Exhibit 10.2
AGREEMENT
THIS AGREEMENT (this "Agreement") is dated as of December 4, 2002, by
and among Xx. Xxxxxx Xxxxxxxxx ("Xxxxxxxxx"), TW Cable, LLC ("TW"), Xx. Xxxxxx
XxXxxx ("McPhee") and DataWorld Solutions, Inc.(the "Company").
WITNESSETH:
WHEREAS, Xxxxxxxxx, XX and XxXxxx each has various rights, obligations,
liabilities and securities pertaining to the Company; and
WHERAS, the parties wish to restructure such rights, obligations,
liabilities and securities; and
WEREAS, Xxxxxxxxx and TW recognize that McPhee's efforts as chief
executive of the Company to (a) reduce debts of the Company, especially those as
to which Xxxxxxxxx and/or McPhee are personally liable, (b) enhance the value of
the Company and (c) increase the stock price to reduce Xxxxxxxxx'x personal
liabilities will benefit them; and
NOW, THEREFORE, in consideration of the mutual covenants and
obligations set forth below, the parties hereto hereby agree as follows:
1. OBLIGATION. Xxxxxxxxx and TW hereby agree to settle any and all debts,
interest and obligations owed to either of them by the Company, for an
amount equal to $252,00 to TW and $168,000 to Xxxxxxxxx plus interest
at 5% per annum. The aggregate of such amounts is hereby referred to
as the "Settlement Amount". The Company expressly acknowledges its
indebtedness to Xxxxxxxxx and TW of the Settlement Amount without
defense and agrees to make payments from time to time as set forth on
the attached Schedule beginning December 1, 2002, which includes
interest at 5%. Each payment shall be apportioned 60% to TW and 40% to
Xxxxxxxxx and will reflect the interest relating to such payment.
2. PERSONAL GUARANTEE OF MCPHEE. McPhee is obligated to Xxxxxxxxx under a
personal guarantee (currently equal to approximately $133,000).
Payments of the Settlement Amount by the Company to Xxxxxxxxx shall
reduce McPhee's personal guarantee on a dollar-for-dollar basis.
McPhee agrees that he will not transfer his assets to nay other person
or entity if after such transfer, his net worth decreases to less than
the then current amount of his personal guarantee referenced above.
For example, if the personal guarantee amount is $100,000,and McPhee's
net worth is $120,000, he may transfer up to not more than $20,000 to
another person or entity.
3. SALES OF COMPANY STOCK BY XXXXXXXXX. Sales of the Company stock by
Xxxxxxxxx reduce McPhee's personal guarantee, as well as the Company's
Settlement Amount to TW and Xxxxxxxxx. For every $1.00 of sale
proceeds, both McPhee's personal liability and the Settlement Amount
shall be reduced by $0.67.
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If such sale proceeds equal $200,000 or more, McPhee's personal
obligation to Xxxxxxxxx shall be considered paid in full and McPhee
shall be released from his personal guarantee. All reductions of the
Settlement Amount as a result of sales of stock by Xxxxxxxxx shall be
first applied to the payment which is scheduled to be made last. For
example, the lat payment on the attached Schedule provides for a
$6,000 payment to be made by November 2017. If there is $8,955 in
stock sales, the Settlement Amount is decreased by 67 % of such sale
proceeds, or $6,000. The payment for November 2017 would be deemed
paid by such stock sales. The next payment eligible for reduction of
the Settlement Amount as a result of stock sales would be October 2017
and so forth.
4. NEW STOCK. The Company agrees to issue 500,00 shares of its common
stock in exchange for all of the Company's preferred stock owned by
Xxxxxxxxx. Such common stock will have a restrictive legend and be
delivered promptly to Xxxxxxxxx upon receipt by the Company of all of
the preferred stock referenced above. The legend shall read as
follows: "The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and may not
be sold or transferred without registration under said Act or an
exemption therefrom."
5. LIMITATION ON STOCK SALES. As of the date hereof and including the
500,000 shares referenced in Section 4 above, TW and Xxxxxxxxx will
beneficially own 2,563,949 shares of the Company's common stock.
Xxxxxxxxx agrees to limit his sales of Company stock in any one day to
no more than 10% of the greater of the (a) current or (b) previous
day's total trading volume in the Company's stock, provided that
regardless of the daily volume limitation, he may sell a minimum of
25,000 shares per calendar month. If he sells less than 25,000 shares
in any month, such shortfall shall not be carried over to the next
month. Xxxxxxxxx further agrees to provide to the Company all
appropriate brokerage documentation to confirm his compliance with
such limitation. McPhee agrees to limit his sales of Company stock
during the term of this Agreement in the same manner as Xxxxxxxxx as
set forth in this Section.
6. RULE 144 COMPLIANCE. The Company agrees to (a) cooperate in all
respects with sales of stock by Xxxxxxxxx and TW under Rule 144 of the
Securities Act of 1933; (b) use its best efforts to timely file all
necessary reports required under the Securities Exchange Act of 1934,
and (c) pay the transfer agent costs as well as the Company's legal
fees incurred in issuing the standard Rule 144 opinion for sales of
the Company stock by Xxxxxxxxx or TW.
7. OTHER RIGHTS. Xxxxxxxxx agrees to waive his right to representation on
the Board of Directors of the Company.
8. ESCROW. Upon execution of this Agreement, and a letter of direction
from Xxxxxxxxxxx Xxxxxxx with respect to his shares, Xxxxxxxxx and TW
agree to release from escrow, including those shares held for the
benefit of prior creditors of the Company, 2 million shares of the
Company's stock owned by McPhee and 4,250,00 shares of the Company's
stock owned by Xxxxxxxxxxx Xxxxxxx, with Xxxxxxx'x shares to be
surrendered to the Company to become "treasury shares" held by the
Company. The remaining shares held in escrow will be released upon
full and final payment of the Settlement Amount. Xxxxxxxxx and TW
shall have the right to appoint a new escrow agent, the reasonable
cost of which shall be borne equally between TW and the Company,
provided the terms of the new escrow agreement are consistent with the
terms of this Agreement.
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9. JUDGMENTS. For so long as the Company materially complies with this
Agreement, Xxxxxxxxx and TW agree not to file any actions, suits,
arbitrations, or the like against the Company. For so long as
Xxxxxxxxx and TW materially comply with this Agreement, the Company
agrees not to file any actions, suits, arbitrations or the like
against either Xxxxxxxxx or TW. Xxxxxxxxx and TW agree to suspend all
enforcement or collection on their judgment against McPhee provided
that Xxxxxxxxx and TW may enforce or collect all of their Judgments in
the event the Company breaches a material term of this Agreement and
such material breach is not cured within 14 days after Xxxxxxxxx'x
notice of such breach is received by the Company. Any waiver in the
discretion of Xxxxxxxxx of a breach by the Company must be in writing
and shall not constitute a waiver of any other breaches, whether
occurring before or after any breach that is waived by Xxxxxxxxx.
10. TERMINATION. This Agreement shall terminate on the earlier of (a) the
date on which all of the material terms of this Agreement have been
complied with or otherwise performed, (b) any other date agreed to by
all of the parties, or (c) the date on which the Company, after notice
as set forth in Section 11.2, fails to cure a breach of a material
term of this Agreement, which breach is not waived in writing by
Xxxxxxxxx. In the event this Agreement is terminated under Section (c)
above, Xxxxxxxxx and TW shall have the rights to pursue all of their
rights under all of their Judgments. Notwithstanding termination, the
Company's obligations to TW and Xxxxxxxxx and XxXxxx'x personal
guarantee to Xxxxxxxxx shall be reduced in accordance with Section 1
and 2 hereof with respect to actual payments by the Company to TW and
Xxxxxxxxx and sales of stock of the Company by Xxxxxxxxx.
00. MISCELLANEOUS.
11.1 Amendments. This Agreement may be modified or amended only by a
written instrument executed by each of the parties hereto.
11.2 Represenation. Each party represents that it has retained legal and
other counsel of its choosing with respect to the transactions
contemplated herein, and is satisfied in his sole discretion with the
form and content of the documentation.
11.3 Notices. All communications required or permitted to be given under
this Agreement to any party hereto shall be sent by certified mail,
return receipt requested to such party at the address set forth below.
If a party gives notice to such address, it shall constitute good and
sufficient notice unless the party to whom notice is being given has
previously notified the other parties of a change of address by
certified mail, return receipt requested.
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TW Cable, LLC: 00 Xxxxxxxxx Xxxxxxxxx, XX Xxx 0000 Xxxxxxxxxxx, XX
00000
Xxxxxx Xxxxxxxxx: 00 Xxxxxxxxx Xxxxxxxxx, XX Xxx 0000 Xxxxxxxxxxx, XX
00000
DataWorld Solutions, Inc.: XX Xxx 00000 Xxxxxxxxx, XX 00000
Xxxxxx XxXxxx: XX Xxx 00000 Xxxxxxxxx, XX 00000
11.4 Successors and Assigns. This Agreement shall bind and inure to the
benefit of the parties hereto and their respective successors and
assigns; provided, however, that none of the obligations or duties
under this Agreement may be assigned without written consent of the
non-assigning parties.
11.5 Governing Law. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of New York.
11.6 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be an original, and all of which
together shall constitute one and the same agreement.
11.7 Facsimile. This Agreement may be accepted via facsimile, and a
facsimile transmission of the executed signature page hereof shall
make this Agreement legally binding upon the party so executing and
faxing such signature page. IN WITNESS WHEREOF, the parties hereto
have executed this Agreement as of the day and year first above
written.
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Xx. Xxxxxx Xxxxxxxxx DataWorld
Solutions, Inc. By: Xxxxxx
XxXxxx, President
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TW Cable, LLC ---------------------------
By:
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Xx. Xxxxxx XxXxxx
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