AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into this 17th day
of November, 1997, by and between XXXXXX GROUP, INC., a Delaware corporation
("Xxxxxx"), HIREL HOLDINGS, INC., a Delaware corporation ("Hirel") and XXXXXXX
XXXXXXXXXX ("Xxxxxxxxxx").
W I T N E S S E T H:
WHEREAS, Xxxxxx is engaged in negotiations to acquire all of the
issued and outstanding shares of UNITED INFORMATION SYSTEMS, INC., a Florida
corporation, and UIS INDUSTRIAL LTDA, a Brazilian corporation (collectively
hereinafter referred to as "UIS"); and
WHEREAS, UIS is in the business of assembling, manufacturing,
distributing and selling Windows-based computer parts, components and
accessories, with sales of completed goods primarily to the Latin American
market ("UIS Business"), and
WHEREAS, Hirel, through the "Mac-in-Stock" division of its
wholly-owned subsidiary, Hirel Marketing, Inc., is engaged in the sale of
personal computers and accessories manufactured by or for use with personal
computers manufactured by Apple Computer Company ("Mac-in- Stock Business");
and
WHEREAS, Xxxxxxxxxx, the president of Hirel, has extensive experience
in the structuring and operation of businesses engaged in computer sales and
computer sales related activities; and
WHEREAS, UIS desires to retain 2M Capital Corp., a Florida
corporation ("2M") in which Xxxxxxxxxx is a shareholder, in order for 2M, by
and through its employees (including Xxxxxxxxxx) to provide certain consulting
services to UIS; and
WHEREAS, Xxxxxxxxxx and Hirel entered into that certain Employment
Agreement dated May 2, 1996 ("Employment Agreement"), which Employment
Agreement provided certain restrictions on the ability of Xxxxxxxxxx, directly
or indirectly through a corporation in which he may be a shareholder, from
providing consulting services to third parties; and
WHEREAS, in order to induce Hirel to amend the Employment Agreement
with Xxxxxxxxxx so as to enable Xxxxxx to enter into a Consulting Agreement
with 2M, Xxxxxx has agreed to transfer the "Xxxxxx Stock" (as hereinafter
defined) to Hirel.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to
be legally bound, hereby agree as follows:
1. Recitals. The foregoing recitals are true and correct and are
incorporated herein by this reference.
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2. Xxxxxx Stock. Simultaneous with the closing by Xxxxxx with its
proposed acquisition of UIS, and in exchange for the agreement by Hirel to
modify its Employment Agreement with Xxxxxxxxxx as provided pursuant to
Section 3 hereof, Xxxxxx shall pay to Hirel the sum of $80,000, payable by
issuance to Hirel of 200,000 shares of the common stock of Xxxxxx, par value
.001 ("Xxxxxx Stock"). One hundred thousand (100,000) shares of the Xxxxxx
Stock may not be sold, transferred, assigned, pledged, hypothecated,
encumbered or otherwise directly or indirectly disposed of for a period of
twenty-four months following the date hereof without the prior written consent
of a majority of the members of the Oversight Committee of 2M Capital Corp.
(the "Restricted Shares"), while the remaining one hundred thousand (100,000)
shares of the Xxxxxx Stock shall not be subject to such restrictions on
transfer (the "Unrestricted Shares"). The Restricted Shares may not be sold,
transferred, assigned, pledged, hypothecated, encumbered or otherwise directly
or indirectly disposed of for a period of twenty-four months following the
date hereof without the prior written consent of a majority of the members of
the Oversight Committee of 2M Capital Corp. The Xxxxxx Stock shall not be
registered as of the date of transfer, but shall be subject to registration as
hereafter provided. Hirel is entitled to registration rights, including
piggyback registration rights, for the Xxxxxx Stock when Xxxxxx proposes to
file a registration statement under the Securities Act of 1933, as amended,
with respect to an offering for its own account of any class of security
(other than in connection with a merger pursuant to a Form S-3) or for the
account of Xxxxxx'x shareholders. Xxxxxx will bear all expenses of such
registration. Xxxxxx agrees to file a registration statement not later than
January 1, 1998.
3. Consulting Agreement. In consideration of the Xxxxxx Stock, Hirel
and Xxxxxxxxxx hereby agree to terminate the Employment Agreement, and in lieu
thereof to enter into the Consulting Agreement in the form attached hereto and
made a part hereof as Exhibit A ("Consulting Agreement"). The Consulting
Agreement shall be entered into at the Xxxxxx Closing, and the Employment
Agreement shall remain in full force and effect until the Xxxxxx Closing. In
the event that the Xxxxxx Closing shall not occur on or before December 31,
1997, this Agreement shall be null and void and of no further force and
effect, the Employment Agreement shall continue in full force and effect, and
the Xxxxxx Stock shall not be transferred to Hirel.
4. Release of Covenants. Hirel hereby agrees that the operations of
its Mac-in-Stock division consist solely of the sale of personal computers and
accessories manufactured by Apple Computer Company ("Apple"), and that it is
not engaged in the manufacture, sale or distribution of personal computers in
Latin America, other than those manufactured by Apple. Accordingly, Hirel
hereby agrees that it does not have, and shall not have, any cause or causes
of action against Xxxxxx, UIS or Xxxxxxxxxx by virtue of any covenants against
competition that may have previously been executed by Xxxxxxxxxx with Hirel,
or pursuant to the Consulting Agreement. Hirel further acknowledges and agrees
that Xxxxxxxxxx does not have any "confidential information," as such term is
defined under the Employment Agreement, that does or could relate to the UIS
business, and accordingly Hirel agrees that it has no cause or causes of
action that may be brought against Xxxxxx or Xxxxxxxxxx as a result of the
services to be provided by 2M to Xxxxxx under the 2M Consulting Agreement.
5. Indemnification. Hirel hereby agrees to defend, indemnify and hold
Xxxxxx harmless from and against any and all liability, expense or damage
incurred or sustained by reason of any
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claims against Xxxxxx arising out of or resulting from the contractual
relationship between Hirel and Xxxxxxxxxx, including, but not limited to, the
release by Hirel from the Employment Agreement.
6. Notices. All notices, demands and other communications given
hereunder shall be in writing and shall be deemed to have been duly given (a)
upon hand delivery thereof, (b) upon telefax and written confirmation of
receipt, (c) upon receipt of any overnight deliveries, or (d) on the third
(3rd) business day after mailing United States registered or certified mail,
return receipt requested, postage prepaid, to the addresses set forth below
their respective signatures, or to such other address or to such other person
as any party shall designate to the others for such purposes in the manner
hereinabove set forth.
7. Further Assurances. The parties will execute and deliver such
further instruments and do such further acts and things as may be required to
carry out the intent and purposes of this Agreement.
8. Successors and Assigns. This Agreement and any amendments hereto
shall be binding upon and, to the extent expressly permitted by the provisions
hereof, shall inure to the benefit of the parties, their respective successors
and assigns.
9. Applicable Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Florida. This Agreement is
intended to be performed in accordance with, and only to the extent permitted
by, all applicable laws, ordinances, rules, and regulations of the
jurisdiction in which the Partnership does business.
10. Entire Agreement. This Agreement sets forth all (and is intended
by all parties hereto to be an integration of all) of the promises,
agreements, conditions, understandings, warranties and representations among
the parties hereto with respect to the Partnership, the Partnership business
and the Partnership assets, and there are no promises, agreements, conditions,
understandings, warranties or representations, oral or written, express or
implied, except as set forth herein. In the event of any conflict between the
terms of this Agreement and the Shareholders Agreement, the terms of the
Shareholders Agreement shall govern.
11. Counterparts. This Agreement and any amendments hereto may be
executed in counterparts, each of which shall be deemed an original, and such
counterparts shall constitute but one and the same instrument.
12. Gender. Whenever the context requires, any pronoun used herein
may be deemed to mean the corresponding masculine, feminine or neuter in form
thereof and the singular form of any nouns and pronouns herein may be deemed
to mean the corresponding plural and vice versa as the case may require.
13. Arbitration. Any controversy, dispute, disagreement or claim
arising out of or related to any provision of this Agreement, or any alleged
breach of provisions relating thereto, other than with respect to any
provision hereunder for which injunctive or other equitable relief is
specifically provided for hereunder, shall be settled exclusively by binding
arbitration, which shall be conducted
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in Palm Beach County, Florida before a panel of three arbitrators in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association as in effect from time to time, except as modified by the
agreement of all of the parties to this Agreement. The arbitrator(s) shall use
their best efforts to conduct the arbitration so that a final result,
determination, finding, judgment and/or award (the "Final Determination") is
made or rendered no later than ninety (90) business days after the delivery of
the notice of arbitration nor later than twenty (20) days following conclusion
of the arbitration hearing. The Final Determination must be signed by the
arbitrator. The Final Determination shall be final and binding on all parties
and there shall be no appeal from or reexamination of the Final Determination,
except for fraud, perjury, evident partiality or misconduct by an arbitrator
prejudicing the rights of any party and to correct manifest clerical errors.
The parties to such arbitration may enforce any Final Determination in any
state or federal court having jurisdiction over the dispute.
14. Remedies. Each of the parties acknowledge and agree that in the
event that a party hereto shall violate any of the restrictions or fail to
perform any of the obligations hereunder, the other parties will be without
adequate remedy at law and will therefore be entitled to enforce such
restrictions or obligations by temporary or permanent injunctive or mandatory
relief obtained in an action or proceeding instituted in any court of
competent jurisdiction without the necessity of proving damages and without
prejudice to any other remedies it may have at law or in equity.
15. No Third Party Beneficiary. This Agreement is made solely and
specifically among and for the benefit of the parties hereto, and their
respective successors and assigns subject to the express provisions hereof
relating to successors and assigns, and no other person shall have any rights,
interest or claims hereunder or be entitled to any benefits under or on
account of this Agreement as a third party beneficiary or otherwise; provided,
however, that the provisions of Section 3 hereof shall inure to the benefit of
UIS.
16. No Recordation. Neither this Agreement nor any memorandum thereof
shall be recorded amongst the public records of any governmental authority
without the prior written consent of all of the parties hereto.
17. Time of the Essence. Time is of the essence as to all time
periods set forth in this Agreement.
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IN WITNESS WHEREOF, the parties hereto have made and entered into
this Agreement as of the date first above written.
XXXXXX GROUP, INC.
By:
___________________________________
Address: 0000 Xxxxxxxxx Xxxxxxxxx
Xxxxx 000 Xxxx
Xxxx Xxxxx, XX 00000
HIREL HOLDINGS, INC.
By:
___________________________________
Address: 000 X.X. 00xx Xxxxxxx
Xxxxxxx Xxxxx, XX 00000
Attention: President
/s/ XXXXXXX XXXXXXXXXX
---------------------------------------
XXXXXXX XXXXXXXXXX, individually
Address:
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