INFOCAST CORPORATION
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
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May 18, 1999
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
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Dear Sirs:
InfoCast Corporation ("InfoCast") writes to set out the terms
of the agreement between InfoCast and ▇▇▇▇▇▇ ▇▇▇▇▇▇ ("Kumeta") relating to
restructuring of Kumeta's relationships with InfoCast, InfoCast Canada
Corporation ("InfoCast Canada"), Virtual Performance Systems Inc.
("VPS") and Treetop Capital Inc. ("Treetop").
Background
1. Kumeta was a shareholder and director of VPS.
2. VPS amalgamated with its wholly owned subsidiary, Cheltenham
Technologies Corporation ("Cheltenham"). Cheltenham Technologies (Bermuda)
Corporation ("Cheltenham Bermuda") was a wholly owned subsidiary of Cheltenham
which became a wholly owned subsidiary of VPS upon completion of the
amalgamation.
3. VPS or Cheltenham Bermuda acquired from Kumeta, directly and
indirectly, or Kumeta developed for VPS or Cheltenham Bermuda, directly
or indirectly, certain intellectual property consisting of technology,
software programs, source code, programming, algorithms and
developments, whether in written form or electronic form, relating to:
(a) remote or virtual banking and transaction processing
capabilities;
(b) virtual call centre; and
(c) conversion and delivery of training and educational content.
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4. InfoCast Canada is a subsidiary of InfoCast.
5. InfoCast Canada acquired all the outstanding shares of VPS in
consideration of the issuance of exchangeable shares of InfoCast
Canada, exchangeable for shares of InfoCast in certain circumstances.
Kumeta received 289,742 exchangeable shares of InfoCast Canada
exchangeable for 289,742 shares of InfoCast.
6. Kumeta is a beneficial shareholder of Treetop. Treetop holds 9,000,000
shares of InfoCast. All the issued and outstanding shares of Treetop
are held by ▇▇▇▇▇ & Company, In Trust as nominee for the beneficial
owners of the Treetop shares.
7. Kumeta and InfoCast have decided to restructure Kumeta's relationship
with InfoCast, InfoCast Canada, VPS, Cheltenham Bermuda and Treetop.
Terms
In consideration of the mutual covenants and agreements
contained in this letter agreement and other valuable and good consideration,
Kumeta and InfoCast agree as follows:
8. Kumeta has resigned as officer, director and employee of InfoCast, VPS
and Cheltenham Bermuda and terminated his consulting agreements, or
arrangements with InfoCast and VPS.
9. InfoCast shall retain Kumeta as a consultant for a period of twelve
months commencing April 1, 1999 in respect of which InfoCast shall pay
Kumeta a monthly retainer of CDN$7,500 per month for six days per
month.
10. InfoCast shall pay Kumeta concurrently with the execution hereof the
sum of CDN$75,000.
11. Kumeta consents to the cancellation of stock options granted by
InfoCast to Kumeta, other than options to acquire 100,000 common shares
of InfoCast exercisable at a price of $1.00 on or before February 8,
2002, which InfoCast and Kumeta acknowledge may be subject to
regulatory approval or disapproval by the Securities Exchange
Commission (United States) in connection with InfoCast's Form 10
registration under the Securities Exchange Act (1934) (United States).
12. Kumeta acknowledges and agrees that he is the beneficial owner of
211,000 shares of Treetop which are held on his behalf by ▇▇▇▇▇ &
Company, in trust as nominee, representing an indirect beneficial
ownership in 211,000 common shares of InfoCast held by Treetop.
13. (a) InfoCast agrees to transfer and assign or cause Cheltenham
Bermuda to transfer and assign to Kumetech Consulting Ltd. all
intellectual property, including technology, software
programs, source code, programming, algorithms and
developments, whether in written form or electronic form,
relating to remote or virtual banking and
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transaction processing capabilities in consideration of
Kumetech Consulting Ltd. paying to InfoCast CDN$1.00.
(b) Kumeta agrees to cause Kumetech Consulting Ltd. to grant to
InfoCast a perpetual non-exclusive royalty free license to use
for its internal purposes only any such intellectual property
transferred and assigned to Kumeta Consulting Ltd.; including
any enhancements or developments of and to the intellectual
property and any enhancements or developments of an to the
intellectual property transferred to Kumetech Consulting Ltd.
14. Kumeta agrees to cause to be transferred and assigned to InfoCast,
InfoCast Canada or VPS, as InfoCast may direct, all intellectual
property, including technology, software, programs, sources code,
programming, algorithms and direction and developments and all written,
electronic or other recorded forms thereof, relating to Virtual Call
Center and conversion and delivery of training and educational content
in consideration of InfoCast entering into this agreement.
15. (a) In consideration of the mutual covenants contained in this
Agreement InfoCast, on its own behalf and on behalf of VPS,
InfoCast Canada, Cheltenham Bermuda and Treetop, their
respective officers, directors, servants, agents, successors
and assigns, on the one hand, and Kumeta for himself and on
behalf of Advanced Systems Computer Consultants Inc. on the
other hand, hereby remise, release and forever discharge each
from the other from any and all manner of actions, causes of
action, suits, debts, duties, accounts, bonds, covenants,
warranties, contracts, claims and demands of every nature or
kind existing at the present time; and
(b) It is understood and agreed that this mutual release does not
in anyway affect each parties' obligations and liability under
this Agreement.
16. Kumeta acknowledges and agrees that other than as set out herein, he
has no and shall have not ongoing claims or other rights to any
compensation from InfoCast, InfoCast Canada, VPS or Cheltenham Bermuda
or Treetop or any of their respective officers, directors or
shareholders, any claims or rights to any assets or property of any of
InfoCast, InfoCast Canada, VPS, or Cheltenham Bermuda, including
without limitation, any intellectual property, technology, software
programs, source code, programming, algorithms or developments, whether
in written form or electronic form.
17. Kumeta acknowledges and agrees that all information concerning
InfoCast, InfoCast Canada, VPS and Cheltenham Bermuda, other than
relating to remote or virtual banking and transaction processing
capabilities as provided herein, and all information relating to the
property, business or affairs of InfoCast, VPS or Cheltenham Bermuda
disclosed to him consists of proprietary and confidential information
and trade secrets of InfoCast, InfoCast Canada, VPS and Cheltenham
Bermuda, as the case may be, and that any disclosure or use
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thereof by him or any other person will cause irreparable harm to
InfoCast, InfoCast Canada, VPS or Cheltenham Bermuda. Kumeta agrees
that he shall not at any time or under any circumstances, directly or
indirectly, reveal, disclose or otherwise make available or known to
any person or use or obtain any benefit from, directly or indirectly,
any confidential information which has been disclosed or otherwise
comes into his possession as a result of his prior relationships with
InfoCast, InfoCast Canada, VPS or Cheltenham Bermuda.
18. Kumeta covenants and agrees that he shall not, directly or indirectly,
either alone in conjunction with any person, in any capacity
whatsoever, carry on or be engaged in or interested in or employed by
any person or business which competes with InfoCast or VPS in the
virtual call center and/or distance learning businesses conducted or
which may be conducted by InfoCast and its subsidiary and affiliates
for a period of one year.
19. Otherwise then as provided in the foregoing sections, InfoCast
acknowledges that there are and will be no restrictions on the
activities which Kumeta may engage in from and after the date hereof.
General
20. Whenever used in this Agreement, words importing the singular number
only shall include the plural, and vice versa, and words importing the
masculine gender shall include the feminine gender.
21. Time shall in all respects be of the essence of this Agreement.
22. The insertion of headings and the division of this Agreement into
articles, sections, paragraphs, clauses or schedules are for
convenience of reference only and shall not affect or be utilized in
the construction or the interpretation hereof.
23. This Agreement shall be governed by and construed in accordance with
the laws of the Province of Ontario and the laws of Canada applicable
therein and the parties hereby attorn to the jurisdiction of the courts
of the Province of Ontario.
24. All dollar amounts expressed herein refer to lawful currency of Canada.
25. Any notice, document or other communication required or permitted by
this Agreement to be given by a party hereto shall be in writing and is
sufficiently given if delivered personally, or if sent by prepaid
ordinary mail posted in Canada, or if transmitted by any form of
telecommunication (which is tested prior to transmission, confirms to
the sender the receipt of the entire transmission by the recipient and
reproduces a complete written version of the transmission at the point
of reception) to such party addressed as set out on the face page
hereof. Notice so mailed shall be deemed to have been given on the
third business day after deposit in a post office or public letterbox.
Neither party shall mail any notice, request or
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other communication hereunder during any period in which Canadian
postal workers are on strike or if such strike is imminent and may
reasonably be anticipated to affect the normal delivery of mail. Notice
transmitted by a form of recorded telecommunication during normal
business hours on a business day (9:00 a.m. to 5:00 p.m. local time at
the place of receipt) shall be deemed to have been given on the day of
transmission or, in the case of notice transmitted outside of normal
business hours shall be deemed to have been given on the first Business
day after the day of transmission; [provided that immediately following
such transmission such notice is given by personal delivery]. Notice
delivered personally shall be deemed to have been given on the day it
was delivered. Any party may from time to time notify the others in the
manner provided herein of any change of address which thereafter, until
changed by like notice, shall be the address of such party for all
purposes hereof.
26. The parties agree to execute and deliver to each other such further
instruments and other written assurances and to do or cause to be done
such further acts or things as may be necessary or convenient to carry
out and give effect to the intent of this Agreement or as any of the
parties may reasonably request in order to carry out the transactions
contemplated herein.
27. This Agreement sets forth the entire agreement among the parties hereto
pertaining to the specific subject matter hereof and replaces and
supersedes all prior agreements, understandings, negotiations and
discussions, whether oral or written, of the parties hereto, and there
are no warranties, representations or other agreements, whether oral or
written, express or implied, statutory or otherwise, between the
parties hereto in connection with the subject matter hereof except as
specifically set forth herein. No supplement, modification, waiver or
termination of this Agreement shall be binding unless executed in
writing by the party to be bound thereby.
28. Each of the provisions of this Agreement (and each part of each such
provision) is severable from every other provision hereof (and every
other part thereof). In the event that any provision (or part thereof)
contained in this Agreement or the application thereof to any
circumstance shall be invalid, illegal or unenforceable, in whole or in
part, in any jurisdiction and to any extent:
(a) the validity, legality or enforceability of such provision (or
such part thereof) in any other jurisdiction and of the
remaining provisions contained in this Agreement (or the
remaining parts of such provision, as the case may be) shall
not in any way be affected or impaired thereby;
(b) the application of such provision (or such part thereof) to
circumstances other than those as to which it is held invalid,
illegal or unenforceable shall not in any way be affected or
impaired thereby;
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(c) such provision (or such part thereof) shall be severed from
this Agreement and ineffective to the extent of such
invalidity, illegality or unenforceability in such
jurisdiction and in such circumstances; and
(d) the remaining provisions of this Agreement (or the remaining
parts of such provision, as the case may be) shall
nevertheless remain in full force and effect.
29. This Agreement may be executed by the parties hereto in separate
counterparts or duplicates each of which when so executed and delivered
shall be an original, but all such counterparts or duplicates shall
together constitute one and the same instrument.
30. This Agreement shall be binding upon and shall enure to the benefit of
the parties hereto and their respective heirs, executors,
administrators, successors, assigns and legal representatives.
IN WITNESS WHEREOF the parties have executed this Agreement as
of the date first above written.
INFOCAST CORPORATION
By:
Signed, sealed and delivered in the presence of /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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