FORTE AGREEMENT
FORTE
AGREEMENT
THIS
AGREEMENT (this “Agreement”)
is
made and entered into as of the 19th day of January, 2007, between TRIBEWORKS,
INC., a Delaware corporation, (the “Company”)
and
FORTE FINANCE LIMITED (“Forte”).
INTRODUCTORY
PROVISIONS
A. Company,
BLive Networks Inc. (“BLive”),
Petroleum Corporation of Canada Limited (“Petroleum
Corp.”),
Forte
and certain other parties have executed that certain Asset and Stock Purchase
Agreement, a copy of which is attached hereto as Exhibit
A,
dated
as of January 19, 2007, (the “Purchase
Agreement”);
B. Pursuant
to the Purchase Agreement, the Company is to provide Forte with one hundred
fifty thousand (150,000) shares (“PP
Shares”)
of its
common stock as an M&A advisory fee;
C. The
PP
Shares shall be held in escrow by an escrow agent to be mutually agree upon
by
the parties (the “Escrow
Agent”)
to
satisfy certain potential indemnifiable claims as provided in Section 6.1
(subject to the limitations in Section 5 of this Agreement) of the Purchase
Agreement; and
D. All
capitalized terms used herein but not defined shall have the particular meanings
ascribed thereto in the Purchase Agreement.
AGREEMENT
NOW,
THEREFORE, for and in consideration of the promises and mutual covenants
contained in the Purchase Agreement and contained herein, the parties hereto
agree as follows:
1. Accredited
Investors.
Forte
represents and warrants that
Forte
and the person signing on its behalf represent and warrant that either (i)
all
owners of equity interests in Forte meet the following qualifications:
(a)
have
a
personal net worth or joint net worth with his spouse in excess of $1,000,000,
or (b) have individual income (not joint income with his spouse) in excess
of
$200,000 in each of the two most recent years or joint income with his spouse
in
excess of $300,000 in each of those years and (in either case) has a reasonable
expectation of reaching the same income level in the current year, and he has
no
reason to anticipate any change in personal circumstances, financial or
otherwise, that may cause or require any resale of their respective PP Shares
or
the shares or warrants issued in connection with the Purchase Agreement or
(ii)
Forte otherwise qualifies as an “accredited investor” as that term is defined in
Rule 501(a) of Regulation D promulgated under the Securities Act of 1933, as
amended (the “Securities
Act”).
Purchasers may rely on the foregoing statement to the extent necessary and
may
show this Purchase Agreement to other parties to the extent
necessary.
2. Conflict
of Interest.
Forte
has informed and notified all entities they are affiliated with of commissions
to be received and of possible conflicts of interest that may result from the
transactions contemplated by the Purchase Agreement or this
Agreement.
3. Registered
Broker.
Forte represents and warrants that Forte is receiving 150,000 shares of Common
Stock of the Company as an M&A advisory fee and confirms that it is not a
registered broker as that term is defined in the Securities Exchange Act of
1934.
4. Establishment
of Escrow Shares.
One
hundred fifty thousand (150,000) shares of Common Stock shall be held in escrow
by Xxxxxx and Xxxx, LLP or another independent escrow agent (the “Escrow
Agent”)
to
satisfy certain potential indemnifiable claims as provided in Section 6.1 of
the
Purchase Agreement (subject to the limitations in Section
5
below)
and will be released as set forth below, pursuant to an “Escrow Agreement”, in
substantially the same form attached as Exhibit
B.
5. Indemnity
by Forte.
Forte
agrees to indemnify and hold harmless the Company from and against any and
all
damages, losses, claims, liabilities, assessments, judgments, taxes, demands,
charges, suits, penalties, costs and expenses (including court costs and
reasonable attorneys’ fees and expenses incurred in investigating, preparing for
and participating in any litigation, action or proceeding, including any
litigation, action or proceeding brought to enforce the terms and provisions
of
Section 6.1 of the Purchase Agreement) that arise out of any failure of any
of
the representations or warranties made by Forte or BLive under Section 4.5,
Section 4.6, Section 4.7, or Section 4.8 of the Purchase Agreement to be true
and accurate at the time as of which they are made and until one year from
the
date of this Agreement. Forte’s
liability under this Section
5
shall be
limited to losses resulting from third party claims against Tribeworks and
the
maximum of Forte’s liability under this Section
5
and
under the “Escrow
Agreement”,
in
substantially the same form attached as Exhibit
B
in
aggregate shall not exceed the value of the PP Shares held in
escrow.
6. Multiple
Counterparts; Facsimile Signature.
To
facilitate execution, this Agreement may be executed in as many counterparts
as
may be convenient or required or may be executed by facsimile copy. It shall
not
be necessary that the signature of, or on behalf of, each party, or that the
signature of all persons required to bind any party, appear on each counterpart
or facsimile. All counterparts shall collectively constitute a single
instrument. It shall not be necessary in making proof of this instrument to
produce or account for more than a single counterpart containing the respective
signatures of, or on behalf of, each of the parties hereto. Any signature page
to any counterpart may be detached from such counterpart without impairing
the
legal effect of the signatures thereon and thereafter attached to another
counterpart identical thereto except having attached to another counterpart
identical thereto except having attached to it additional signature pages.
This
Agreement may be executed by facsimile copy and any such facsimile copy bearing
the facsimile signature of any party hereto shall have full legal force and
effect and shall be binding against the party having executed this Agreement
by
facsimile.
7. Notices.
All
notices, demands, requests and other communications required or permitted
hereunder shall be in writing, and delivered to the person to whom the notice
is
directed, either in person (e.g. hand delivery by courier or overnight
delivery), by facsimile transmittal (“fax”)
or by
United States mail, registered or certified, postage fully prepaid, return
receipt requested. Notices delivered in person or by fax shall be effective
upon
receipt thereof. Any notice given by fax will be effective only in the event
the
same notice is also given in any other manner permitted by this Section
12;
but if
any notice given by fax is effective, it will be effective on the date the
fax
is sent. Notices delivered by mail shall be effective (except where receipt
is
specified in this Agreement) upon deposit in a regularly maintained receptacle
for the United States mail, registered or certified, postage fully prepaid,
addressed to the addressee at its address set forth below or at such other
address as such party may have specified theretofore by notice delivered in
accordance with this Section and actually received by the
addressee:
If
to
Indemnitor: Forte
Finance Limited
000
Xxx
Xxxxxx Xxxx
Xxxxxxx,
Xxxxx VLT 08
Attn:
Xxxxxxx Xxxxxx
Facsimile:
(000) 000-0000
2
If
to the
Company: Tribeworks,
Inc.
0000
000xx
Xxxxxx
XX
Xxxxxxx,
Xxxxxxxxxx 00000
Attn:
Xxxxx X. Xxxxxxxx, CEO
Facsimile:
(000) 000-0000
With
a
copy (which shall
not
I.
Xxxxx
Xxxxxxxx, Esq.
constitute
notice)
to:
Xxxxxx
& Xxxx, LLP
0000
Xxxx
Xxxxxx
Xxxxx
0000
Xxxxxx,
Xxxxx 00000
Telephone:
000-000-0000
Telecopier:
000-000-0000
8. Delivery
of Shares. Following the release from escrow of the PP Shares they shall be
sent
to:
Bank
Xxx
Xxxxxxxxx in favor of Forte Finance Limited.
Xxxxxxxxxxxxx
00
XX-0000
Xxxxxx
Xxxxxxxxxxx
9. Applicable
Laws.
This
Agreement and the transactions contemplated hereunder shall be governed under
the laws of the State of Delaware.
[THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
3
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day and
date
first written above.
|
TRIBEWORKS,
INC.
|
||
| |
|
|
| By: | ||
|
Xxxxx X. Xxxxxxxx |
||
|
Chief
Executive Officer
|
||
|
FORTE
FINANCE LIMITED
|
|||
|
|
|||
| By: | |||
|
|
|||
| Name: | |||
|
|
|||
| Title: | |||
|
|
|||
[Signature
Page to Agreement with Forte Finance Limited]
EXHIBIT
A
PURCHASE
AGREEMENT
EXHIBIT
B
INDEMNIFICATION
ESCROW AGREEMENT
