THIS CLOSING AGREEMENT AND RELEASE ("Closing Agreement") is made
and entered into as of February 26, 2002, by and between GPN Networks, Inc.,
Terra Industries, Inc. and Xxxxxxx X. Xxxx.
SECTION 1. DEFINITIONS
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SECTION 1.1."GPN" shall mean: GPN Networks, Inc., and its
subsidiaries, affiliates, officers, owners, directors, agents, heirs,
assigns, representatives, employees, trustees, insurers, and servants.
SECTION 1.2."GoNow" shall mean GoNow Securities, Inc.
SECTION 1.3."Terra" shall mean Terra Industries, Inc. and its
subsidiaries, affiliates, officers, owners, directors, agents, heirs, assigns,
representatives, employees, trustees, insurers, and servants.
SECTION 1.4."Purchase Agreement" shall mean the Stock Purchase
Agreement executed by and between GPN and Terra on September 7, 2001 and any
subsequent amendments, modifications and alterations thereof (and including any
prior or subsequent agreements between the parties whether oral or written).
SECTION 1.5."Husa Agreement" shall mean the Employment Agreement
between GoNow Securities and Husa that was also signed by GPN on or about March
1, 2001.
SECTION 1.6."Closing Funds" shall mean the $37,000.00 currently held
in Xxxxxxxxxxx & Xxxxxxxx, LLP's client trust account that was tendered to GPN
by Terra on or about November 28, 2001.
SECTION 1.7. "Employment Dispute" shall mean the dispute between GoNow, GPN and
Husa regarding whether and to what extent Husa is owed compensation by GoNow
and/or GPN.
NOW, THEREFORE, in consideration of these premises and the terms and
conditions contained herein, and for other good and valuable consideration,
receipt of which is hereby acknowledged, the parties hereto agree as follows:
SECTION 2. REFUND OF CONSIDERATION
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SECTION 2.1. Upon execution of this Agreement by all parties, Xxxxxxxxxxx &
Xxxxxxxx, LLP is directed to release SIXTEEN THOUSAND AND 00/100 DOLLARS
($16,000.00) of the Closing Funds to Husa; SIXTEEN THOUSAND AND 00/100 DOLLARS
($16,000.00) to Terra; and FIVE THOUSAND AND 00/100 DOLLARS ($5,000.00) to GPN.
SECTION 2.2. Within one (1) business day after execution of this Agreement,
Xxxxxxxxxxx & Xxxxxxxx, LLP shall make the distributions set forth above via
overnight delivery. The parties acknowledge, however, that Xxxxxxxxxxx &
Xxxxxxxx, LLP shall not be held liable in any way if the distributions are not
made within the one (1) business day noted herein.
SECTION 2.3. Husa acknowledges and agrees he shall be responsible for any and
all income tax liability or burden, if any, related to funds disbursed to him.
SECTION 3. FINAL DELIVERY OF GONOW
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SECTION 3.1. The parties hereby acknowledge that except as expressly
set forth in this Agreement, GoNow is being delivered to Terra in "as is"
condition and that no representations or warranties, accept as set forth herein,
are being made by or relied on by any party.
SECTION 3.2. Within three (3) days after execution of this Agreement,
GPN shall transfer access to GoNow's CRD to an individual identified by Terra as
GoNow's principal.
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SECTION 3.3. Within two days after execution of this Agreement, Terra
shall provide to the NASD any and all information requested by the NASD to
effectuate the transfer of GoNow.
SECTION 3.4. GPN shall forward to Terra any and all documents or other
information that it obtains related to the operation of GoNow while GoNow was
owned by GPN.
SECTION 3.5 Unless Husa indicates to the contrary, within two (2)
business days after execution of this Agreement, GoNow shall file with the NASD
a voluntary U5 removing Husa as GoNow's principal.
SECTION 4. MUTUAL GENERAL RELEASE OF CLAIMS BETWEEN GPN AND TERRA
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GPN and Terra, and their respective officers, owners, directors,
agents, heirs, assigns, representatives, employees, trustees, insurers, and
servants, and each of them, hereby release and absolutely discharge each other
and their respective subsidiaries, affiliates, officers, directors, owners,
agents, heirs, assigns, representatives, employees, trustees, insurers, and
servants and each of them, from each of the following:
Any and all claims, demands, damages, debts, liabilities,
accounts, actions, causes of action, judgments, executions and
attachments of every kind and nature whatsoever, whether known
or unknown, suspected or unsuspected, which either of the
parties ever had, now have, or may have in the future, arising
directly or indirectly out of Terra's Purchase of GoNow.
The parties each acknowledge that they have been informed and are aware
of the provisions of California Civil Code ss. 1542 and do expressly waive and
relinquish all rights and benefits which each party has or may have had under
said section, which reads as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR
The parties further understand and acknowledge the significance and
consequences of a specific waiver of California Civil Code ss. 1542 and hereby
assume full responsibility for any damages or losses sustained of any sort or
nature that might otherwise have been or are assertable as claims arising
directly or indirectly out of, or relating to, Terra's Purchase of GoNow.
SECTION 5. MUTUAL GENERAL RELEASE OF CLAIMS BETWEEN GPN AND HUSA
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GPN and Husa, and their respective officers, owners, directors,
agents, heirs, assigns, representatives, employees, trustees, insurers, and
servants, and each of them, hereby release and absolutely discharge each other
and their respective subsidiaries, affiliates, officers, directors, owners,
agents, heirs, assigns, representatives, employees, trustees, insurers, and
servants and each of them, from each of the following:
Any and all claims, demands, damages, debts, liabilities,
accounts, actions, causes of action, judgments, executions and
attachments of every kind and nature whatsoever, whether known
or unknown, suspected or unsuspected, which either of the
parties ever had, now have, or may have in the future, arising
directly or indirectly out the Husa Agreement and Husa's
employment with GoNow.
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The parties each acknowledge that they have been informed and are aware
of the provisions of California Civil Code ss. 1542 and do expressly waive and
relinquish all rights and benefits which each party has or may have had under
said section, which reads as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
The parties further understand and acknowledge the significance and
consequences of a specific waiver of California Civil Code ss. 1542 and hereby
assume full responsibility for any damages or losses sustained of any sort or
nature that might otherwise have been or are assertable as claims arising
directly or indirectly out of, or relating to, the Husa Agreement and Husa's
employment with GoNow.
SECTION 6. COVENANT NOT TO XXX AND INDEMNITY
SECTION 6.1.The parties to this Agreement, on behalf of themselves,
their agents, successors, assigns and affiliates agree that they will not make,
assert or maintain against any person, partnership, or corporation released
herein, any claim, demand, action or suit arising out of or in connection with
the matters herein released.
SECTION 6.2.This Closing Agreement may be pleaded by any Party as a
full and complete defense and bar to, and may be used as the basis for an
injunction against, any action, suit, or other proceeding which may be
commenced, initiated, instituted, prosecuted, maintained, or otherwise
threatened or attempted by either party against the other. This Agreement shall
be binding, enforceable, discoverable and admissible to establish the rights,
obligations and duties of the parties hereunder in any action brought to enforce
this Agreement.
SECTION 6.3.With the exception of enforcing the terms and conditions
of this Agreement, GoNow and Husa agree to indemnify hold harmless and defend
GPN from and against any and all claims, damages, or costs incurred by GPN,
including reasonable attorney fees, arising out of or related to any action
brought by Husa against GPN related to Husa's employment with GoNow.
SECTION 6.4.The provisions of this section shall not apply to the
breach or threatened breach of any of the covenants, agreements, duties,
obligations, representations, or warranties contained in or arising from this
Closing Agreement.
SECTION 7. INDEPENDENT LEGAL ADVICE
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The parties to this Closing Agreement warrant, represent, and agree
that in executing this document, they do so with full knowledge of the rights
they may have with respect to the other party to this Agreement, and that they
received or have had the opportunity to receive independent legal advice as to
these rights.
SECTION 8. GENERAL PROVISIONS
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SECTION 8.1. Waiver--Validity.
No waiver of any provision of this Closing Agreement shall constitute a
waiver of any other provision, nor shall such waiver constitute a continuing
waiver. In the event that any provision of this Closing Agreement is found to be
void or unenforceable, the remaining provisions shall nonetheless be binding
with the same effect as though the void or unenforceable parts were deleted.
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SECTION 8.2. No Oral Modifications.
The terms of this Closing Agreement may not be modified or amended
except by written agreement signed by the Party or Parties against whom
enforcement of any such modification or amendment may be sought.
SECTION 8.3. No Third-Party Beneficiaries.
It is expressly agreed that this Closing Agreement is not for the
benefit of any person or entity not a party hereto nor specifically identified
as a beneficiary herein, and is not intended to constitute a third party
beneficiary contract.
SECTION 8.4. Jointly Prepared Agreement.
This Closing Agreement was jointly negotiated and jointly drafted by
the Parties and their respective attorneys and shall not be interpreted or
construed in favor of or against any Party on the ground that said Party drafted
the Closing Agreement. Accordingly, the Parties do not believe that the
presumption of Section 1654 of the California Civil Code and similar rules
relating to the interpretation of contracts against the drafter of any
particular clause should be applied in the case of this Closing Agreement and
therefore waive its effects.
SECTION 8.5. Counterparts.
This Closing Agreement may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, and such
counterparts shall together constitute one and the same agreement. Moreover,
signatures transmitted by facsimile shall be deemed original signatures.
SECTION 8.7. Authority.
The corporate signatories below represent that they are authorized to
execute this Closing Agreement on behalf of the entities named, and to bind such
entities to the terms of this Closing Agreement.
I CERTIFY THAT I HAVE READ THE FOREGOING AGREEMENT IN ITS ENTIRETY,
INCLUDING CALIFORNIA CIVIL CODE ss. 1542 CITED HEREIN, THAT I FULLY
UNDERSTAND ALL OF THE LANGUAGE CONTAINED HEREIN, AND THAT I AGREE TO BE
BOUND BY ALL THE TERMS AND CONDITIONS SET FORTH HEREIN.
IN WITNESS WHEREOF, the Parties hereto have entered into and executed
this Closing Agreement.
GPN NETWORKS, INC. TERRA INDUSTRIES.
by /s/ Xxxx Xxxxxx by /s/ Xxxxxx Xxxxx
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Xxxx Xxxxxx Xxxxxx Xxxxx
CEO CEO/President
WILL
Www
XXXXXXX X. XXXX
/s/ Xxxxxxx X. Xxxx
Xxxxxxx X. Xxxx, Individually
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