EXHIBIT 10.17
i-View Software, Inc.
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
October 29, 1996
The Stockholders Listed in Exhibit "A"
Galacticomm, Inc.
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Lady and Gentlemen:
This letter serves as your agreement to sell, and our agreement to
purchase, all of the shares (the "Shares") of Galacticomm, Inc.'s (the
"Company") common stock, par value $.01 per share, owned by each of the
stockholders (the "Stockholders") listed in Exhibit "A" attached hereto.
1. PURCHASE PRICE. Subject to the terms contained herein, in exchange for
each of the Shares, i-View Software, Inc. ("i-View") will pay to each of the
Stockholders 9.4(cent) in cash and will issue to each of the Stockholders .0644
shares of i-View's common stock, par value $.001 per share, except for the
1,440,000 Shares owned by the Estate of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, (the "Option
Shares") which are subject to the Stock Option Agreement referred to in Section
9 hereof. In exchange for each of the Option Shares, i-View will issue ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, as personal representative of such Estate, .0644 shares of i-View's
common stock plus an additional 92,736 shares. ▇▇. ▇▇▇▇▇▇▇ will not be paid any
cash by i-View for the Option Shares.
2. ADJUSTMENT TO PURCHASE PRICE. If i-View completes this transaction in
accordance with the terms contained herein and the Company's liabilities on the
date this letter is fully executed have increased by more than $130,000 over the
amount stated in the Financial Statements (as defined in Section 6(e) hereof),
the number of i-View's shares of common stock to be issued as part of the
purchase price for the Shares and the Option Shares will be reduced in
proportion to the dollar amount by which such liabilities have increased by more
than $130,000. Any increase in the liabilities of the Company relating to its
rental payment obligations under a lease with Atria Family II Limited will be
excluded from the calculation of the increase in the Company's liabilities after
the date of this letter.
3. ESCROW ARRANGEMENT. Upon execution of this letter agreement: (a) each
of the Stockholders will deliver the stock certificates representing each of the
Shares (duly endorsed in blank and notarized) to ▇▇▇▇▇, ▇▇▇▇▇▇▇, Croland,
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.A., (the "Escrow Agent"), and (b) i-View will deliver to
the Escrow Agent a cashier's check made payable to the Company in an amount
equal to the lesser of: (i) $100,000 or (ii) the amount of cash held by the
Company at the date that all of the Shares are delivered to the Escrow Agent in
accordance with the terms of this letter agreement (the "Escrowed Funds"). Until
the earlier to occur of November 21, 1996 or the date that i-View provides the
Escrow Agent with written notice of its decision to consummate or terminate this
transaction, all of the Shares and the Escrowed Funds will be held by the Escrow
Agent in accordance with Section 4 hereof. A copy of i-View's notice to the
Escrow Agent under this Section 3 will also be provided contemporaneously to
each of the Stockholders.
4. ESCROW PERIOD. Each of the Stockholders acknowledges and understands
that i-View is entering into this letter agreement before it has completed its
due diligence review of the operations, business and financial condition of the
Company. When i-View completes such due diligence review, it shall have the
option, in its sole and absolute discretion exercised in good faith, to complete
or terminate the purchase of the Shares. Such option must be exercised by no
later than November 21, 1996. When i-View decides whether to complete or
terminate the transaction contemplated hereby, written notice thereof will be
provided to each of the Stockholders and the Escrow Agent. If the transaction is
to be completed, i-View will pay each of the Stockholders the purchase price for
the Shares in accordance with the terms of this letter agreement and the Escrow
Agent will deliver the stock certificates representing the Shares to i-View. If
i-View decides to terminate the transaction contemplated hereby, the Escrow
Agent will return the stock certificates held in escrow hereby to the addresses
for each of the Stockholders set forth herein. Upon the earlier to occur of: (a)
5:00 p.m. (Miami, Florida time) on November 21, 1996, or (b) the Escrow Agent's
receipt of i-View's written notice of completion or termination of the
transaction contemplated hereby, the Escrow Agent will mail the Escrowed Funds
to the Company at the address set forth in this letter agreement. The Escrow
Agent will provide for the safekeeping of the stock certificates representing
the Shares and the Escrowed Funds in accordance with the care exercised by an
escrow agent similarly situated. If any controversy should arise between or
among the parties hereto with respect to any matter set forth in this letter
agreement, the Escrow Agent may commence an interpleader action in the state or
federal courts located in Dade County, Florida and deposit the stock
certificates representing the Shares and the Escrowed Funds in the registry of
the court in which such action is commenced. Each of the Stockholders and i-View
will indemnify and hold harmless the Escrow Agent from any costs or expenses
incurred by the Escrow Agent in connection with acting as an escrow agent in
accordance with this letter agreement. The Escrow Agent hereby undertakes to and
will perform only such duties as are expressly set forth herein, and is entitled
to rely on the written notice from i-View. No implied duties or obligations
shall be read into this letter agreement against the Escrow Agent. Each of the
Stockholders expressly waives any and all conflicts of interest which may exist,
now and in the future, between the Escrow Agent acting as legal counsel to
i-View and Escrow Agent hereunder.
5. MANAGEMENT AGREEMENT. Contemporaneously with the execution of this
letter agreement, the Stockholders will cause the Company to enter into a
Management Agreement with i-View, in the form attached hereto as Exhibit "B."
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6. REPRESENTATIONS AND WARRANTIES OF EACH OF THE STOCKHOLDERS. As of the
date of this letter agreement each of the Stockholders, severally and not
jointly, represents and warrants to i-View as follows:
(a) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Florida and has
full corporate power and authority to carry on its business as and
where now conducted, and to own, operate and lease its properties
at and in the places where such properties are now owned, operated
or leased by it, and is duly qualified to do business in every
jurisdiction in which the property owned, leased or operated by it,
or the nature of the business conducted by it, makes such
qualification necessary, except where the failure to be so
qualified would not have a material adverse effect upon the
business, operations, assets or liabilities, results of operations
or the financial condition of the Company.
(b) The Company is authorized to issue 10,000,000 shares of common
stock, par value $.01 per share, and the total number of issued and
outstanding shares of such common stock is 8,871,207 shares on a
fully-diluted basis, including the phantom stock units which are
convertible into common stock. There is no other capital stock of
the Company authorized. All of the issued and outstanding shares of
capital stock of the Company are validly issued, fully paid,
non-assessable and subject to no preemptive rights with respect
thereto. Each Stockholder is both the record and beneficial owner
of the shares set forth opposite his or her name on Exhibit "A" and
has, with the exception of the Option Shares, the full right, power
and authority to sell, transfer and deliver to i-View such shares,
free and clear of any liens, claims, charges, options, pledges or
other encumbrances, with no personal liability attaching to the
ownership thereof. It is acknowledged by i-View that the Option
Shares are subject to the Stock Option Agreement referred to in
Section 9 hereof.
(c) Except for the Stock Option Agreement referred to in Section 9
hereof, there are no options, warrants or other rights outstanding
for the purchase of, nor any outstanding securities convertible
into, any shares of capital stock of the Company or any such
convertible securities, and neither the Company nor any Stockholder
has agreed to issue, purchase, or sell or transfer any of same.
(d) The execution of this letter agreement by each of the Stockholders
and its delivery to i-View is not contrary to the Articles of
Incorporation or By-laws of the Company. Neither the execution,
delivery nor consummation of this letter agreement by the
Stockholders will, with the passage of time, the giving of notice,
or otherwise, result in a
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violation or breach of, or constitute a default under, any term or
provision of any material indenture, mortgage, deed of trust,
lease, instrument, order, judgment, decree, rule, regulation, law,
contract, agreement or any other restriction to which the Company
or any Stockholder is a party or to which they or any of them are
subject or bound, except for the Stock Option Agreement referred to
in Section 9 hereof, nor will it result in the creation of any lien
or other material charge upon any of the assets of the Company or
any Stockholder, nor will it result in acceleration or termination
of any loan or security interest agreement to which the Company or
any Stockholder is a party or to which any of the Company's assets
or the assets of any Stockholder is subject.
(e) Prior to the date hereof, i-View has been provided with the
unaudited balance sheet of the Company as at September 30, 1996 and
the related statements of income and statements of changes in
financial positions for the period then ended (the "Financial
Statements"). The Financial Statements have been prepared in
accordance with generally accepted accounting principles applied on
a consistent basis, fairly present the Company's financial
condition and results of its operations at and for the period
therein specified and give a true and accurate view of the affairs
of the Company at and for the period therein specified.
(f) The Company has filed all income, franchise and other tax returns
and reports of every nature required to be filed by it, accurately
reflecting any and all taxes owing to the United States, or any
other government or any subdivision thereof, domestic or foreign,
state or local, or by any other taxing authority, and has paid in
full or made adequate provision for the payment of all taxes
(including penalties and interest), for which it has or may have
liability. The Stockholders have no knowledge of any unassessed tax
deficiency proposed or threatened against the Company as a result
of its business, and there are no tax deficiencies, not accrued as
of September 30, 1996 (including penalties and interest) of any
kind assessed against the Company with respect to taxable periods
ending on or before the completion of this transaction. The Company
is not a party to any action or proceeding by any governmental
authority for assessment or collection of taxes, nor has any such
event been asserted or threatened. The federal income tax returns
of the Company have never been audited by the Internal Revenue
Service.
(g) There are no claims or proceedings by or against the Company
pending or, to the knowledge of the Stockholders, threatened in
which, if adversely determined, could reasonably be expected to
have a material
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adverse effect upon the business, operations, assets or
liabilities, results of operations or the financial condition of
the Company.
(h) No representation or warranty contained in this letter agreement
and no document or other written information furnished to i-View
pursuant to this letter agreement, or in connection with the
transaction contemplated by this letter agreement contains any
untrue statement of a material fact, or omits to state a material
fact necessary to make the statements contained herein or therein
not misleading.
(i) Each of the Stockholders is acquiring the i-View shares referred to
in Section 1 hereof for investment purposes and not with a view to,
or for resale in connection with, the distribution thereof (except
in a transaction or transactions permitted under the applicable
securities laws). Each Stockholder has such knowledge and
experience in financial and business matters (as required by Rule
506 of Regulation D of the Securities Act of 1933), and has had
such opportunity as he or she deems necessary or appropriate to ask
questions of and receive answers from representatives of i-View
concerning the business, operations, assets or liabilities, results
of operations or the financial condition of i-View, to enable each
of the Stockholders to evaluate the merits and risks associated
with the ownership of i-View common stock. In addition, each of the
Stockholders has been afforded an opportunity to discuss the
business, operations and prospects of i-View with representatives
of i-View and has also had an opportunity to seek legal and/or
financial advice from his or her advisor(s) in connection with the
transaction contemplated herein.
7. REPRESENTATIONS AND WARRANTIES OF I-VIEW. i-View hereby represents and
warrants to each of the Stockholders as follows:
(a) i-View is a corporation duly organized, validly existing and in
good standing under the laws of the State of Florida and has full
corporate power and authority to carry on its business as and where
now conducted, and to own, operate and lease its properties at and
in the places where such properties are now owned, operated or
leased by it and is duly qualified to do business in every
jurisdiction in which the property owned, operated or leased by it,
or in the nature of the business conducted by it, make such
qualification necessary.
(b) The execution of this letter agreement by i-View and its delivery
to the Stockholders has been or will be duly authorized by the
Board of Directors of i-View and no further corporate action will
be necessary on
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the part of i-View to make this letter agreement valid and binding
upon i-View.
(c) i-View is acquiring the Shares for investment purposes and not with
a view to, or for resale in connection with, the distribution
thereof (except in a transaction or transactions permitted under
applicable securities laws). i-View is an "accredited investor" as
required by Rule 506 of Regulation D of the Securities Act of 1933.
8. I-VIEW'S OFFER TO OTHER STOCKHOLDERS OF THE COMPANY. As soon as
reasonably practicable after the completion of the transaction contemplated
herein, i-View will offer to purchase the shares of the Company's common stock
owned by the other stockholders of the Company on substantially similar terms
and conditions as are contained in this letter agreement.
9. INDEMNIFICATION AND RELEASE OF ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇. i-View will indemnify
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ from and against any and all costs, expenses and liabilities
▇▇. ▇▇▇▇▇▇▇ may incur as a result of her sale to i-View of 1,440,000 Shares
which are subject to that certain Stock Option Agreement, dated April 30, 1996
(the "Option Agreement"), among ▇▇▇ ▇▇▇▇▇▇▇, the Company, and Messrs. ▇▇▇▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ and ▇▇▇▇▇▇▇ (the "Optionees"). i-View will obtain and
deliver to ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ at the closing, a general release, in for a form
acceptable to ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, signed by the Optionees in which they: (a)
release ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ and the Estate of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
from any and all liabilities and claims arising out of the Option Agreement; (b)
waive any rights the Optionees may have under the Option Agreement; and (c)
consent to ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and the estate of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ selling the
Option Shares to i-View pursuant to this Agreement.
10. NO SHOP. In consideration of i-View's obligations under the Management
Agreement and the Escrowed Funds which will be delivered to the Company whether
the transaction contemplated hereby is completed or terminated, none of the
Stockholders will, during the term of this letter agreement, directly or
indirectly, discuss or enter into any other proposal, understanding or agreement
of any type relating to the Shares or any material assets of the Company.
11. NON-COMPETITION AND NON-DISCLOSURE COVENANT. For a period of 24 months
from the completion of the transaction contemplated hereby: (a) each Stockholder
will not, for his or her own account or either as agent, servant or employee, or
as a stockholder of any corporation or member of any firm, own, manage, operate,
join, control, be employed by or participate in the ownership, management,
operation or control of any individual, entity or business that creates products
that are substantially similar to the Company's products or has products under
development that are substantially similar to the Company's products, both as of
the date of this letter agreement; and (b) each Stockholder will not disclose or
divulge to others any trade secrets, confidential information, or internal
Company business or
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technical data. For purposes of this letter agreement, "internal Company
business or technical data" means customer lists, pricing data, sources of
supply, and marketing, production or merchandising systems or plans, proprietary
methods, processes, formulae, compositions, inventions, computer programs,
algorithms and research projects contemplated or underway as of the date that
this letter agreement is fully executed. In the event of an actual or threatened
breach by a Stockholder of this Section 11, i-View shall be entitled to an
injunction restraining such Stockholder from the prohibited conduct. If a court
of competent jurisdiction should hold that the duration and/or scope (geographic
or otherwise) of the provisions contained in this Section 11 are unreasonable,
then, to the extent permitted by law, the court may prescribe a duration and/or
scope (geographic or otherwise) that is reasonable, and the parties hereto agree
to accept such determination, subject to their rights of appeal. Nothing herein
stated shall be construed as prohibiting i-View or any third party from pursuing
any other remedies available to it for such breach or threatened breach,
including the recovery of damages from the Stockholder who has violated this
Section 11. In any action or proceeding to enforce the provisions of this
Section 11, the prevailing party shall be reimbursed by the other party for all
costs incurred in such action or proceeding including, without limitation, all
court costs and filing fees, and all reasonable attorneys' fees, incurred either
at the trial level or at the appellate level. This Section 11 supersedes all
other non-competition provisions in any agreements between the Company and a
Stockholder.
12. CONVERSION OF I-VIEW TO A C CORPORATION. As soon as reasonably
practicable after the completion of the transaction contemplated hereby, i-View
will be converted from an S Corporation to a C Corporation, as such terms are
defined under applicable United States tax laws and regulations.
13. FINDER'S FEES. i-View and each of the Stockholders represent to each
other that no person is entitled to a fee or payment as a finder in connection
with the transaction contemplated herein, and each party will indemnify the
other party hereto with respect to any claim for a finder's fee in connection
therewith.
14. INFORMATION. Until the closing (or termination) of the transaction
contemplated herein, each of the Stockholders will make available for inspection
by i-View and its agents all corporate books and records and all other matters
reasonably considered by i-View to be relevant to the business and affairs of
the Company.
15. CONFIDENTIALITY. Whether or not the transaction is consummated, all
information received by any party with respect to the business and affairs of
the Company and i-View will be considered confidential and will not be disclosed
to others. This section does not prevent any disclosure to professional advisors
and agents of any party hereto. Such information shall not include information
available from public sources or which is disclosed or revealed to a party
hereto and not identified as confidential.
16. EXPENSES. Except for an aggregate of up to $2,000 of the Stockholders'
costs, expenses and the reasonable legal fees of one law firm chosen to
represent all of the Stockholders in connection with this letter agreement,
which will be paid by i-View after the
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completion of the transaction contemplated hereby and i-View's receipt of a
reasonably detailed statement therefor, each party will bear its own costs,
expenses and legal fees in connection with the transaction contemplated hereby.
17. COUNTERPARTS. This letter agreement may be signed in two or more
counterparts, each of which when executed will be deemed to be an original but
all of which taken together shall constitute one and the same letter agreement.
18. SURVIVAL. All of the representations and warranties of the parties
contained herein will survive the execution and delivery of this letter
agreement and the closing of the transaction contemplated hereby for a period of
18 months following the closing of such transaction, regardless of any
investigation made at any time by the parties hereto.
19. LIMITATION OF LIABILITY. The aggregate liability of the Stockholders
to i-View for breach of a representation and warranty in Section 6 hereof will
not exceed $1,700,000, plus any shortfall of cash i-View pays to third parties
in accordance with Section 2.2 of the Management Agreement. The liability of the
Stockholders to i-View will be allocated among the Stockholders in proportion to
the number of Shares sold by each Stockholder under this letter agreement,
excluding the Option Shares. In addition, i-View's aggregate liability to the
Stockholders for breach of a representation and warranty in Section 7 hereof
will not exceed $100,000, which will be allocated among the Stockholders in the
same manner as set forth in the preceding sentence.
20. JURISDICTION; SERVICE OF PROCESS. Each of the parties hereto agrees
that all actions or proceedings initiated by any party hereto and arising
directly or indirectly out of this letter agreement which are brought by
judicial proceedings shall be litigated in any court of competent jurisdiction
located in Dade County, Florida. Each of the parties hereto expressly submits to
the jurisdiction of such court and consents to process being served in any suit,
action or proceeding of the nature referred to in this Section 20 by the mailing
of a copy thereof by registered or certified mail, postage prepaid, return
receipt requested, to the address of each of the parties set forth hereinafter.
Each party hereto agrees that such service will be deemed in every respect
effective service of process upon such party in any such suit, action or
proceeding and will be taken and held to be valid personal service upon each of
the parties hereto. Each of the parties hereto irrevocably and unconditionally
waives any objection a party may now or hereafter have to venue in any judicial
proceeding of the nature referred to in this Section 20 and any claim that any
action or proceeding brought in any such court has been brought in an
inconvenient or improper form.
21. NATURE OF THIS LETTER AGREEMENT. This letter agreement constitutes a
binding agreement between and among the parties hereto. However, if the
transaction contemplated herein is not completed in accordance with the terms
contained herein, Section 15 hereof shall remain in full force and effect after
such termination.
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If the foregoing correctly sets forth our understanding, please sign and
date the enclosed copy of this letter and return it to the undersigned.
Very truly yours,
i-View Software, Inc.
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇▇▇▇
--------------------------
▇▇▇▇▇ ▇▇▇▇, President
Each of the undersigned has accepted the terms set forth in this letter as
of the date indicated.
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ October 30, 1996
---------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, in her
individual capacity and as
Personal Representative of
the Estate of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇ October 31, 1996
---------------------------------
▇▇▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇ October 30, 1996
---------------------------------
▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ October 31, 1996
---------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇
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/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ October 31, 1996
---------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ October 31, 1996
---------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇ October 31, 1996
---------------------------------
▇▇▇▇▇ ▇▇▇▇▇
The undersigned, an authorized representative of the Escrow Agent, hereby
accepts, on behalf of the Escrow Agent, the terms and conditions set forth in
Sections 3 and 4 hereof.
▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.A.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, in his capacity
as authorized representative of the
firm and not in his individual
capacity
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EXHIBIT "A"
NAME OF STOCKHOLDER NO. OF SHARES
------------------- -------------
Estate of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 3,852,679
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 250,324
▇▇▇▇▇▇ ▇▇▇▇ 1,100,000
▇▇▇▇ ▇▇▇▇▇▇ 666,667
▇▇▇▇▇▇ ▇▇▇▇▇ 785,233
▇▇▇▇▇ ▇▇▇▇▇▇▇ 882,000
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 400,300
▇▇▇▇▇ ▇▇▇▇▇ 100,000
---------
8,037,203
EXHIBIT "B"
MANAGEMENT AGREEMENT
This Management Agreement (this "Agreement") dated October __, 1996 is
between Galacticomm, Inc., a Florida corporation ("Galacticomm"), and i-View
Software, Inc., a Florida corporation ("i-View").
RECITALS
A. Certain stockholders of Galacticomm and i-View have entered into a
letter agreement, pursuant to which such stockholders have agreed to sell, and
i-View has agreed to buy, all of the common stock of Galacticomm owned by such
stockholders.
B. Until such time its the completion (or termination) of the letter
agreement referred to in Recital A hereof, Galacticomm desires to retain i-View
as its managing agent to perform certain operational and administrative
functions on behalf of Galacticomm, and i-View is willing to perform such
functions on the terms and conditions set forth herein.
NOW, THEREFORE, the parties hereto agree as follows:
I.
RECITALS
The Recitals of this Agreement are true and correct and are incorporated
herein as part of the terms and conditions of this Agreement.
II.
APPOINTMENT AS AGENT
2.1 APPOINTMENT. Galacticomm hereby appoints i-View as its managing agent
and attorney-in-fact to act in Galacticomm's name, place and stead under the
terms and conditions set forth herein. Any act of i-View under the terms of this
Agreement within the scope of the agency created hereby shall be the act of
Galacticomm and not i-View. Galacticomm shall execute and deliver to i-View, as
requested by i-View, all instruments, documents and certificates, including
powers-of-attorney, necessary or appropriate for i-View to carry out its duties
and responsibilities set forth herein.
2.2 SCOPE OF AGENCY. During the term of this Agreement, I-View shall have
the authority to use the cash of Galacticomm and will be responsible to cover
any shortfall of cash required to pay all rent due including the rent payable
under Galacticomm's lease with Atria Family II Limited, payroll and utility
payments and such other financial obligations of Galacticomm as are agreed to in
writing by the parties hereto. In performing the operational and administrative
functions referred to in this Agreement, i-View shall be subject to the
supervision and control of the board of directors of Galacticomm. In no event
shall i-View
make any payment or incur an obligation on behalf of Galacticomm involving in
excess of $10,000 without obtaining the prior approval of the board of directors
of Galacticomm.
III.
TERM
3.1 BASIC TERM. Except as provided in Section 3.2 hereof, the term of this
Agreement shall commence on the date hereof and shall end upon the completion
(or termination) of the transaction referred to in Recital A hereof.
3.2 TERMINATION IN EVENT OF BANKRUPTCY. If an involuntary or voluntary
case or proceeding is commenced against or by Galacticomm under the United
States Bankruptcy Reform Act of 1978, as amended, or any similar federal or
state statute, i-View may terminate this Agreement upon 30 days prior written
notice.
3.3 RETURN OF FILES. If this Agreement is terminated pursuant to Sections
3.1 or 3.2 hereof, i-View shall return to Galacticomm all files, information and
material belonging to Galacticomm in its possession and shall return all powers
of attorney and similar documents granted or executed hereunder to i-View;
provided, however, that all such files, information and materials shall be made
available to i-View for inspection and photocopying during normal business
hours; and provided further, that at Galacticomm's sole cost and expense, i-View
will make available to Galacticomm its employees to facilitate an orderly
transfer of such files, information and materials.
IV.
REMUNERATION
It is acknowledged and understood by the parties hereto that this
Agreement is entered into as an interim measure prior to the completion (or
termination) of the transaction referred to in Recital A. Galacticomm shall not
be obligated to compensate i-View for its services hereunder.
V.
INDEMNITY
Galacticomm shall indemnify, save and hold harmless i-View and its
officers, directors, employees and agents from and against any obligation,
liability, cost or damage resulting from i-View's actions in accordance with the
terms of this Agreement, except to the extent occasioned by the gross negligence
or willful misconduct of i-View.
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VI.
MISCELLANEOUS
6.1 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of
the parties with respect to transactions contemplated hereby and may not be
modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by the parties hereto. No party to this
Agreement may assign any of its rights or obligations under this Agreement
without the prior written consent of the other party. Notwithstanding anything
else contained herein to the contrary, i-View shall have the right to retain, on
Galacticomm's behalf, consultants, accountants, attorneys, engineers or other
parties to assist i-View in carrying out its duties and responsibilities
hereunder, the fees and expenses of such parties shall be at the sole cost and
expense of i-View (unless agreed to the contrary in writing by Galacticomm).
6.2 BINDING AGREEMENT. This Agreement shall be binding upon, inure to the
benefit of, and be enforceable by Galacticomm and i-View and their respective
successors, representatives and permitted assigns.
6.3 LIMITATION ON DAMAGES. Neither party shall be liable to the other
party for any consequential damages resulting from a breach from this Agreement.
6.4 NO JOINT VENTURE OR PARTNERSHIP. Nothing expressed or implied in this
Agreement is intended or shall be construed to create or establish a joint
venture or a partnership between the parties hereto.
6.5 NOTICES. All notices, claims, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if actually delivered as follows:
(a) IF TO GALACTICOMM, to:
Galacticomm, Inc.
▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President
(b) IT TO I-VIEW, to:
i-View Software, Inc.
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President
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or such other address as the party to whom notice is to be given may have
previously furnished to the other party in writing in the manner set forth above
(provided, that notice of any change of address shall be effective upon receipt
thereof).
6.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one in the same instrument.
6.7 FLORIDA LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Florida applicable to
contracts made and to be performed therein.
6.8 SEVERABILITY. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions shall remain in full force and effect and and shall in no way be
affected, impaired or invalidated. It is hereby stipulated and declared to be
the intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such which may
hereafter be declared invalid, void or unenforceable.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the parties hereto as of the date first written above.
GALACTICOMM, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
-------------------------------
Authorized Representative
I-VIEW SOFTWARE, INC.
BY: /s/ ▇▇▇▇▇ ▇▇▇▇
-------------------------------
Authorized Representative
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