,
damages and liability, of every kind and nature, including attorneys fees and
costs, stemming from or relating to any violation of any representation,
warranty or covenant or the terms of this Agreement.
15. ASSIGNMENT. This Agreement and all of the provisions hereof shall be binding
upon and inure to the benefit of the parties and their respective successors and
permitted assigns. ▇▇▇▇▇▇▇ must personally perform the Services. MBI may assign
this Agreement to an entity with which it becomes merged or otherwise affiliated
and such entity may be added to or may replace MBI at MBI's discretion upon
notice to ▇▇▇▇▇▇▇. In the event the Company intends to resell or transfer the
Assets, ▇▇▇▇▇▇▇ shall have right of first refusal to purchase the Assets upon
the same terms and conditions offered to the Company, which must be completed
within ten (10) days of the date the Company notifies ▇▇▇▇▇▇▇ of the offer.
16. SUCCESSORS AND ASSIGNS. Each of the terms, provisions, and obligations of
this Agreement shall be binding upon, shall inure to the benefit of, and shall
be enforceable by the parties and their respective legal representatives,
successors and permitted assigns.
17. ENTIRE AGREEMENT. This Agreement, together with the Schedules and Exhibits
hereto and any other written agreement referred to herein or executed in
connection herewith, set forth the entire agreement between the parties with
regard to the subject matter hereof.
18. SEVERABILITY. Each provision of this Agreement is intended to be severable.
If any provision of this Agreement shall be judicially declared to be invalid,
unenforceable, void or voidable, such decision will not have the effect of
invalidating, voiding or rendering voidable the remainder of this Agreement and
the remainder of this Agreement will have the same force and effect as if such
provision had never been included.
19. COUNTERPARTS. This Agreement may be executed in person or by facsimile in
one or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute a single agreement.
20. SURVIVAL. The representations, warranties and agreements in this Agreement
shall survive any cancellation, termination, rescission or expiration of this
Agreement.
21. NOTICES. All notices, requests, demands and other communications made under
this Agreement shall be in writing, correctly addressed to the recipient at the
addresses set forth on the signature page hereto and shall be deemed to have
been duly given (i) upon delivery, if served personally on the party to whom
notice is to be given, (ii) upon transmittal, if sent by facsimile during the
recipient's normal business hours and receipt is confirmed; (iii) at the
beginning of the next business day if sent by facsimile outside the recipient's
normal business hours and receipt is confirmed, or (iv) on the date or receipt,
refusal or non-delivery indicated on the receipt if mailed to the party to whom
notice is to be given by first class mail, registered or certified, postage
prepaid, or by air courier.
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22. WAIVER OF COMPLIANCE. Except as otherwise provided in this Agreement, any
breach by a party may only be waived by the other party in a written instrument
signed by the waiving party. Such waiver shall not operate as a waiver of, or
estoppel with respect to, any subsequent or other breach.
23. WAIVER OF BREACH. The waiver by MBI of a breach of any condition of this
Agreement by ▇▇▇▇▇▇▇ shall not be construed as a waiver by MBI of any subsequent
breach by ▇▇▇▇▇▇▇.
24. DISCRETION TO WAIVE ENFORCEMENT. MBI's CEO shall retain the unilateral
discretion to waive the enforcement of any provision of this Agreement. Such a
waiver would be effective only upon MBI's President's signing a detailed
description of the waiver. MBI has not and will not make any representations
regarding future waivers of any provision of this Agreement until presented with
detailed facts and circumstances at the time the request is made. Further, any
waiver shall be limited to the signed description.
25. GOVERNING LAW. The validity, construction and performance of this Agreement,
and any action arising out of or relating to this Agreement shall be governed by
the laws of the State of Florida and venue shall lie in Sarasota County.
26. ATTORNEYS' FEES. If any arbitration, litigation, action, suit or other
proceedings is instituted to remedy, prevent or obtain relief from a breach of
this Agreement, in relation to a breach of this Agreement or pertaining to a
declaration of rights under this Agreement, the prevailing party will recover
all such party's attorneys' fees incurred in each and every such action, suit or
other proceeding, including any and all appeals or petitioner therefrom.
27. WAIVER OF JURY TRIAL. To the extent permitted by law, in the event of a
dispute between the parties, ▇▇▇▇▇▇▇ and MBI hereby elect to have a judge rather
than a jury resolves any future disputes and hereby waive a trial by jury of any
and all issues arising in any action or proceeding relating to this Agreement or
to their employment relationship. However, for additional clarity, the following
is a list of some of the types of claims included in this Waiver of Jury Trial:
all claims in tort (for negligent or intentional acts), in contract (whether
verbal or written), by statute, for constitutional violation, for wrongful
discharge, discrimination, harassment, retaliation, or claims of personal
injury, for compensatory, punitive, or other damages, expenses, reimbursements,
or costs of any kind, including but not limited to, any and all claims, demands,
rights, and/or causes of action arising out of their relationship from the
beginning of time until the end of time. The Parties understand that the right
to a trial by jury is a constitutional right and that this election to have a
judge determine any claim, rather than a jury, is a voluntary choice.
IN WITNESS WHEREOF, each of the parties has executed this Agreement as
of the date first set forth above.
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"BUYER": "SELLER":
▇▇▇▇▇▇ BEAUMONT, INC., a Nevada MTEL COMMUNICATIONS, INC., a
corporation Florida corporation
By: By:
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▇▇▇▇▇ ▇▇▇▇▇▇, CEO ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, CEO and Chairman
"▇▇▇▇▇▇▇"
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇, an individual
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SCHEDULE "1"
ASSETS
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SCHEDULE "2"
LICENSES, PERMITS AND ORDERS
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EXHIBIT "A"
ASSIGNMENT AND ASSUMPTION AGREEMENT
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This Assignment and Assumption Agreement (the "Assignment") is executed
on April ____, 2005, by and between MTEL Communications, Inc., a Florida
corporation ("Seller") and ▇▇▇▇▇▇ Beaumont, Inc., a Nevada corporation
("Buyer").
R E C I T A L S
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A. Seller and Buyer have entered into that certain Asset Purchase
Agreement dated March ___, 2005 (the "Purchase Agreement") in which Seller has
agreed to sell to Buyer and Buyer has agreed to purchase from Seller all of
Seller' assets.
A G R E E M E N T
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In consideration of the Recitals, the Closing of the Purchase
Agreement, the mutual covenants and agreements which follow and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. EFFECTIVE DATE OF ASSIGNMENT AND ASSUMPTION. This assignment shall
take effect as of the date first written above.
2. ASSIGNMENT. Seller hereby assigns, transfers or licenses to Buyer
all of Seller's right, title and interest in and to the agreements and contracts
identified in Schedule "1" to the Purchase Agreement ("Assigned Contracts"),
true and correct copies of which have been delivered to Buyer by Seller.
3. ASSUMPTION. Buyer shall not assume or be liable or responsible for
any liabilities, obligations or commitments of Seller and all such liabilities,
obligations and commitments shall remain the exclusive liabilities, obligations
and commitments of Seller, as applicable.
4. CONDITIONS. The Buyer's assumption of the Assigned Contracts is
subject to the conditions set forth in the Purchase Agreement, including the
Seller acquiring the necessary consent to assignment for those Assigned
Contracts requiring such consent
The agreements and contracts are being assigned to Buyer and the
liability is being assumed by Buyer pursuant to the Purchase Agreement, and all
representations, warranties, covenants and indemnities contained in the Purchase
Agreement are hereby incorporated by reference herein and made a part of this
assignment.
IN WITNESS WHEREOF, the parties have executed this Assignment as of the
date and year first written above.
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"BUYER":
▇▇▇▇▇▇ BEAUMONT, INC., a Nevada corporation
By:
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▇▇▇▇▇ ▇▇▇▇▇▇, CEO
"SELLER":
MTEL COMMUNICATIONS, INC., a Florida
corporation
By:
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇, CEO and Chairman
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EXHIBIT "B"
FORM OF ▇▇▇▇ OF SALE
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THIS ▇▇▇▇ OF SALE (this "▇▇▇▇ of Sale") is being executed and delivered
by MTEL Communications, Inc., a Florida corporation ("Seller"), pursuant to that
certain Purchase Agreement dated as of April __, 2005 (the "Agreement"), by and
between Seller and ▇▇▇▇▇▇ Beaumont, Inc., a Nevada corporation ("Buyer").
Capitalized terms used herein without definition shall have the meanings given
to them in the Agreement.
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of
which are hereby acknowledged, Seller hereby gives, grants, bargains, sells,
transfers, sets over, assigns and delivers unto Buyer, all of Seller's right,
title and interest in and to the all Assets as described in Schedule "1". Except
for liens for taxes not yet due and payable, the transfer evidenced by this ▇▇▇▇
of Sale is made free and clear of all Encumbrances of any nature.
Seller hereby covenant that it will, at any time and from time to time,
upon written request therefore, execute and deliver to Buyer, or to Buyer's
successors, nominees or assigns, any new or confirmatory instruments which may
be reasonably necessary or desirable in order to protect or to fully assign and
transfer to and vest in Buyer or such successor, nominee or assign, all of
Seller's right, title and interest in and to the Assets.
This ▇▇▇▇ of Sale shall be binding upon and inure to the benefit of the
legal representatives, successors and assigns of Seller and Buyer.
IN WITNESS WHEREOF, Seller has duly executed this ▇▇▇▇ of Sale as of
the date first written above.
"SELLER":
MTEL COMMUNICATIONS, INC., a
Florida corporation
By:
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇, CEO and Chairman
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