Exhibit 10.8
AGREEMENT
THIS AGREEMENT is made as of May 1, 2001 among GIZA REAL ESTATE
LTD., GIZA CAPITAL MARKETS LTD. And GIZA ADVISORY AND CONSULTING MANAGEMENT
SERVICES (1988) LTD. ("Giza 88"), each, a company organized under the laws of
the State of Israel (collectively, the "Giza Group"); XXXX XXXXXXXX,
("Xxxxxxxx"); ZNOOK LTD. ("Znook"), and GIZA FINANCIAL ADVISORY LTD., each, a
company organized under the laws of the State of Israel (the "Purchasers") and
THCG, INC., a Delaware corporation ("THCG", and together with Znook and GIZA
FINANCIAL ADVISORY LTD., the "THCG Group").
WHEREAS, the parties to this Agreement have entered into the Asset
Purchase Agreement and the Amendment to Asset Purchase Agreement (collectively,
the "APA"), both dated as of April 2000, and other documents collateral thereto
including, but not limited to, an agreement for services by and between Znook
and Xxxxxxxx (guaranteed by THCG) (referred to herein as the "Employment
Agreement"); and
WHEREAS, the parties wish to mutually release each other from all
claims of any nature or kind including any and all claims or demands arising out
of the APA and other documents collateral thereto.
NOW, THEREFORE, the parties, intending to be legally bound, agree as follows:
1. Transfer of Certain Assets to Giza 88. The THCG Group, and each
and every company of the THCG Group or under the direct or indirect control of
THCG (the "THCG Companies"), to the extent applicable, hereby transfer and
assign to Giza 88 the following assets, for a total consideration of $1.00 (one)
US Dollar:
(a) Any and all title, interest and rights in and to the
name "Giza" which had been purchased by any member of the THCG Group pursuant to
the APA.
(b) Any and all title, interest and rights in and to the
database known by the name IVC-ONLINE, including all rights in the website
xxx.xxx-xxxxxx.xxx which had been purchased by any member of the THCG Group
pursuant to the APA.
2. Certain Implications of the Transfer of the Rights in the Name
"Giza". As a result of the transfer of all rights in and to the name Giza, as
set forth in section 1(a), each member of the THCG Group hereby represents and
undertakes, jointly and severally, as follows:
(a) Within 60 days from the date hereof, THCG shall have
initiated the process to change the name of any entity within the THCG Group and
any other entity under the direct or indirect control of THCG, which bears or
includes the name "Giza", including, specifically, GIZA FINANCIAL ADVISORY LTD.
And THCG GIZA (Israel) Ltd., to names that do not include the name "Giza". It is
understood by all parties that such name changes may involve regulatory
approvals which are not under THCG's control. Attached hereto as Exibit A are
resolutions signed by all the shareholders of GIZA FINANCIAL ADVISORY LTD. And
THCG Giza (Israel0 Ltd. Approving the
name changes. THCG shall change the name of any entity within the THCG Group and
any other entity under the direct or indirect control of THCG, which bears or
includes the name "Giza", including, specifically, GIZA FINANCIAL ADVISORY LTD.
and THCG Giza (Israel) Ltd., to names which do not include the name "Giza".
(b) Znook hereby assigns all its rights, privileges and
obligations under the Agreement dated as of September 1, 2000 between Znook and
Giza Advisory and Financial Consulting (1990) Ltd., regarding the Licensing of
the name "Giza", to Giza 88.
3. Employment Agreement of Xxxxxxxx in Znook.
(a) The Employment Agreement shall be cancelled as of
May 1, 2001. As of such date all obligations of the THCG Group shall be
terminated including all obligations to pay compensation to Xxxxxxxx. Xxxxxxxx
will, however continue to have the following responsibilities:
x. Xxxxxxxx will continue to consult with the THCG Group
regarding the operations of companies in which it has invested in Israel,
including winding-up and liquidating activities;
ii. Financial matters pertaining to THCG's investment in
AppSwing Ltd. and Xtend Networks Ltd.; and
iii. Xxxxxxxx will continue to represent the THCG Group
on the board of companies on which he is currently serving as a board member.
(b) As consideration for Xxxxxxxx agreeing to relinquish
his Employment Agreement and such other rights that he may have, the THCG Group
of companies agrees to assign to an entity (the "Entity") wholly owned by Xxxxxx
X. Xxxx and Xxx Xxxxx (the "Principals"), warrants (the "Warants")(currently
held by the THCG Group constituting 2/3 (66.6%) of the THCG Group's position in
AppSwing Ltd. and Xtend Networks Ltd.). The THCG Group's warrant position in
AppSwing and Xtend Networks consists of 550 Warrants and 300,000 Warrants (post
split 1:10) (as adjusted for stock splits and alike) respectively. The Entity
shall issue a demand promissory note to Xxxxxxxx in the amount of $424,750 (US
Dollars) bearing no interest and recourse only to the Warrants or any proceeds
of the Warrants. The Entity shall not assign or otherwise transfer the Warrants
without the prior written approval of Xxxxxxxx. If the structure is not tax
efficient, then Xxxxxxxx will propose an alternate structure, subject to THCG's
approval which will not be unreasonably withheld.
(c) In the event that the Entity shall not be
incorporated or shall cease to exist, THCG or any other entity which shall hold
the Warrants shall issue the demand promissory note to Xxxxxxxx in the same
terms that are set forth in section 3(b).
(d) Following Znook's payment and/or discharge of all
its debts and obligations, Xxxxxxxx shall be entitled to receive from Znook all
cash amounts in excess of $50,000 then held by Znook. Any amount payable to
Xxxxxxxx pursuant to this section
3(d) shall reduce the principal amount of the promissory note issued to Xxxxxxxx
by the Entity.
4. Certain indemnification and commitments of THCG.
(a) THCG hereby undertakes to indemnify Xxxxxxxx and/or
any Company of the Giza Group and hold them harmless from, and to reimburse
Xxxxxxxx and/or any Company of the Giza Group for, any and all claims of the
Israeli Tax Authorities with respect to the operation of the businesses and
activities of the THCG Group in Israel by the Giza Group, in the Pre Closing
Period (as such term is defined in the APA) as set forth in Section 11.2A of the
APA as though Xxxxxxxx were still employed by Znook as Chairman and CEO;
provided that such liabilities did not stem from Xxxxxxxx'x gross negligence or
willful misconduct.
(b) THCG hereby undertakes to indemnify Xxxxxxxx and Xx.
Xxx Xxxxxxx ("Xxxxxxx") and hold them harmless from, and to reimburse Xxxxxxxx
and Mizrahi for, any claim arising out of Xxxxxxxx'x or Xxxxxxx'x activities as
directors in the THCG Companies as though Xxxxxxxx and Mizrahi were still
employed by Znook; provided that such liabilities did not stem from Xxxxxxxx'x
xxxxx negligence or willful misconduct.
(c) On May 1, 2001,` Mizrahi shall be released from all
his duties as director in the THCG Companies, and shall be replaced by Xxx
Xxxxx or such other person at the discretion of THCG.
5. Mutual Release. Subject to the fulfillment of the parties'
obligations as set forth herein, all parties to this Agreement hereby agree to
mutually release and forever discharge each other from any and all claims
arising out of or related to the APA, Employment Agreement or such other
agreements, written or oral, entered into by and between Xxxxxxxx and the THCG
Group. This section specifically supercedes section 10 to the APA (under the
heading, "Indemnification").
6. Miscellaneous.
(a) Entire Agreement; Amendments and Waivers. This
Agreement represents the entire understanding and agreement between the parties
hereto with respect to the subject matter hereof and supercedes and any all
previous agreements and understandings between the parties hereto with respect
to such subject matter. This Agreement can be amended, supplemented or changed,
and any provision hereof can be waived, only by written instrument making
specific reference to this Agreement signed by the party against whom
enforcement of any such amendment, supplement, modification or waiver is sought.
No action taken pursuant to this Agreement, including without limitation, any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any representation,
warranty, covenant or agreement contained herein. The waiver by any party hereto
of a breach of any provision of this Agreement shall not operate or be construed
as a further or continuing waiver of such breach or as a waiver of any other or
subsequent breach. No failure on the part of any party to exercise, and no delay
in exercising, any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial
exercise of such right, power, or remedy by such party preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.
(b) Governing Laws; Jurisdiction. This Agreement shall
be exclusively governed by and construed according to the laws of the State of
Israel without regard to the provisions regarding conflicts of law. Any dispute
arising under or in relation to this Agreement shall be resolved exclusively
through arbitration in Tel Aviv/Jaffa, Israel, and the parties hereto
irrevocably submit to the jurisdiction of arbitration in Israel for such
purposes.
(c) Notices. All notices and other communications under
this Agreement shall be in writing and shall be deemed given (a) when delivered
personally, (b) on the third Business Day after being mailed by certified mail,
return receipt requested, (c) on the next Business Day after delivery to a
recognized overnight courier, or (d) upon transmission and confirmation of
receipt by a facsimile operator if sent by facsimile (and shall also be
transmitted by facsimile to the Persons receiving copies thereof).
(d) Severability. If any provision of this Agreement is
invalid or unenforceable, the balance of this Agreement shall remain in effect.
(e) Binding Effect. This Agreement shall be binding upon
and inure to the benefit of the parties and their respective successors and
permitted assigns. Nothing in this Agreement shall create or be deemed to create
any third party beneficiary rights in any person or entity not a party to this
Agreement except as provided below.
(f) Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts together constitute
one and the same instruments.
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IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement as of the date and year first written above.
GIZA REAL ESTATE LTD. GIZA CAPITAL MARKETS LTD.
By: /s/ XXXX XXXXXXXX /s/ XXXX XXXXXXXX
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Name: XXXX XXXXXXXX XXXX XXXXXXXX
Title:
GIZA ADVISORY AND CONSULTING
MANAGEMENT SERVICES (1988) LTD.
By: /s/ XXXX XXXXXXXX /s/ XXXX XXXXXXXX
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Name: XXXX XXXXXXXX XXXX XXXXXXXX
Title:
ZNOOK LTD. THCG GIZA FINANCIAL
ADVISORY LTD.
By: /s/ XXXX XXXXXXXX /s/ Xxx Xxxxx
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Name: XXXX XXXXXXXX XXX XXXXX
Title:
THCG, INC.
By: /s/ XXXXXX XXXX
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Name: XXXXXX XXXX
Title: Chief Executive Officer
I hereby agree to the terms set forth in sections 4 (b) and 4 (c) to this
Agreement:
/s/ XXX XXXXXXX
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XXX XXXXXXX
