SETTLEMENT AGREEMENT
This Settlement Agreement ("Agreement") is entered into as of the _______ day of
________, 2004 (the "Execution Date"), by and among Xxxx Xxxxxxx ("Masanek"),
Services By Designwise, Ltd. ("SBD") (collectively "Plaintiffs") and Xxxxx
Xxxxxxx ("Solomon"), Technology Alternatives, Inc., an Illinois corporation
("Technology"), and TechAlt, Inc. f/k/a Dendo Global Corporation, a Nevada
corporation ("TechAlt") (collectively "Defendants").
WHEREAS, Plaintiffs filed certain claims against the Defendants in a lawsuit
filed in the Circuit Court of Xxxx County, Illinois, XXXX XXXXXXX AND SERVICES
BY DESIGNWISE, LTD. V. XXXXX XXXXXXX, ET AL. CASE XX. 00 XX 00000 and Defendants
countered with various causes of action, claims and defenses against Plaintiff
(the "Litigation");
WHEREAS, prior to the filing of the Litigation, Technology licensed intellectual
property to TechAlt in exchange for stock in TechAlt (the "License Agreement");
WHEREAS, prior to the filing of the Litigation, TechAlt and various investors
(the "Sunrise Investors") entered into various financing agreements in August
2004, including without limitation, those agreements filed with the United
States Securities and Exchange Commission in which the Sunrise Investors
received stock in TechAlt (the "Financing") (the License Agreement and the
Financing, collectively the "Transaction");
WHEREAS, none of the parties to the Litigation or this Agreement admit any
fault, culpability or liability in connection with the Litigation and the
alleged facts and conduct on which the Litigation is based, and all parties
desire to settle and release claims against each other as specified in this
Agreement;
WHEREAS, the parties desire to resolve the Litigation without incurring any
additional attorneys' fees and costs;
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WHEREAS, the recitals herein are material terms of this Agreement and made a
part of this Agreement;
IN CONSIDERATION of the terms, payments, covenants, representations and
warranties in this Agreement and the Related Agreements (hereinafter defined),
release of claims and the dismissal of the Litigation, the sufficiency of which
is hereby acknowledged by the parties herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement, the following terms shall be defined as follows:
a. TechAlt's Liabilities. "TechAlt's Liabilities" herein means all
obligations and liabilities of TechAlt due or payable, incurred or owing to
Masanek and SBD under this Agreement and the Related Agreements (hereinafter
defined).
b. Related Agreements. "Related Agreements" herein means all agreements,
instruments and documents entered into between Masanek and/or SBD and Solomon,
Technology, and/or TechAlt relating to the settlement of the Litigation,
including without limitation, the Merger Agreement, Secured Convertible
Promissory Note, Security Agreement, Warrant, Registration Rights Agreement,
Right of First Refusal Agreement, Consulting Agreement, Sales Agreement, and
Escrow Agreement all of even date, and all other written instruments and
documents heretofore, now and/or from time to time hereafter executed among
Masanek and/or SBD, and Solomon, Technology, and/or TechAlt relating to the
settlement of the Litigation.
c. Closing. "Closing" herein means the date of effectiveness and release
of this Agreement and the Related Agreements from escrow upon payment of the
Closing Payments as defined in the Escrow Agreement of even date herewith (the
"Escrow Agreement") pursuant to the Escrow Agreement.
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ARTICLE II
MERGER
2.1 Simultaneously upon the Closing, the parties shall consummate a merger
agreement of even date in the form attached hereto as EXHIBIT 2.1 ("Merger
Agreement"). The Merger Agreement shall provide that simultaneously upon the
Closing, Technology shall merge into TechAlt, or an acquisition subsidiary of
TechAlt, with TechAlt being the parent entity (the "Merger"). Pursuant to this
Agreement, Masanek hereby agrees to vote all his shares of Technology in favor
of the Merger and the Merger Agreement upon Closing.
2.2 Pursuant to the Merger Agreement, effective immediately upon Closing, the
shares of TechAlt issued in connection with the Merger Agreement shall be as set
forth on EXHIBIT 2.2.
2.3 The parties acknowledge and agree that the four million six hundred seventy
six thousand five hundred sixty (4,676,560) shares of common stock that TechAlt
issues to Masanek in connection with the Merger ("Masanek Shares"), and the four
million eight hundred sixty seven thousand four hundred forty (4,867,440) shares
of common stock that TechAlt issues to Solomon in connection with the Merger
shall be issued to Masanek and Solomon, respectively, in exchange for their
shares of common stock in Technology pursuant to the terms of the Merger
Agreement.
ARTICLE III
REPRESENTATIONS OF TECHALT AND SOLOMON
In addition to the representations and warrants set forth in Article II of this
Agreement, TechAlt and Solomon hereby represent and warrant to Masanek the
following:
3.1 Organization and Standing. TechAlt is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Nevada. Upon
Closing TechAlt will be authorized to do business in Illinois and has all
necessary power to own (or hold under lease or license) its properties and
assets and to carry on its business as now conducted.
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3.2 Authorized and Effective Agreement. TechAlt and Solomon have all requisite
power and authority to execute, deliver and perform their obligations under this
Agreement, the Related Agreements, the other agreements contemplated hereby and
each of the transactions contemplated hereby, and the execution, delivery and
performance by TechAlt and Solomon of this Agreement, the Related Agreements,
the other agreements contemplated hereby and each of the transactions
contemplated hereby have been duly and validly authorized by all necessary
action in respect thereof. This Agreement and the Related Agreements constitute
a legal, valid and binding obligation of TechAlt and Solomon, enforceable
against TechAlt and Solomon in accordance with their terms.
TechAlt does hereby represent and warrant that the person so executing this
Agreement, the Related Agreements and the documents to be delivered pursuant
hereto is its authorized agent.
3.3 Title and Authority. TechAlt shall have on the Closing the full right and
authority to sell, transfer, and issue all of the Masanek Shares to Masanek
hereunder free and clear of all liens, pledges, security interests, claims,
charges, encumbrances, and restrictions of any kind whatsoever (with the
exception of restrictions imposed by the securities laws of the United States of
America and Blue Sky Laws). Except for this Agreement and the Related
Agreements, there are no outstanding or authorized options, warrants, rights of
refusal, contracts, calls, puts, rights to subscribe, conversion rights or other
agreements or commitments or any right or privilege whether pre-emptive or
contractual or of any other kind or character including convertible securities,
warrants, or convertible obligations of any nature to which TechAlt is a party
or which are binding upon TechAlt providing for the issuance, disposition,
subscription or acquisition of any of the Masanek Shares.
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3.4 Solomon's Title and Authority. Immediately prior to the Closing, Solomon is
the unqualified and unconditional owner of 4,544,000 issued and outstanding
shares of TechAlt; provided, however, that all Parties understand that certain
of the Solomon Shares are currently held in escrow pending execution of this
Agreement. Solomon will be the unqualified and unconditional owner of 4,867,440
shares of TechAlt after the Closing (the "Solomon Shares").
3.5 Capitalization. The authorized capital stock of TechAlt as of the date of
this Agreement is set forth in EXHIBIT 3.5. The issued and outstanding capital
stock of TechAlt as of the date of the Closing is set forth in EXHIBIT 3.5. On
the Closing no other securities of TechAlt will be outstanding or authorized for
issuance unless set forth in EXHIBIT 3.5. Except as disclosed in EXHIBIT 3.5 or
as otherwise specifically provided or contemplated in this Agreement, on the
Closing: (i) no holder of any security of TechAlt (a) will be entitled to any
preemptive rights which have not been waived with respect to the transaction
contemplated by this Agreement or (b) will have any right of first refusal to
purchase capital stock of TechAlt to be issued and sold or otherwise transferred
to any shareholder of TechAlt pursuant to this Agreement which has not been
waived with respect to the transaction contemplated by this Agreement, (ii)
TechAlt has not granted any options, warrants or rights to purchase any of its
capital stock or authorized any of its capital stock for issuance, and (iii) no
instrument or security is outstanding which is convertible into or exchangeable
for, or which entitles the holder thereof to capital stock of TechAlt. There are
no outstanding or authorized stock appreciation, phantom stock or similar rights
with respect to TechAlt. There are no voting trusts, proxies, or any other
agreements or understandings with respect to the voting of the capital stock of
TechAlt.
3.6 Source of Masanek Shares. All of the Masanek Shares transferred and issued
to Masanek pursuant to the Merger Agreement shall be shares transferred and
issued by TechAlt and are not sold or transferred from the shares of TechAlt
owned by Solomon as of the date of the Merger (the "Merger Date").
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3.7 No Breach. The execution, delivery and performance by TechAlt and Solomon of
this Agreement and the Related Agreements and the consummation of each of the
transactions contemplated hereby shall not (a) conflict with or result in a
breach of any provision of the articles of incorporation or bylaws of TechAlt;
(b) constitute or result in a breach of any term, condition, or provision of,
constitute a default under, result in the termination or acceleration of, or
create in any party the right to accelerate, terminate, modify or cancel any
contract, agreement, note, bond, indenture, mortgage, loan agreement, lease,
sublease, license, sublicense, permit or other instrument or obligation to which
TechAlt and/or Solomon is a party or by which TechAlt and/or Solomon is bound or
affected or to which any of the assets of TechAlt are bound or affected; or (c)
violate or require any consent or notice under any statute, regulation, rule,
judgment decree, order, stipulation, injunction, charge or other restriction of
any government, governmental agency or court to which TechAlt and/or Solomon or
any of TechAlt's and/or Solomon's assets are subject or by which TechAlt and/or
Solomon or any of its or his assets are bound or affected.
3.8 Financial Statements. The financial statements of TechAlt as disclosed in
the 10-QSB Quarterly Report filed on November 15, 2004 with the United States
Securities and Exchange Commission are a true and correct representation of the
financial position and results of operations of TechAlt as of the respective
dates of the financial statements. The various income statements and ledger
statements of TechAlt provided to Masanek prior hereto relative to the period
between August 20, 2004 and the date of this Agreement are, to the best of
TechAlt's and Solomon's knowledge, information and belief, true and complete.
3.9 Absence of Undisclosed Liabilities. TechAlt, to the best of its knowledge
and its belief, does not have any undisclosed debts, liabilities or obligations
of any nature (whether accrued, absolute, contingent, direct, indirect,
perfected, inchoate, unliquidated or otherwise, whether due or to become due)
arising out of transactions entered into at or prior to the Closing, or any
transaction, series of transactions, action or inaction at or prior to the
Closing, or any state of facts or condition existing at or prior to the Closing
(regardless of when any such liability or obligation is asserted), including,
without limitation, tax liabilities unrelated to ordinary operations and or
arising out of this Agreement, except (a) liabilities and obligations under
agreements, contracts, leases or commitments described on the Contract Schedule
attached hereto as EXHIBIT 3.9A (none of which relates to any breach of
contract, breach of warranty, tort, infringement or violation of law or arose
out of any charge, complaint, action, suit, proceeding, hearing, investigation,
claim or demand); (b) liabilities and obligations to the extent specifically
reflected in GROUP EXHIBIT 3.8; and (c) liabilities and obligations incurred
after the most recent income statements and ledger statements provided in GROUP
EXHIBIT 3.8 in the ordinary course of business, otherwise in accordance with the
terms of this Agreement as disclosed in EXHIBIT 3.9B.
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3.10 Absence of Certain Developments. Other than the liabilities and obligations
specifically reflected in GROUP EXHIBIT 3.8, TechAlt and/or Solomon have not on
behalf of TechAlt except to the extent disclosed on EXHIBIT 3.9B:
a. incurred any liability under agreements or otherwise, except
liabilities incurred and obligations entered into in the ordinary course of
business, which individually or in the aggregate have a materially adverse
effect on the financial or other condition, business, prospects, assets or
goodwill of TechAlt; or
b. discharged, satisfied or agreed to discharge or satisfy any lien,
charge, or encumbrance, or paid any obligation or liability, absolute, accrued,
contingent or otherwise, whether due or to become due, except obligations
arising in the ordinary course of business, which individually or in the
aggregate have a materially adverse effect on the financial or other condition,
business, prospects, assets, or goodwill of TechAlt; or
c. except in the ordinary course of business (i) sold, transferred,
licensed or entered into any agreement relating to the sale, transfer or
licensing of any tangible or intangible asset, including without limitation, any
proprietary asset; or (ii) entered into a lease of real property, machinery,
equipment or buildings; or
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d. become aware of any destruction to or damage or loss to any tangible or
intangible asset of TechAlt that materially or adversely affects the financial
condition, business or prospects of TechAlt; or
e. amended or terminated any contract, agreement or license to which
TechAlt is a party, except during the ordinary course of business; or
f. sold, assigned, transferred, abandoned or permitted to lapse any of its
proprietary rights or other intangible assets or disclosed any proprietary,
confidential information to any person or entity or granted any license or
sublicense of any rights under or with respect to any of its proprietary rights;
or
g. made or granted any bonus, compensation increase or benefit increase to
any employee, officer or director, or made any other change in employment terms
for any employee, officer or director, including without limitation, for
Solomon; or
h. made any capital expenditures or commitments therefore such that the
aggregate outstanding amount of unpaid obligations and commitments with respect
thereto shall comprise in excess of $50,000 on the Closing; or
i. made any loans or advances by TechAlt to any person or entity or
entered into any guaranty by TechAlt of any loan; or
j. issued or sold any notes, bonds or debt, securities or any equity
securities, or any securities convertible, exchangeable or exercisable into any
equity securities, warrants, options or other rights to acquire equity
securities; or
k. borrowed any amount or incurred or became subject to any liabilities,
except for current liabilities disclosed herein and incurred in the ordinary
course of business; or
l. amended or authorized the amendment of its articles of incorporation or
bylaws; or
m. entered into or agreed to enter into any transaction other than in the
ordinary course of business.
3.10.1 No party has accelerated, terminated, modified or cancelled any
contract, lease, sublease, license or sublicense or other agreement set forth in
the attached Contract Schedule (EXHIBIT 3.9A).
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3.11 Litigation. Other than the Litigation, there are no lawsuits or
administrative proceedings or claims, including product liability claims pending
against TechAlt, its employees or consultants as it relates to their work for
TechAlt, nor to the best of their knowledge are there any potential or
threatened litigation or claims against TechAlt, its employees or consultants as
it relates to their work for TechAlt, its assets or business and there are no
lawsuits or administrative proceedings or claims brought by TechAlt. To the best
of its knowledge, TechAlt is not in material default under any lease, license,
policy, contract or agreement with any other person or entity and all material
contracts of TechAlt have been disclosed to Masanek, and are in full force and
effect.
3.12 Compliance With Laws. To the best of its knowledge, TechAlt has in all
material respects complied with all applicable federal, state, provincial and
local laws including all federal and state securities registration and/or
exemption requirements.
3.13 Taxes. To the best of its knowledge, all federal, state and local income
tax and information returns have been filed as required by law and all income
taxes required to be paid by TechAlt have been paid and adequate reserves for
payment of such taxes have been established for all taxes not currently payable.
Since the last period or periods for which returns have been filed, to the best
of its knowledge, TechAlt has not become liable to pay any income taxes,
assessments, fees, penalties, interest or other governmental charges other than
in the ordinary course of business. Provisions have also been made for any other
contingent income tax liabilities.
3.14 No Infringement. To the best of its knowledge, the use and/or ownership of
TechAlt's products or systems designed, distributed, marketed or sold by TechAlt
does not infringe, violate or constitute misuse or misappropriation of any
existing patent, trademark, service xxxx, trade name, copyright (or obligation
for any patent or registration of trademark, service xxxx or copyright) and does
not violate or constitute misuse or misappropriation of any trade secret or any
other proprietary right of any third party, and, with the exception of claims
made by the Plaintiffs pursuant to the Litigation, TechAlt has not been charged
or threatened with infringement, misappropriation or misuse of any patent,
trademark, trade name, service xxxx, copyright, trade secret, know-how or
confidential information or data or any other proprietary right of a third party
with respect to the use of said products and systems in the operation of its
business, nor has TechAlt been requested to take a license under any such third
party rights.
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3.15 No other Consideration to Solomon. Solomon has not and will not receive any
other consideration or payment, including, without limitation, any capital stock
of TechAlt, from any source other than as set forth in the Employment Agreement
originally entered into between Solomon and TechAlt (formerly known as Dendo
Global Corporation) and filed with the SEC, the Merger Agreement, this Agreement
and the Related Agreements.
3.16 Warranty Against Assignment of Claims. Defendants represent and warrant
that they are the sole and lawful owner of all right, title and interest in and
to every claim released herein and that they have not heretofore assigned or
transferred, or purported to assign or transfer, to any person or entity, any of
the claims being released pursuant to this Agreement.
3.17 Accuracy of Representations and Warranties. All representations and
warranties of TechAlt and/or Solomon in this Agreement shall be true and
accurate as of the Closing as though made at the time unless TechAlt and/or
Solomon notifies Masanek otherwise in writing prior to Closing.
ARTICLE IV
REPRESENTATIONS OF MASANEK AND SBD
Masanek and SBD represent and warrant to TechAlt as follows (SBD makes no
representation and/or warrant as to Section 4.1):
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4.1 Title and Authority. Masanek shall have upon Closing the full right and
authority to sell and transfer all of his shares of common stock in Technology
("Masanek's Technology Shares") hereunder free and clear of all liens, pledges,
security interests, claims, charges, encumbrances, and restrictions of any kind
whatsoever. Except for this Agreement, there are no outstanding or authorized
options, warrants, rights of refusal, contracts, calls, puts, rights to
subscribe, conversion rights or other agreements or commitments or any right or
privilege whether pre-emptive or contractual or of any other kind or character
including convertible securities, warrants, or convertible obligations of any
nature to which Masanek is a party or which are binding upon Masanek providing
for the issuance, disposition, subscription or acquisition of any of Masanek's
Technology Shares. Masanek does hereby represent and warrant that he has the
full right, power, authority and capacity to execute this Agreement, the Related
Agreements and documents to be delivered pursuant hereto.
4.2 No Breach. The execution, delivery and performance by Masanek and SBD of
this Agreement and the Related Agreements and the consummation of each of the
transactions contemplated hereby shall not (a) conflict with or result in a
breach of any provision of the certificate of incorporation or articles of
incorporation or bylaws of SBD; (b) constitute or result in a breach of any
term, condition, or provision of, constitute a default under, result in the
termination or acceleration of, or create in any party the right to accelerate,
terminate, modify or cancel with respect to any contract, agreement, note, bond,
indenture, mortgage, loan agreement, lease, sublease, license, sublicense,
permit or other instrument or obligation to which Masanek or SBD is a party or
by which Masanek or SBD is bound or affected or to which any of the assets of
Masanek or SBD are bound or effected; or (c) violate or require any consent or
notice under any statute, regulation, rule, judgment decree, order, stipulation,
injunction, charge or other restriction of any government, governmental agency
or court to which Masanek or SBD or any of Masanek's or SBD's assets are subject
or by which Masanek or SBD or any of its assets are bound or affected.
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4.3 The SBD System. SBD filed a Patent Application No. 10/192,941 on July 11,
2002, which relates to the SBD System (defined in Section 12 below).
To the best of its knowledge, SBD System contains only those items and rights
which are: (i) owned by Masanek and/or SBD; (ii) in the public domain; or (iii)
rightfully used by Masanek and/or SBD. Masanek and/or SBD has all rights in the
SBD System necessary to carry out Masanek's and/or SBD's current activities and,
to the knowledge of Masanek and/or SBD, Masanek and/or SBD's future activities
to the extent such future activities are already planned, including without
limitation, to the extent required to carry out such activities, rights to make,
use, reproduce, modify, adopt, create derivative works based on, translate,
distribute (directly and indirectly), transmit, display and perform publicly, or
license, assign and sell, the SBD System.
To the best of its knowledge, the reproduction, manufacturing, distribution,
licensing, sublicensing, sale or any other exercise of rights in the SBD System,
product, work, technology or process as now used or offered or proposed for use,
licensing or sale by Masanek and/or SBD does not infringe on any patent, design
right, trademark, trade name, service xxxx, trade dress, Internet domain name,
copyright, database, statistical model, technology, invention, supplier list,
trade secret, computer software program or application of any person, anywhere
in the World. Masanek and/or SBD has not received notice of any claims (i)
challenging the validity, effectiveness or ownership by Masanek and/or SBD of
the SBD System, or (ii) to the effect that the use, distribution, licensing,
sublicensing, sale or any other exercise of rights in any product, work,
technology or process as now used or offered or proposed for use, licensing,
sublicensing or sale by Masanek and/or SBD or its agents or use by its customers
infringes or will infringe on any intellectual property or other proprietary or
personal right of any person. To the knowledge of Masanek and/or SBD, no such
claims have been threatened by any person, nor are there any valid grounds for
any bona fide claim of any such kind. All of the rights within the SBD System
are enforceable and subsisting. To the knowledge of Masanek and/or SBD, there is
no unauthorized use, infringement or misappropriation of the SBD System by any
third party, employee or former employee.
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To the best of its knowledge, all personnel, including employees, agents,
consultants and contractors, who have contributed to or participated in the
conception and development of the SBD System on behalf of Masanek and/or SBD,
either (i) have been a party to an enforceable "work-for-hire" arrangement or
agreements with Masanek and/or SBD in accordance with applicable national and
state law that has accorded Masanek and/or SBD full, effective, exclusive and
original ownership of all tangible and intangible property thereby arising, or
(ii) have executed appropriate instruments of assignment in favor of Masanek
and/or SBD as assignee that have conveyed to Masanek and/or SBD effective and
exclusive ownership of all tangible and intangible property thereby arising, and
at all times, SBD has taken reasonable measures to protect the SBD System as
confidential information.
To the best of their knowledge, Masanek and/or SBD does not owe any royalties or
other payments to third parties in respect of the SBD System.
To the best of its knowledge, SBD represents and warrants it has good title to
the SBD System, the full right and authority to sell and transfer same, and that
said property is sold free and clear of all liens, claims, and encumbrances.
SBD acknowledges and agrees that TechAlt shall have all rights as defined in the
Assignment and Xxxx of Sale to use any tool software developed by Xxx Xxxxxxxx
on behalf of SBD for the SBD System.
4.4 Warranty Against Assignment of Claims. Masanek and SBD represent and warrant
that they are the sole and lawful owner of all right, title and interest in and
to every claim released herein and that they have not heretofore assigned or
transferred, or purported to assign or transfer, to any person or entity, any of
the claims being released pursuant to this Agreement.
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4.5 Accuracy of Representations and Warranties. All representations and
warranties of Masanek and SBD in this Agreement shall be true and accurate as of
the Closing as though made at such time unless Masanek or SBD notifies TechAlt
otherwise in writing prior to Closing.
ARTICLE V
MODIFICATION OF PREVIOUS TRANSACTION AGREEMENTS
5.1 Simultaneously with the Closing, the Defendants shall execute those
agreements necessary to cause all of the agreements arising out of, or related
to, the License Agreement, the Financing pursuant to the August 24, 2004
Securities Purchase Agreement and all related agreements, including without
limitation, those agreements filed with the U.S. Securities and Exchange
Commission pursuant to Form 8-K on August 27, 2004, ("Transaction Agreements")
to be consistent with this Agreement and the Related Agreements and to not
constitute or result in a breach of any of the Transaction Agreements,
including, without limitation, the waivers with the Sunrise Investors pursuant
to Section 9.2 ("Sunrise Investor Waivers"), copies of all such waivers shall be
delivered to Masanek by TechAlt at Closing. In addition, in the event TechAlt
does not receive the TechAlt Financing by the Sunrise Financing Deadline, within
fourteen (14) days after the Sunrise Financing Deadline, TechAlt shall obtain
from Sunrise Securities Corp. an executed waiver in which Sunrise Securities
Corp. will agree that it shall not earn or receive any compensation for any
Outside Financing Sources obtained by Masanek pursuant to Article 19.2 of this
Agreement notwithstanding paragraph 1(b), 6 or any other applicable paragraph
contained in the Financial Advisory and Investment Banking Agreement dated on or
about June 25, 2004.
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ARTICLE VI
PAYMENTS TO MASANEK
6.1 In addition to the other consideration described herein, TechAlt shall
deposit with the Escrow Agents by wire transfer to Xxxxxxxx Xxxxxx & Associates,
Ltd. Segregated Funds Account no later than 5:00 p.m. (CST) on December 15, 2004
("Escrow Deadline") the sum of Seven Hundred Ninety Thousand and no/100 Dollars
($790,000.00),which sum is the Closing Payments referred to in Section 3(a) of
the Escrow Agreement. In the event TechAlt fails to deposit said Closing
Payments (which also includes the Sunrise Investors Waivers) in escrow by the
Escrow Deadline, Defendants acknowledge and agree the Escrow Agents have been
directed to seek to have entered without further notice the Agreed Order
attached hereto as EXHIBIT 6.1 in the Litigation. Furthermore in the event the
Agreed Order is entered pursuant to the terms of the Escrow Agreement, the
Defendants shall take any and all action necessary to unwind and/or rescind any
and all agreements entered into by the Defendants including, but not limited to,
the Intellectual Property License Agreement entered into between TechAlt and
Technology on or around August 20, 2004 (the "License Agreement") and
effectively re-establish the status quo as it existed prior to the License
Agreement.
6.2 In addition, on the Execution Date, TechAlt shall enter into a Secured
Convertible Promissory Note in the form attached hereto as EXHIBIT 6.2.(A). The
Secured Convertible Promissory Note shall be secured by the assets of TechAlt as
provided in the Security Agreement of even date in the form attached hereto as
EXHIBIT 6.2.(B), Which TechAlt shall also sign on the Execution Date.
6.3 The payments set forth in paragraph 6.1 and 6.2 herein and all other
consideration set forth herein shall be allocated as set forth on EXHIBIT 6.3.
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ARTICLE VII
CONSULTING AGREEMENT
7.1 On the Execution Date, TechAlt shall enter into a Consulting Agreement with
SBD in the form attached hereto as EXHIBIT 7.1.
ARTICLE VIII
SALES AGREEMENT
8.1 On the Execution Date, TechAlt shall enter into a Sales Agreement with SBD
in the form attached hereto as EXHIBIT 8.1.
ARTICLE IX
WARRANTS ISSUED TO MASANEK/ADDITIONAL COMMON STOCK
9.1 On the Execution Date, TechAlt shall execute a warrant entitling Masanek to
purchase seven hundred fifty thousand (750,000) shares of common stock of
TechAlt, at the exercise price of One Dollar ($1.00) per share, pursuant to the
Warrant ("Masanek Warrant") of even date in the form attached hereto as EXHIBIT
9.1
9.2 Pursuant to the Sunrise Investors Waiver to be delivered at Closing by
TechAlt, the Sunrise Investors (as defined in Section 19.1) will agree that
there shall be no adjustment of the Exercise Price (as that term is defined
therein) of their Warrants (as provided in Section 2 of said Warrants) to the
extent such provisions would apply on account of the issuance to (i) Sunrise
Securities Corp. of 840,000 shares of common stock and warrants to purchase
800,000 shares of common stock (exercise price of $.50 per share) pursuant to
the Financial Advisory and Investment Banking Agreement (the "Sunrise Investment
Banking Fee"), (ii) Sunrise Financial Group, Inc. of 240,000 shares of common
stock and options to purchase 1,000,000 shares of common stock (exercise price
of (a) $.50 per share on options to purchase 500,000 shares of common stock and
(b) $1.00 per share on options to purchase 500,000 shares of common stock)
pursuant to the Public Relations Retainer Agreement (the "Sunrise Public
Relations Fee"), and (iii) the common stock issued to Masanek to the Merger
Agreement. In exchange therefore, Masanek and SBD (or their assigns) agree that
there shall be no adjustment to the (i) Conversion Price (as that term is
defined therein) of the Secured Convertible Promissory Note attached hereto as
EXHIBIT 6.2A, and (ii) Exercise Price (as that term is defined therein) of the
Masanek Warrant, on account of shares (a) to be issued by virtue of the Sunrise
Investment Banking Fee, the Sunrise Public Relations Fee, or (b) shares issuable
prior to the Closing on account of penalties pursuant to Section 2(f) of the
Sunrise Investors' Registration Rights Agreements and pursuant to Section (II)
(regarding Dividends) of TechAlt's Certificate of Designation filed with the
Secretary of State of the State of Nevada on August 23, 2004 in connection with
the Financing.
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ARTICLE X
REGISTRATION OF RIGHTS
10.1 On the Execution Date, TechAlt shall enter into the Registration Rights
Agreement of even date in the form attached hereto as EXHIBIT 10.1., pursuant to
which Masanek shall receive full registration rights (equal to any other party
in the Financing, including without limitation, the original TechAlt
shareholders, the Sunrise Investors, Sunrise Securities Corp., and Excipio Group
SA) to (i) all of his shares of common stock in TechAlt (4,676,560), (ii) the
common stock shares issuable upon exercise of the Masanek Warrant and (iii) the
common stock shares issuable upon conversion of the Secured Convertible
Promissory Note attached hereto as EXHIBIT 6.2A.
ARTICLE XI
RIGHT OF FIRST REFUSAL
11.1 On the Execution Date, TechAlt, Masanek, and Solomon shall enter into a
Right of First Refusal Agreement of even date in the form attached hereto as
EXHIBIT 11.1, pursuant to which for a period of one (1) year from Closing (a)
Masanek shall have a right of first refusal to purchase the Solomon Shares, and
(b) Solomon or TechAlt shall have a right of first refusal to purchase the
Masanek Shares and the TechAlt common stock shares issuable upon (i) exercise of
the Masanek Warrant and (ii) conversion of the Secured Convertible Promissory
Note.
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ARTICLE XII
SBD INVENTORY AND INTELLECTUAL PROPERTY
12.1 Upon Closing, and pursuant to the Assignment and Xxxx of Sale attached
hereto as EXHIBIT 12.1, SBD shall sell, transfer, and assign all right, title,
and interest in and to all SBD intellectual property and completed inventory and
new work in progress related to the SBD System as set forth on SCHEDULES A and
B, a description of which is contained in the Assignment and Xxxx of Sale (the
"SBD System"). SBD shall retain and the Defendants waive any and all right,
title and interest to all other assets of SBD not specified in Schedule A,
including without limitation, intellectual property rights not related to the
SBD System.
ARTICLE XIII
RIGHT OF MASANEK TO CERTAIN INFORMATION
13.1 For as long as Masanek is (a) a shareholder owning, either personally or as
majority shareholder in a separate entity owning, five percent (5%) of TechAlt's
issued common stock or its successor and/or assign, or (b) owed any sums under
the Secured Convertible Promissory Note, Masanek shall have the right to receive
all documents and information that all directors of TechAlt would otherwise
receive, including without limitation, to the extent that such documents are
created or exist or such information has been physically documented or otherwise
recorded for purposes separate from the obligation created in this Section 13.1,
all notices of board meetings, board minutes, correspondence, financial
statements, monthly statements of operation, including without limitation, a
balance sheet, an income and expense statement, a statement of cash flow, a
sales information report, purchase orders and invoices, a schedule of aged
accounts receivables and payables, a comparison of actual operating results to
the approved budget for such month and year to date, together with a projection
of the remainder of the year, and strategic plans. All such documents or
information actually provided to all existing directors will also be provided to
Masanek upon request by Masanek. In addition, all other documents or information
that all directors would receive which Masanek requests shall be provided to
Masanek within two (2) business days of such request.
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13.2 Masanek hereby expressly agrees and understands that certain of the
documents and information that may be disclosed pursuant to Section 13.1 may be
material, highly confidential and not available to the investing public,
shareholders and/or consultants of TechAlt and may be considered "inside"
information (the "Confidential Information"). Further, United States securities
regulations, which regulate transactions in corporate securities (stocks and
bonds), impose severe sanctions against the use of "inside" information in the
purchase and sale of securities by "insiders" of a company for their own benefit
and profit. "Inside" information includes any material non-public information
which might be a factor in a decision to buy or sell a particular security. By
virtue of the disclosure of the Confidential Information, not only may Masanek
be considered an "insider", but family members, friends, brokers or anyone to
whom the information is communicated by Masanek may be deemed an "insider" as
well. "Securities" include not only those of TechAlt, but also the securities of
any company of which Masanek has acquired material, non-public information as a
result of Masanek's information rights pursuant to Section 13.1. Masanek hereby
agrees that he shall retain in confidence all such Confidential Information and
shall prevent disclosure of such Confidential Information to third parties.
These restrictions shall not apply to Confidential Information which: (a) at the
time of disclosure is available to the public through no fault of Masanek; or
(b) is required to be disclosed pursuant to judicial process, court order or
administrative request; provided, however, that Masanek shall notify TechAlt of
any such process, order or request sufficiently prior to disclosing such
Confidential Information so as to permit TechAlt to seek a protective order.
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13.3 Masanek shall receive notice of and have the right to attend all Board of
Director meetings of TechAlt. Notwithstanding the same, Masanek shall not be
entitled to participate in said meetings and is prohibited from possessing or
using during such meetings any recording device or stenographic or similar
equipment, but may attend solely in the capacity as an observer and shall
otherwise have no voting power at any such meetings and shall not be considered
with respect to attendance taking or quorum calculating purposes.
ARTICLE XIV
FINDER FEE TO MASANEK
14.1 In the event Masanek locates any buyer acceptable to TechAlt in its sole
and absolute discretion which buyer acquires TechAlt ("Acquisition"), upon
closing of said Acquisition, Masanek shall receive a ten percent (10%) fee equal
to the total consideration received by or to be received directly or indirectly
by TechAlt, its shareholders, affiliates and/or subsidiaries ("Consideration")
in such Acquisition (the "Finder Fee"), which Finder Fee shall be paid in one
lump sum by wire transfer or cashier's check made payable to Masanek or his
assignee upon the closing.
14.2 For purposes of this Agreement "Acquisition" shall mean any sale or other
disposition of TechAlt, including but not limited to, a merger, consolidation,
recapitalization, corporate restructuring or other business combination of
TechAlt or a transfer or option to transfer all or any portion of the stock or
assets of TechAlt to any person or entity.
14.3 For purposes of this Agreement, "Consideration" shall mean cash, cash
equivalents, equity retained, securities, notes made to TechAlt or its successor
beneficiaries, liabilities assumed by purchasers, earnouts, royalties, real
property sold or leased, equipment and/or intellectual properties sold or
leased, or employment management, or consulting agreements in excess of fair
market rates, payments in respect of non-competition agreements and stock or
other securities that are received in exchange for TechAlt's stock or assets.
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ARTICLE XV
ATTORNEYS' FEES
15.1 Pursuant to Article 6.1 of this Agreement, TechAlt shall pay the amount of
One Hundred Sixty Five Thousand and no/Dollars ($165,000.00) as payment of SBD's
and Masanek's attorneys' fees as follows: (a) $140,000 at Closing as part of the
Closing Payments as defined in the Escrow Agreement and (b) $25,000 which is
included as part of the Secured Convertible Promissory Note.
15.2 SBD and Masanek shall be responsible for and pay the balance of their
attorneys' fees and costs arising out of this Litigation.
15.3 TechAlt, and Technology shall be responsible for and pay their own
respective attorneys' fees arising out of the Litigation and TechAlt is hereby
permitted to pay all the attorneys' fees and costs of Solomon in connection with
or arising out of the Litigation.
ARTICLE XVI
CONFIDENTIALITY
16.1 The terms of this Agreement and the Related Agreements, as well as all
communications between the parties regarding settlement of the Litigation, the
facts underlying the Litigation, and all claims that were filed or could have
been filed in the Litigation, shall be kept strictly confidential by the parties
and shall not be disclosed by them to any third parties, except (a) to lawyers
and financial advisors retained by the parties, for which advance written
consent is not required; (b) to the extent that the above referenced information
is public knowledge due to reporting to SEC and other federal and state
governmental agencies and units; or (c) to the extent such disclosure is
required pursuant to lawful subpoenas, decrees, governmental regulations, or as
required testimony in a legal proceeding or proceedings. Notwithstanding the
foregoing, any party compelled to disclose such information under (c) above
shall take all reasonable actions to provide the other parties with notice of
such requested disclosure at least ten (10) days ("Disclosure Notice") before
actual disclosure of such information, or as soon as practicable in the event
that the Court, via court order, or subpoena, shall compel such disclosure of
information in less than 10 days.
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ARTICLE XVII NON-DISPARAGEMENT
17.1 For a period of three (3) years after the Closing, none of the parties,
shall disparage or make any negative comment or innuendo relating to any party
or their respective family, attorneys, financial advisors, company or its
affiliates, predecessors, officers, directors, employees, agents and
representatives.
ARTICLE XVIII
MUTUAL RELEASES
18.1 In exchange for the consideration herein, Plaintiffs and Defendants do
hereby mutually remise, release and forever discharge each other and their
respective families, spouses, heirs, legatees, beneficiaries, devisees,
trustees, participants, personal representatives, executors, estates,
accountants, financial advisors (including, by way of example, but without
limitation, Xxxxx Coloris and his agents and representatives, Excipio Group,
S.A. and its agents and representatives, Sunrise Securities Corp., and its
agents and representatives, Xxxxxxx XxXxx, Xxxx XxXxx, the Investors and their
agents and representatives, the Appleton Group, LLC and its agents and
representatives and Xxx Xxxxxxxx) , attorneys, agents, servants, employees,
predecessors, successors, subsidiaries, affiliates, holding companies, parent
companies, related companies and divisions, assigns, officers, directors,
shareholders, and representatives, in both their official and individual
capacities, of and from all claims, debts, dues, liabilities, obligations, and
causes of action of every kind and nature whatsoever that they have or may have
against each other because of anything done or omitted to be done from the
beginning of the world to the date of this Agreement, and particularly of and
from any and all claims, debts, dues, liabilities, obligations (including any
and all debts, dues, liabilities, and obligations arising out of or in
connection with either SBD's and/or Masanek's arrangements and/or working
relationship with Technology, Solomon and/or TechAlt at any time prior hereto)
or causes of action ("Claims") arising by and between any of the parties by
virtue of the facts as alleged in the Litigation, including without limitation,
(a) all Claims alleged, pleaded or which could have been alleged or pleaded or
otherwise related to the Litigation, including without limitation, all Claims
arising out of any confidentiality agreement, and/or (b) all Claims which could
have been alleged or pleaded in any other litigation, administrative proceeding
or any other legal proceeding between the parties, whether in law or in equity
or before administrative agencies or departments, arising from, related to, or
in any way connected with, directly or indirectly, (i) any parties' actions or
inactions, including without limitation, actions or inactions, as a shareholder,
officer, director, and/or employee of TechAlt, Technology, and/or SBD, (ii) the
parties' various relationships with each other, (iii) the various parties'
status as officers, directors, shareholders and/or employees of TechAlt,
Technology, and/or SBD, and (iv) the cessations of those relationships.
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18.2 The parties intend hereby to release all unknown and unanticipated injuries
and damages, if any, and in signing this Agreement have not relied upon any
representations made by any person or party or the agent of any person or party
hereby released.
18.3 The parties acknowledge and agree that this release does not release any
and all rights, claims or obligations created by this Agreement and the Related
Agreements or any Claims that accrue or arise after the Closing.
18.4 EACH OF THE PARTIES WAIVE AND RELINQUISH ALL RIGHTS AND BENEFITS THEY MAY
HAVE UNDER ANY FEDERAL OR STATE LAW PROVIDING GENERALLY THAT A GENERAL RELEASE
DOES NOT EXTEND TO CLAIMS WHICH THEY DO NOT KNOW OR SUSPECT EXIST IN THEIR FAVOR
AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY THEM MUST HAVE
MATERIALLY AFFECTED THEIR SETTLEMENT.
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ARTICLE XIX
FURTHER FINANCING
The parties agree that subsequent to Closing, the Parties shall have the
opportunity to obtain additional funding as follows:
19.1 In the event the Closing Payments are received on or before 5:00 p.m. (CST)
on December 15, 2004, TechAlt shall have until 5:00 p.m. (CST) on January 15,
2005 to receive at least One Million Five Hundred Thousand Dollars ($1,500,000)
("Investment") from the current investors ("Sunrise Investors"), party with
TechAlt to that certain Securities Purchase Agreement, Registration Rights
Agreement, Warrants, Additional Warrants and Additional Investment Rights
entered into on or around August 24, 2004 or from one or more other investors
provided financing terms are "equal to or better" than the Sunrise Investor
financing described on EXHIBIT 19.1, including without limitation, the
additional investors who have made commitments to invest up to $750,000 pursuant
to the terms of the Transaction Agreements ("Other Investors"), (the "TechAlt
Financing"). The Investment shall be determined on the aggregate investments
made by the Sunrise Investors and Other Investors subsequent to the Closing (and
after the Closing Payments). TechAlt agrees that it will not accept more than an
aggregate of four million seven hundred fifty thousand dollars ($4,750,000.00)
pursuant to the TechAlt Financing without Masanek's written consent. This
$4,750,000 limit shall be determined as the aggregate investments made by the
Sunrise Investors and Other Investors at all times to TechAlt through January
15, 2005.
19.2 In the event of the Closing, but TechAlt does not receive the TechAlt
Financing on or before 5:00 p.m. (CST) on January 15, 2005 (the "Sunrise
Financing Deadline"), Masanek shall have the right to present to TechAlt
financing sources other than the Financing through the Sunrise Investors and
Other Investors pursuant to the Transaction Agreements ("Outside Financing
Sources"), which Outside Financing Sources shall be accepted by TechAlt and
Solomon provided the terms offered by such Outside Financing Sources are on
"equal or better terms" as those set forth on EXHIBIT 19.1 and are not in
violation of any federal or state law or regulation.
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19.3 Within seven (7) days of Closing, TechAlt shall deliver to Masanek for due
diligence purposes the documents identified on EXHIBIT 19.3 for the purpose of
Masanek obtaining possible Outside Financing Sources, and subsequent to Closing
and until TechAlt obtains TechAlt Financing, TechAlt will respond to Masanek's
reasonable requests for additional diligence as necessary for Masanek to secure
an Outside Financing Source.
19.4 For a period of two (2) years after the Closing, and subsequent to any
TechAlt Financing or financing provided pursuant to Outside Financing Sources,
in the event TechAlt intends to enter into any financing agreement, whether debt
or equity ("Subsequent Financing Agreement"), prior to entering into or
finalizing such agreement, TechAlt shall first give Masanek written notice of
TechAlt's intent to seek to obtain or enter into a Subsequent Financing
Agreement, including in said notice all the relevant terms of such financing.
Masanek shall have the right to present proposals for such financing within the
time frames set by TechAlt and to present terms for such financing. In the event
third parties present terms, Masanek shall have ten (10) business days ("Notice
Period") from the receipt of TechAlt's notice of such third party terms in which
to determine if Masanek or his designee can offer financing for the benefit of
TechAlt at better terms than the best offer presented ("Subsequent Financing
Matching Right"). If Masanek desires to execute his Subsequent Financing
Matching Right, he shall do so by delivering written notice of exercise to
TechAlt at any time prior to expiration of the Notice Period. In the event of
Masanek's exercise of the Subsequent Financing Matching Right, TechAlt shall
take any and all reasonable steps to enter into the financing obtained by
Masanek.
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ARTICLE XX
ESCROW AGREEMENT
20.1 Contemporaneously with the execution of this Agreement and the Related
Agreements, the Parties shall execute the Escrow Agreement, a copy of which is
attached hereto as EXHIBIT 20.1, which provides that this Agreement, the Related
Agreements and the Agreed Order (see EXHIBIT 6.1) shall be deposited into escrow
and subject to the terms of the Escrow Agreement.
ARTICLE XXI
MISCELLANEOUS
21.1 Waiver. The failure of any party to exercise any right or remedy given such
party under this Agreement and/or the Related Agreements or otherwise available
to such person or party, no failure of any party to insist upon strict
compliance by any other party with its obligations hereunder, and no custom or
practice of the parties in variance with the terms hereof, shall constitute a
waiver of any party's right to demand exact compliance with the terms hereof,
unless such waiver is set forth in writing and executed by such party.
21.2 Successors and Assigns. The terms of this Agreement and Related Agreements
shall be binding upon and inure to the benefit of the respective spouses, heirs,
estates, affiliates, successors, assigns, and representatives of the parties.
21.3 Entire Agreement; Amendments. This Agreement (together with all documents,
exhibits, and instruments being entered into concurrently herewith, including
without limitation, the Related Agreements), contains the entire agreement and
understanding among the parties hereto relating to the subject matter hereof,
and supercedes all prior or previous written and oral negotiations, commitments,
and writings with respect to the subject matter hereof. This Agreement may be
amended only by written instrument signed by each and every party hereto.
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21.4 Validity;Severability. In the event any provision or any portion of any
provision of this Agreement and/or Related Agreements is held invalid or
unenforceable as applied to any facts or circumstances, the remaining provisions
and portions of this Agreement and/or Related Agreements, and the same provision
as applied to any other facts or circumstances shall not be affected or impaired
thereby, and shall remain valid and enforceable.
21.5 Applicable Law. This Agreement shall be governed and construed in
accordance with the internal laws and judicial decisions in the State of
Illinois.
21.6 Jurisdiction; Exclusive Jurisdiction. All parties agree that the Circuit
Court of Xxxx County in Chicago, Illinois and/or the Northern District Court of
Illinois shall be the venue and exclusive proper forum in which to adjudicate
any and all controversies arising directly or indirectly in connection with this
Agreement and/or Related Agreements, and the parties further agree that in the
event of any litigation arising out of or in connection with this Agreement
and/or the Related Agreements, they will not contest or challenge the
jurisdiction of either court; provided, however, any injunction obtained by the
parties pursuant to a breach of this Agreement and/or the Related Agreements may
be enforced in any court in the United States, without regard to choice of law
principles.
21.7 Integration of Related Agreements. All the terms and conditions of the
Related Agreements are hereby incorporated and made a part of this Agreement. In
the event of any conflict of any term or provision of this Agreement and the
Related Agreements, the terms and provisions of this Agreement shall control.
21.8 Counterparts/Facsimiles. This Agreement may be executed in counterparts.
For purposes of negotiating and finalizing this Agreement, any documents
transmitted by facsimile shall be treated in all manner and respect as an
original document. Faxed signatures shall be treated the same as original
signature pages.
- 27 -
21.9 Capacity. Each party hereto expressly acknowledges, represents, and
warrants that he, she or it has voluntarily executed this Agreement. Each person
signing this Agreement further represents and warrants that he, she or it has or
possesses the full right, power, authority and capacity to execute this
Agreement on behalf of his or her respective party and to bind said party to
this Agreement, that this Agreement does not conflict with any material
agreements of such party, and that this Agreement is enforceable against such
party in accordance with its terms.
21.10 Further Assurances/Cooperation. Each of the parties agrees that at any
time after the execution of this Agreement, he, she or it will take such actions
and execute and deliver such documents and instruments as any other party may
reasonably require to confirm or give effect to the provisions and terms of this
Agreement and the Related Agreements.
21.11 Full Knowledge, Consent and Voluntary Signing. The parties hereto
acknowledge that each has been given a reasonable time in which to consider this
Agreement, and that each has read this Agreement and fully understands its
meaning and intent, and that each understands its legal consequences, and each
agrees to all of the terms of this Agreement and is voluntarily signing this
Agreement.
21.12 Attorneys' Fees. The non-prevailing party in any action arising out of or
relating to this Agreement and/or the Related Agreements agrees to pay all
reasonable attorneys' fees, costs, and expenses that may be incurred by the
prevailing party in enforcing the terms of this Agreement and/or the Related
Agreements together with attorneys' fees and costs reasonably incurred in the
collection of any judgments arising out of or relating to this Agreement and/or
Related Agreements.
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21.13 Notice. Any notice, consent, waiver, or other communication that is
required or permitted hereunder shall be sufficient if it is in writing, signed
by or on behalf of the party giving such notice, consent, waiver, or other
communication, and delivered personally, by mail or by Federal Express or
similar overnight courier, postage prepaid, facsimile, and if by mail, certified
or registered, to the addresses set forth below, or to such other addressee or
address as shall be set forth in a notice given in the same manner:
If to: SERVICES BY DESIGNWISE, LTD.
Attn: Xxxx Xxxxxxx
0000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
With a copy to: Xxxxxxxx, Xxxxxx & Associates, Ltd.
Attn: Xx. Xxxxxxx X. Xxxxxx
000X Xxxxx Xxxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
If to: Xxxx Xxxxxxx
0000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
With a copy to: Xxxxxxxx, Xxxxxx & Associates, Ltd.
Attn: Xx. Xxxxxxx X. Xxxxxx
000X Xxxxx Xxxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
Fax: (000)-000-0000
If to: TECHALT, INC.
Attn: Xxxxx X. Xxxxxxx
0000 X. Xxxxxxxxx Xxx., Xxxxx X
Xxxxxxxxx Xxxxxxx, XX 00000
Fax: (000) 000-0000
With a copy to: The Xxxx Law Group, PLLC
Attn: Xxxxx Xxxx
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Fax: (000) 000-0000
- 29 -
If to: Xxxxx X. Xxxxxxx
0000 X. Xxxxxxxxx Xxx., Xxxxx X
Xxxxxxxxx Xxxxxxx, XX 00000
Fax: (000) 000-0000
With a copy to: Xxxxxxx Xxxxx Xxxxxxxxx, Esq.
000 Xxxxx Xxxxx
Xxxx Xxxxxx, XX 00000
Fax: (000) 000-0000
If to: Technology Alternatives, Inc.
0000 X. Xxxxxxxxx Xxx., Xxxxx X
Xxxxxxxxx Xxxxxxx, XX 00000
Fax: (000) 000-0000
With a copy to: Xxxxx Xxxxxxx, Esq.
Xxxxx X. Xxxxxxx and Associates
000 Xxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
21.14 Notice shall be deemed given upon delivery if delivered personally, on the
next day if delivered by an overnight carrier, or three (3) days after the date
of postmark if deposited in the U.S. Mail for delivery by certified or
registered mail, return receipt requested, postage prepaid, addressed, or upon
transmission if it has been given by facsimile between 9:00 a.m. and 5:00 p.m.
central time, Monday through Friday.
21.15 Dismissal of Litigation. Within seven (7) days following the Closing, the
parties shall take all necessary action to ensure the entry of a court order
dismissing the Litigation with prejudice and without attorneys' fees or costs to
any party except to the extent provided in this Agreement.
21.16 Assignment of Rights. No Party may assign any of its rights under this
Agreement without the prior consent of the other Parties, which shall not be
unreasonably withheld. Subject to the preceding sentence, this Agreement shall
apply to, be binding in all respects upon, and inure to the benefit of the
successors and permitted assigns of the Parties. Nothing expressed or referred
to in this Agreement shall be construed to give any person other than the
Parties to this Agreement any legal or equitable right, remedy, or claim under
or with respect to this Agreement or any provision of this Agreement. This
Agreement and all of its provisions and conditions are for the sole and
exclusive benefit of the Parties to this Agreement and their successors and
assigns.
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21.17 Further Assurances and Execution of Additional Agreements. From time to
time following the consummation of this Agreement, the Parties shall execute and
deliver, or cause to be executed and delivered, to the other such additional
instruments and agreements as such party may reasonably request or as may be
otherwise necessary or desirable to carry out the purposes of this Agreement and
the Related Agreements.
21.18 Governance. Upon Closing, this Agreement and the Related Agreements shall
govern all relationships, duties and obligations among the parties hereto with
respect to the Litigation and the settlement contemplated by this Agreement and
the Related Agreements and any additional or conflicting terms and conditions
contained in any document other than this Agreement, the Related Agreements, or
other agreements contemplated by this Agreement and/or the Related Agreements
are of no force and effect.
SIGNATURE PAGE FOLLOWS
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TECHALT, INC. SERVICES BY DESIGNWISE, LTD.
By: ______________________ By: _________________________
Its: _____________________ Its: _________________________
TECHNOLOGY ALTERNATIVES, INC.
By: _________________________
Its: _________________________
------------------------- -----------------------
Xxxxx X. Xxxxxxx, individually Xxxx Xxxxxxx, individually
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