MUTUAL RESCISSION
THIS MUTUAL RESCISSION ("Agreement") is made and entered into on this 21st
day of October, 1999, by and between Centrocom Corp., a Nevada corporation
("Corporation") (formerly FamilyWare International, Inc.); Xxxx Xxxxxxx
("Xxxxxxx"); Xxxxxx X. Xxxxxx III ("Xxxxxx"); and Centrocom Technologies
Corporation, a Nevada corporation ("CTC") (formerly Centrocom Corp.) and
provides for the rescission of that certain transaction specified by the
provisions of that Common Stock Exchange and Acquisition Agreement ("Acquisition
Agreement") dated May 7, 1999, and entered into between the Corporation,
Peacock, Xxxxxx and CTC.
RECITALS
A. On or about May 7, 1999, the Corporation, CTC, Peacock and Xxxxxx
entered into a Common Stock Exchange and Acquisition Agreement ("Acquisition
Agreement") whereby the Corporation acquired all of the issued and outstanding
$.001 par value common stock of CTC.
B. Corporation, Peacock and Xxxxxx have determined that it is in their best
interests to rescind the Acquisition Agreement. Accordingly, Corporation,
Peacock, Xxxxxx and CTC, and each of them, desire to rescind the transactions
specified by the provisions of the Acquisition Agreement and, therefore, forego
all rights and benefits specified by the provisions of the Acquisition
Agreement, and to return the respective parties to the status and position of
that existing prior to the closing of the Acquisition Agreement.
C. The rescission of the transaction specified by the provisions of the
Acquisition Agreement contemplates Corporation and CTC shall enter into (i) a
Software Licensing Agreement ("Licensing Agreement") whereby Corporation would
be granted a license to exploit the Zowwwie!.com website and related software
(collectively "Software") commercially, which license is more particularly
described in the Licensing Agreement; and (ii) a Software Maintenance and
Development Agreement providing for the development, maintenance and management
of the Software.
NOW, THEREFORE, IN CONSIDERATION OF THE RECITALS SPECIFIED ABOVE THAT SHALL BE
DEEMED TO BE A SUBSTANTIVE PART OF THIS AGREEMENT, AND THE MUTUAL COVENANTS,
PROMISES, UNDERTAKINGS, AGREEMENTS, REPRESENTATIONS AND WARRANTIES SPECIFIED IN
THIS AGREEMENT AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND
SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, WITH THE INTENT TO BE OBLIGATED
LEGALLY AND EQUITABLY, THE PARTIES DO HEREBY COVENANT, PROMISE, AGREE, REPRESENT
AND WARRANT AS FOLLOWS:
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ARTICLE I
DEFINITIONS
As used in this Agreement, in addition to terms defined elsewhere in this
Agreement, the terms specified below in this Article I shall have the
definitions and meanings specified immediately after those terms, unless a
different and common meaning of the term is clearly indicated by the context,
and variants and derivatives of the following terms shall have correlative
meanings. To the extent that certain of the definitions and meanings specified
below suggest, indicate, or express agreements between or among parties to this
Agreement, or specify representations or warranties or covenants of a party, the
parties agree to the same by execution of this Agreement. The parties to this
Agreement agree that agreements, representations, warranties, and covenants
expressed in any part or provision of this Agreement shall for all purposes of
this Agreement be treated in the same manner as other such agreements,
representations, warranties, and covenants specified elsewhere in this
Agreement, and the article or section of this Agreement within which such an
agreement, representation, warranty, or covenant is specified shall have no
separate meaning or effect on the same.
1.1 "Agreement". This Agreement of Mutual Rescission, including all of its
schedules and exhibits and all other documents specifically referred to in this
Agreement that have been or are to be delivered by a party to this Agreement to
another such party in connection with the Transaction or this Agreement, and
including all duly adopted amendments, modifications, and supplements to or of
this Agreement and such schedules, exhibits, and other documents.
1.2 "Closing". The completion of the Transaction, to occur as contemplated
by the provisions of Article II of this Agreement.
1.3 "Closing Date". The date on which the Closing actually occurs.
1.4 "Closing Time". The time at which the Closing actually occurs. All
events that are to occur at the Closing Time shall, for all purposes, be deemed
to occur simultaneously, except to the extent, if at all, that a specific order
of occurrence is otherwise described.
1.5 "Corporation". Centrocom Corp., a Nevada corporation.
1.6 "CTC". Centrocom Technologies Corporation, a Nevada corporation, which
will, pursuant to the Transaction, cease to be a subsidiary of the Corporation..
1.7 "Consideration". One million (1,000,000) shares of $.001 par value
common stock of CTC, for which nine million (9,000,000) shares of $.0005 par
value common stock of the Corporation currently held by Peacock and Xxxxxx will
be exchanged.
1.8 "Transaction". The rescission of the transaction specified by the
Acquisition Agreement pursuant to which CTC shall cease to be a subsidiary of
the Corporation.
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ARTICLE II
THE TRANSACTION
2.1 The Transaction. On the Closing Date, and at the Closing Time, subject
in all instances to each of the terms, conditions, provisions and limitations
specified in this Agreement (i) Peacock and Xxxxxx shall transfer, convey,
assign, deliver and set over to the Corporation, free and clear of any and all
liens and charges, and the Corporation shall accept from Peacock and Xxxxxx,
nine million (9,000,000) shares of $.0005 par value common stock of the
Corporation currently held by Peacock and Xxxxxx; (ii) the Corporation will
transfer, convey, assign, deliver and set over to Peacock and Xxxxxx, free and
clear of any and all liens and charges, and Peacock and Xxxxxx shall accept from
the Corporation, one million (1,000,000) shares of $.001 par value common stock
of CTC held by the Corporation; and (iii) on the Closing, after Peacock and
Xxxxxx have appointed Xxxxx Xxxxx as President, Chief Executive Officer,
Secretary and a director of the Corporation, Peacock and Xxxxxx shall resign as
officers and directors of the Corporation.
2.2 Closing. The Closing of the Transaction shall take place at the offices
of Xxxxx & Xxxxxxxxx LLP, 0000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxxx Xxxxx,
Xxxxxxxxxx, at 10:00 A.M. or at such other place and time as the Purchaser and
the Company may agree upon, on the Closing Date.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE CORPORATION
The Corporation, to the best of its knowledge, hereby represents and
warrants to Peacock and Xxxxxx:
3.1 Organization And Qualification. The Corporation is a corporation
duly organized, validly existing, and in good standing pursuant to the laws
of its jurisdiction of incorporation and has the requisite corporate power
and authority to conduct business as that business is now being conducted.
The Corporation is duly qualified as a foreign corporation to do business,
and in good standing, in each jurisdiction where the character of the
properties owned or leased by it, or the nature of its activities, is such
that qualification as a foreign corporation in that jurisdiction is
required by law.
3.2 Authority Relative to This Agreement. The Corporation has the
requisite corporate power and authority to enter into this Agreement and to
carry out its obligations created by this Agreement. The execution and
delivery of this Agreement and the consummation of the Transaction have
been duly authorized and approved by the requisite corporate authority of
the Corporation and no other corporate proceedings on the part of the
Corporation are necessary to approve and adopt this Agreement or to approve
the consummation of the Transaction, including issuance and/or assignment
and delivery of the CTC shares of stock. This Agreement has been duly and
validly executed and delivered by the Corporation and constitutes a valid
and binding obligation of the Corporation, enforceable in accordance with
its terms.
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3.3 Absence of Breach; No Consents. The execution, delivery and
performance of this Agreement, and the performance by the Corporation of
its obligations created by this Agreement do not (i) conflict with, and
will not result in a breach of, any of the provisions of the Articles of
Incorporation or Bylaws of the Corporation; (ii) contravene any law, rule
or regulation of any state or commonwealth or of the United States, or of
any applicable foreign jurisdiction, or any order, writ, judgment,
injunction, decree, determination, or award affecting or obligating the
Corporation, in such a manner as to provide a basis for enjoining or
otherwise preventing consummation of the Transaction; (iii) conflict with
or result in a material breach of or default pursuant to any material
indenture or loan or credit agreement or any other material agreement or
instrument to which Corporation is a party, in such a manner as to provide
a basis for enjoining or otherwise preventing consummation of the
Transaction; or (iv) require the authorization, consent, approval or
license of any third party of such a nature that the failure to obtain the
same would provide a basis for enjoining or otherwise preventing
consummation of the Transaction.
3.4 Aknowledgement of Ownership. The Corporation does not have, and
will not now or in the future, assert an ownership interest in any of the
following:
(1) All intellectual property and other technology, copyrights,
patent rights and proprietary rights to all such technology of
any kind, type or nature (i) owned, or contemplated as owned, by
CTC prior to the execution of the Acquisition Agreement; and (ii)
developed, acquired or conceived after the execution of the
Acquisition Agreement.
(2) The real estate lease for the premises located at 0000 Xxx Xxxx,
Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000.
(3) Any and all machinery, equipment, appliances, personal or other
property of every kind, type and nature located at 0000 Xxx Xxxx,
Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000.
(4) All books, papers and materials, computer documents, software,
source codes and computer programs or other designs, regardless
of kind, type or nature.
(5) Those accounts designated as (i) Xxxxx Xxxxxx Account Number
82601130-1-7; and (ii) Bank of America Accounts numbered
0202604709, 0202105881 and 0202707202. CTC, Xxxxxx and Xxxxxxx
shall have the right to change the name of the accounts listed in
this Section 3.4, subsection (5) from Centrocom Corp. to
Centrocom Technologies Corporation. The Corporation will take
every action reasonably necessary in order to assist CTC, Xxxxxx
and Peacock in the changing of the accounts listed in this
Section 3.4, subsection (5), to the name of CTC, such accounts
into the name of CTC.
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3.5 CTC Shares. Those one million shares of CTC assigned, transferred,
conveyed and returned to Peacock and Xxxxxx represent and evidence the
absolute and entire ownership interest of the Corporation in CTC. The
Corporation has the full, complete and unrestricted right, power and
authority to sell, assign, transfer, and deliver those one million
(1,000,000) shares to Peacock and Xxxxxx, as provided in this Agreement,
and delivery thereof pursuant to this Agreement will convey and return to
Peacock and Xxxxxx legal and beneficial ownership to the CTC shares.
3.6 Brokers. No broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission in connection with this
Agreement or the Transaction or any related transaction based upon any
agreements, written or oral, made by or on behalf of the Corporation.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PEACOCK AND XXXXXX
Xxxxxxx and Xxxxxx, and each of them, to the best of their knowledge,
hereby represent and warrant to the Corporation the following:
4.1 Title and Ownership of Shares. Peacock and Xxxxxx are the sole
legal and beneficial owners of those nine million (9,000,000) shares of
$.0005 par value common stock issued by the Corporation and held by Peacock
and Xxxxxx, free and clear of any and all liens, claims, pledges,
mortgages, encumbrances, security interests, voting trust arrangements,
restriction on sale or transfer, or other restrictions whatsoever, except
for restrictions on transfer pursuant to federal and state securities laws.
Peacock and Xxxxxx have the full, complete and unrestricted right, power
and authority to sell, assign, transfer, and deliver those nine million
(9,000,000) shares to the Corporation, as provided in this Agreement, and
delivery thereof pursuant to this Agreement will convey to the Corporation
lawful, valid and marketable title to all those shares. No other person has
any direct or indirect record or beneficial title or interest or claim of
any nature whatsoever to any of those shares.
4.2 Authority Relative to This Agreement. Peacock and Xxxxxx have the
requisite power and authority to enter into this Agreement and to carry out
their obligations created by this Agreement. The execution and delivery of
this Agreement and the consummation of the Transaction have been duly
authorized and approved by Peacock and Xxxxxx and no other action on the
part of Peacock and Xxxxxx are necessary to approve and adopt this
Agreement or to approve the consummation of the Transaction. This Agreement
has been duly and validly executed and delivered by Peacock and Xxxxxx and
constitutes a valid and binding obligation of Peacock and Xxxxxx,
enforceable in accordance with its terms.
4.3 Absence of Breach; No Consents. The execution, delivery and
performance of this Agreement, and the performance by Peacock and Xxxxxx of
their obligations created by this Agreement do not (i) contravene any law,
rule or regulation of any state or commonwealth or of the United States, or
of any applicable foreign jurisdiction, or any order, writ, judgment,
injunction, decree, determination, or award affecting or obligating Peacock
and Xxxxxx, or either of
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them, in such a manner as to provide a basis for enjoining or otherwise
preventing consummation of the Transaction; (ii) conflict with or result in
a material breach of or default pursuant to any material indenture or loan
or credit agreement or any other material agreement or instrument to which
Peacock and Xxxxxx, or either of them, is a party, in such a manner as to
provide a basis for enjoining or otherwise preventing consummation of the
Transaction; or (iii) require the authorization, consent, approval or
license of any third party of such a nature that the failure to obtain the
same would provide a basis for enjoining or otherwise preventing
consummation of the Transaction.
4.4 Brokers. No broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission in connection with this
Agreement or the Transaction or any related transaction based upon any
agreements, written or oral, made by or on behalf of Peacock and Xxxxxx, or
either of them.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF CTC
CTC represents to the Corporation, Peacock and Xxxxxx, as follows:
5.1 Authority Relative to this Agreement. This Agreement has been duly
and validly executed and delivered by CTC and constitutes a valid and
binding Agreement of the Company enforceable in accordance with its terms.
CTC has all requisite corporate power and authority to enter into this
Agreement and to carry out the Transaction, and its doing so has been duly
and sufficiently authorized.
5.2 Absence of Breach; No Consents. The execution, delivery, and
performance of that Consent To Recession, does not (i) conflict with or
result in a breach of any of the provisions of the Articles of
Incorporation or Bylaws of CTC; (ii) contravene any law, ordinance, rule,
or regulation of any State or political subdivision of either or of the
United States, will be satisfied in all material respects prior to the
Closing), or of any applicable foreign jurisdiction, or contravene any
order, writ, judgment, injunction, decree, determination, or award of any
court or other authority having jurisdiction, or cause the suspension or
revocation of any authorization, consent, approval, or license, presently
in effect, which affects or obligated, CTC or any of its material
properties, except in any such case where such contravention will not have
a material adverse effect on the business, condition (financial or
otherwise), operations or prospects of CTC, and will not have a material
adverse effect on the validity of this Agreement or on the validity of the
consummation the Transaction; (iii) conflict with or result in a material
breach of or default pursuant to any material indenture or loan or credit
agreement or any other material agreement or instrument to which CTC is a
party or by which it may be affected or obligated; (iv) require the
authorization, consent, approval, or license of any third party; or (v)
constitute any reason for the loss or suspension of any permits, licenses,
or other authorizations used in the business of CTC.
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5.3 Brokers. No broker, finder, or investment banker is entitled to
any brokerage, finder's, or other fee or commission in connection with this
Agreement or the Transaction or any related transaction based upon any
agreements, written or oral, made by or on behalf of CTC. CTC does not have
any obligation to pay finder's or broker's fees or commissions in
connection with the exercise of options to renew or extend real estate
leases to which CTC is a party.
ARTICLE VI
COVENANTS OF THE CORPORATION
6.1 Affirmative Covenants. From the date of this Agreement through the
Closing Date, the Corporation will take every action reasonably required of it
in order to satisfy the conditions to Closing set forth in this Agreement and
otherwise to ensure the prompt and expedient consummation of the Transaction
substantially as contemplated by the provisions of this Agreement, and the
Corporation will exert all reasonable efforts to cause the Transaction to be
consummated; provided, however, in all instances that the representations and
warranties of CTC, Peacock and Xxxxxx specified in this Agreement are true and
correct and that the conditions to the obligations of the Corporation set forth
in this Agreement are not incapable of satisfaction.
6.2 Cooperation. The Corporation shall cooperate with CTC, Peacock and
Xxxxxx and their counsel, accountants and agents in every way in consummating
the Transaction, and in delivering all documents and instruments deemed
reasonably necessary or useful by counsel to CTC, Peacock and Xxxxxx.
6.3 Expenses. Whether or not the Transaction is consummated, all costs and
expenses incurred by the Corporation in connection with this Agreement and the
Transaction shall be paid by the Corporation.
6.4 Delivery of Certificates. On the Closing, the Corporation shall deliver
or cause to be delivered to Peacock and Xxxxxx each and every certificate
representing those one million (1,000,000) shares of $.001 par value common
stock of CTC to which the Corporation is entitled as a result of the Acquisition
Agreement, which certificates shall be duly endorsed by the Corporation for
transfer of those shares to Peacock and Xxxxxx.
6.5 Inspection of Books and Records. In order to assist CTC and its
attorneys, auditors, officers, directors and agents to complete its year-end
audit for the fiscal year ended December 31, 1999, CTC, Xxxxxx and Peacock shall
have the right at any reasonable time to inspect all books, records and
documents of any kind of the Corporation for the period from May 7, 1999, to the
Closing Date. This inspection by CTC, Xxxxxx and Xxxxxxx may be made in person
or by an agent or attorney, and the right of inspection includes the right to
copy and make extracts of documents. The right to inspection shall cease upon
completion of CTC's audit for the fiscal year ended December 31, 1999, as
reasonably determined by CTC. CTC and its officers, directors, employees, agents
and attorneys shall cooperate fully with the Corporation and its auditors,
attorneys, agents, officers, directors and employees in the preparation of the
Corporation's audit
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for the fiscal year ended December 31, 1999.
ARTICLES VII
COVENANTS OF PEACOCK AND XXXXXX
7.1 Affirmative Covenants. From the date of this Agreement through the
Closing Date, Peacock and Xxxxxx, and each of them, will take every action
reasonably required of them in order to satisfy the conditions to Closing set
forth in this Agreement and otherwise to ensure the prompt and expedient
consummation of the Transaction substantially as contemplated by the provisions
of this Agreement, and Peacock and Xxxxxx, and each of them, will exert all
reasonable efforts to cause the Transaction to be consummated; provided,
however, in all instances that the representations and warranties of the
Corporation and CTC specified in this Agreement are true and correct and that
the conditions to the obligations of Peacock and Xxxxxx set forth in this
Agreement are not incapable of satisfaction.
7.2 Cooperation. Peacock and Xxxxxx, and each of them, shall cooperate with
the Corporation and CTC and their counsel, accountants and agents in every way
in consummating the Transaction, and in delivering all documents and instruments
deemed reasonably necessary or useful by counsel to the Corporation.
7.3 Delivery of Certificates. On the Closing, Peacock and Xxxxxx, and each
of them, shall deliver or cause to be delivered to the Corporation each and
every certificate representing those nine million (9,000,000) shares of $.0005
par value common stock of the Corporation issued by the Corporation to Peacock
and Xxxxxx, which certificates shall be duly endorsed by Peacock and Xxxxxx for
transfer of those shares to the Corporation.
7.4 Expenses. Whether or not the Transaction is consummated, all costs and
expenses incurred by Peacock and Xxxxxx in connection with this Agreement and
the Transaction shall be paid by Peacock and Xxxxxx.
7.5 Appointment of Xxxxx Xxxxx. On the Closing, Peacock and Xxxxxx, in
their capacities as the only members of the Board of Directors of the
Corporation, shall appoint Xxxxx Xxxxx as President, Chief Executive Officer,
Secretary and a member of the Board of Directors of the Corporation.
7.6 Resignation as Officers and Directors. On the Closing, after Peacock
and Xxxxxx have appointed Xxxxx Xxxxx as officers and a director of the
Corporation, as specified in Section 7.6 above, Peacock and Xxxxxx, and each of
them, shall resign as officers and directors of the Corporation.
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ARTICLE VIII
COVENANTS OF CTC
8.1 Affirmative Covenants. From the date hereof through the Closing, CTC
will take every action reasonably required of it to satisfy the conditions to
Closing set forth in this Agreement and otherwise to ensure the prompt and
expedient consummation of the Transaction substantially as contemplated by the
provisions of this Agreement, and will exert all reasonable efforts to cause the
Transaction to be consummated, provided in all instances that the
representations and warranties of the Corporation, Xxxxxx and Peacock in this
Agreement are and remain true and accurate and that the covenants and agreements
of the Corporation, Xxxxxx and Xxxxxxx in this Agreement are performed and that
the conditions to the obligations of CTC set forth in this Agreement are not
incapable of satisfaction and subject, at all times, to the right and ability of
the directors of CTC to satisfy their fiduciary obligations.
8.2 Cooperation. CTC will cooperate with the Corporation, Xxxxxx and
Peacock and their counsel, accountants and agents in every way in consummating
the Transaction and in delivering all documents and instruments deemed
reasonably necessary or useful by the Corporation.
8.3 Inspection of Books and Records. In order to assist the Corporation and
its attorneys, auditors, officers, directors and agents to complete its year-end
audit for the fiscal year ended December 31, 1999, the Corporation shall have
the right at any reasonable time to inspect all books, records and documents of
every kind of CTC for the period from May 7, 1999, to the Closing Date. This
inspection by the Corporation may be made in person or by an agent or attorney,
and the right of inspection includes the right to copy and make extracts of
documents. The right of inspection shall cease upon the completion of the
Corporation's year-end audit for the fiscal year ended December 31, 1999, as
reasonably determined by the Corporation. CTC and its officers, directors,
employees, agents and attorneys shall cooperate fully with the Corporation and
its auditors, attorneys, agents, officers, directors and employees in the
preparation of the Corporation's audit for the fiscal year ended December 31,
1999.
8.4 Expenses. Whether or not the Transaction in consummated, all costs and
expenses incurred by CTC in connection with this Agreement and the Transaction
shall be paid by CTC.
8.5 Publicity. Prior to the Closing, any written news releases by CTC
pertaining to this Agreement or the Transaction shall be submitted to the
Corporation, Xxxxxx and Xxxxxxx for review and approval prior to release by CTC,
and shall be released only in a form approved by the Corporation, Xxxxxx and
Peacock; provided, however, that (i) such approval shall not be unreasonably
withheld and (ii) such review and approval shall not be required of releases by
CTC, if prior review and approval would prevent the timely and accurate
dissemination of such press release as required to comply, in the judgment of
counsel, with any applicable law, rule, or policy.
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ARTICLE IX
CONDITIONS TO CLOSING
9.1 Conditions to Obligation of the Corporation. The obligation of the
Corporation to effect the Transaction shall be subject to the fulfillment at or
prior to the Closing of the following conditions, unless the Corporation shall
waive such fulfillment in writing:
(1) This Agreement and the Transaction shall have received all approvals,
consents, authorizations, and waivers from governmental and other
regulatory agencies and other third parties required to consummate the
Transaction.
(2) There shall not be in effect a preliminary or permanent in junction or
other order by any federal or state court which prohibits the
consummation of the Transaction.
(3) CTC, Peacock and Xxxxxx shall have performed in all material respects
each of their agreements and obligations specified in this Agreement
and required to be performed on or prior to the Closing and shall have
complied with all material requirements, rules, and regulations of all
regulatory authorities having jurisdiction relating to the
Transaction.
(4) The representations and warranties of CTC, Peacock and Xxxxxx set
forth in this Agreement shall be true in all material respects as of
the date of this Agreement.
9.2 Conditions to Obligation of CTC. The obligation of CTC to effect the
Transaction shall be subject to the fulfillment at or prior to the Closing of
the following conditions, unless CTC shall waive such fulfillment in writing:
(1) This Agreement and the Transaction shall have received all approvals,
consents, authorizations, and waivers from governmental and other
regulatory agencies and other third parties (including lenders,
holders of debt securities and lessors required by law to consummate
the Transaction.
(2) There shall not be in effect a preliminary or permanent injunction or
other order by any federal or state authority which prohibits the
consummation of the Transaction.
(3) The Corporation, Xxxxxx and Peacock shall have performed in all
material respects their agreements and obligations specified in this
Agreement required to be performed on or prior to the Closing.
(4) The representations and warranties of the Corporation, Xxxxxx and
Peacock set forth in this Agreement shall be true in all material
respects as of the date of this Agreement and, except in such respects
as do not materially and adversely affect the business of the
Corporation, as of the Closing Date as if made as of the Closing
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Date.
9.3 Conditions to Obligation of Peacock and Xxxxxx. The obligation of
Peacock and Xxxxxx to effect the Transaction shall be subject to the fulfillment
at or prior to the Closing of the following conditions, unless Peacock and
Xxxxxx shall waive such fulfillment in writing:
(1) This Agreement and the Transaction shall have received all approvals,
consents, authorizations, and waivers from governmental and other
regulatory agencies and other third parties (including lenders,
holders of debt securities and lessors required by law to consummate
the Transaction.
(2) There shall not be in effect a preliminary or permanent injunction or
other order by any federal or state authority which prohibits the
consummation of the Transaction.
(3) The Corporation and CTC shall have performed in all material respects
their agreements and obligations specified in this Agreement required
to be performed on or prior to the Closing.
(4) The representations and warranties of the Corporation and CTC set
forth in this Agreement shall be true in all material respects as of
the date of this Agreement and, except in such respects as do not
materially and adversely affect the business of the Corporation, as of
the Closing Date as if made as of the Closing Date.
ARTICLE X
DOCUMENTS TO BE DELIVERED AND INSTRUMENTS AT CLOSING
10.1 The Corporation to Peacock and Xxxxxx. On the Closing, the Corporation
shall deliver or cause to be delivered to Peacock and Xxxxxx a certificate
evidencing and representing one million (1,000,000) shares of CTC's $.001 par
value common stock.
10.2 Peacock and Xxxxxx to the Corporation. On the Closing, Peacock and
Xxxxxx, and each of them, shall deliver or cause to be delivered to the
Corporation the certificates evidencing and representing those nine million
(9,000,000) shares of $.0005 par value common stock issued by the Corporation to
Peacock and Xxxxxx pursuant to the Acquisition Agreement, which certificates
shall be duly endorsed by Peacock and Xxxxxx for transfer of those shares to the
Corporation.
ARTICLE XI
INDEMNIFICATION
11.1 Indemnification of Corporation. Xxxxxx, Peacock and CTC shall save
Corporation harmless from and against and shall indemnify Corporation for any
liability, loss, costs, expenses, or damages howsoever caused by reason of any
injury (whether to body, property, or personal or
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business character or reputation) sustained by any person or to property by
reason of any act, neglect, default or omission of Xxxxxx, Xxxxxxx or CTC or any
of Xxxxxx', Peacock's or CTC's agents, employees, or other representatives, and
Xxxxxx, Xxxxxxx and CTC shall pay all amounts to be paid or discharged in case
of an action or any such damages or injuries. If Contractor is sued in any court
for damages by reason of any of the acts of Xxxxxx, Peacock and/or CTC, Xxxxxx,
Xxxxxxx and/or CTC party shall defend the resulting action (or cause same to be
defended) at Xxxxxx', Peacock's and/or CTC's expense and shall pay and discharge
any judgment that may be rendered in any such action; if Xxxxxx, Xxxxxxx or CTC
fail or neglect to so defend in such action, Corporation may defend such action
and any expenses, including reasonable attorneys' fees, which Corporation may
pay or incur in defending such action and the amount of any judgment which
Corporation may be required to pay shall be promptly reimbursed by Xxxxxx,
Peacock and/or CTC upon demand by Corporation.
11.2 Indemnification of Xxxxxx, Xxxxxxx and CTC. Corporation shall save
Xxxxxx, Peacock and CTC harmless from and against and shall indemnify Xxxxxx,
Xxxxxxx and CTC for any liability, loss, costs, expenses, or damages howsoever
caused by reason of any injury (whether to body, property, or personal or
business character or reputation) sustained by any person or to property by
reason of any act, neglect, default or omission of Corporation or any of
Corporation's agents, employees, or other representatives, and Corporation shall
pay all amounts to be paid or discharged in case of an action or any such
damages or injuries. If Xxxxxx, Peacock or CTC are sued in any court for damages
by reason of any of the acts of Corporation, Corporation or such other party
shall defend the resulting action (or cause same to be defended) at
Corporation's expense and shall pay and discharge any judgment that may be
rendered in any such action; if Corporation fails or neglects to so defend in
such action, Xxxxxx, Xxxxxxx and CTC may defend such action and any expenses,
including reasonable attorneys' fees, which Xxxxxx, Peacock or CTC may pay or
incur in defending such action and the amount of any judgment which Xxxxxx,
Xxxxxxx or CTC may be required to pay shall be promptly reimbursed by
Corporation upon demand by Xxxxxx, Peacock or CTC.
ARTICLE XII
RELEASE OF CLAIMS
12.1 Release of Claims by Peacock.
(1) Subject to and except as to those claims contemplated by the
provisions of Article XI of this Agreement, Peacock, on behalf of
himself, his agents, relatives, associates, representatives,
employees, attorneys, joint venturers, affiliates, general and limited
partners, predecessors, affiliates, heirs, successors and assigns, and
all persons acting by, through, under or in concert with any of them,
hereby irrevocably and forever releases, acquits and discharges the
Corporation and the Corporation's agents, officers, directors,
shareholders, employees, attorneys, joint venturers, general and
limited partners, successors, predecessors, parent and subsidiary
corporations, affiliates, attorneys, accountants, representatives,
12
E-105
contractors, and assigns and all persons acting by, through, under or
in concert with any of them, from any and all claims, charges,
complaints, injuries, liabilities, obligations, losses, debts, suits,
demands, grievances, costs, expenses (including, but not limited to,
attorneys' fees, receiver fees, accountant fees, and other
professional and expert fees) rights, actions and causes of action, of
any nature or manner whatsoever, known and unknown, suspected and
unsuspected, contingent or fixed, liquidated or unliquidated, past,
present or future, including, but not limited to, rights arising out
of alleged violations of any contracts, express or implied, any
covenant of good faith and fair dealing, express or implied, any tort,
or any federal, state or other governmental statute, regulation, law
or ordinance from the beginning of time to the date of execution of
this Agreement, which Peacock may have as to the Corporation, and as
to the Corporation's agents, officers, directors, shareholders,
employees, attorneys, joint venturers, affiliates, general and limited
partners, successors, predecessors, parent and subsidiary
corporations, accountants, attorneys, contractors, representatives,
successors and assigns and all persons acting by, through, under or in
concert with any of them.
(2) The only exceptions to the releases specified in this Agreement are
(i) the obligations created and evidenced by the terms, conditions and
provisions of this Agreement, as specified expressly in this
Agreement; and (ii) those claims contemplated by the provisions of
Article XI of this Agreement.
(3) It is understood that there is a risk that, subsequent to the
execution and delivery of this Agreement, losses, damages or injuries
might be incurred which are unknown or unanticipated, for whatever
reason, at the time of the execution and delivery of this Agreement.
It is none the less specifically agreed that the releases specified in
this Agreement are fully and completely effective regardless of any
present lack of knowledge on the part of any party as to any claims,
charges, complaints, liabilities, obligations, debts, suits, demands,
grievances, losses, damages, injuries costs, expenses, rights, actions
or causes of action, or as to any possible fact or circumstance
relating in any manner to the matters for which the releases specified
in this Agreement are made. Peacock voluntarily, intentionally and
expressly waives the benefits and provisions of Section 1542 of the
Civil Code of the State of California, and any similar law of any
state or territory of the United States of America or other
jurisdiction. Specifically, that Section 1542 specifies 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."
13
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12.2 Release of Claims by Xxxxxx.
(1) Subject to and except as to those claims contemplated by the
provisions of Article XI of this Agreement, Xxxxxx, on behalf of
himself, his agents, relatives, associates, representatives,
employees, attorneys, joint venturers, affiliates, general and limited
partners, predecessors, affiliates, heirs, successors and assigns, and
all persons acting by, through, under or in concert with any of them,
hereby irrevocably and forever releases, acquits and discharges the
Corporation and the Corporation's agents, officers, directors,
shareholders, employees, attorneys, joint venturers, general and
limited partners, successors, predecessors, parent and subsidiary
corporations, affiliates, attorneys, accountants, representatives,
contractors, and assigns and all persons acting by, through, under or
in concert with any of them, from any and all claims, charges,
complaints, injuries, liabilities, obligations, losses, debts, suits,
demands, grievances, costs, expenses (including, but not limited to,
attorneys' fees, receiver fees, accountant fees, and other
professional and expert fees) rights, actions and causes of action, of
any nature or manner whatsoever, known and unknown, suspected and
unsuspected, contingent or fixed, liquidated or unliquidated, past,
present or future, including, but not limited to, rights arising out
of alleged violations of any contracts, express or implied, any
covenant of good faith and fair dealing, express or implied, any tort,
or any federal, state or other governmental statute, regulation, law
or ordinance from the beginning of time to the date of execution of
this Agreement, which Xxxxxx may have as to the Corporation, and as to
the Corporation's agents, officers, directors, shareholders,
employees, attorneys, joint venturers, affiliates, general and limited
partners, successors, predecessors, parent and subsidiary
corporations, accountants, attorneys, contractors, representatives,
successors and assigns and all persons acting by, through, under or in
concert with any of them.
(2) The only exceptions to the releases specified in this Agreement are
(i) the obligations created and evidenced by the terms, conditions and
provisions of this Agreement, as specified expressly in this
Agreement; and (ii) those claims contemplated by the provisions of
Article XI of this Agreement.
(3) It is understood that there is a risk that, subsequent to the
execution and delivery of this Agreement, losses, damages or injuries
might be incurred which are unknown or unanticipated, for whatever
reason, at the time of the execution and delivery of this Agreement.
It is none the less specifically agreed that the releases specified in
this Agreement are fully and completely effective regardless of any
present lack of knowledge on the part of any party as to any claims,
charges, complaints, liabilities, obligations, debts, suits, demands,
grievances, losses, damages, injuries costs, expenses, rights, actions
or causes of action, or as to any possible fact or circumstance
relating in any manner to the matters for which the releases specified
14
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in this Agreement are made. Xxxxxx voluntarily, intentionally and
expressly waives the benefits and provisions of Section 1542 of the
Civil Code of the State of California, and any similar law of any
state or territory of the United States of America or other
jurisdiction. Specifically, that Section 1542 specifies 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."
12.3 Release of Claims by the Corporation.
(1) Subject to and except as to those claims contemplated by the
provisions of Article XI of this Agreement, the Corporation, on behalf
of itself, its agents, subsidiary companies, officers, directors,
associates, representatives, employees, attorneys, joint venturers,
affiliates, general and limited partners, predecessors, affiliates,
heirs, successors and assigns, and all persons acting by, through,
under or in concert with any of them, hereby irrevocably and forever
releases, acquits and discharges Xxxxxx, Xxxxxxx and CTC and Xxxxxx',
Peacocks' and CTC's agents, officers, directors, shareholders,
employees, attorneys, joint venturers, general and limited partners,
successors, predecessors, parent and subsidiary corporations,
affiliates, attorneys, accountants, representatives, contractors, and
assigns and all persons acting by, through, under or in concert with
any of any one or all of them, from any and all claims, charges,
complaints, injuries, liabilities, obligations, losses, debts, suits,
demands, grievances, costs, expenses (including, but not limited to,
attorneys' fees, receiver fees, accountant fees, and other
professional and expert fees) rights, actions and causes of action, of
any nature or manner whatsoever, known and unknown, suspected and
unsuspected, contingent or fixed, liquidated or unliquidated, past,
present or future, including, but not limited to, rights arising out
of alleged violations of any contracts, express or implied, any
covenant of good faith and fair dealing, express or implied, any tort,
or any federal, state or other governmental statute, regulation, law
or ordinance from the beginning of time to the date of execution of
this Agreement, which the Corporation may have as to CTC, Xxxxxx or
Peacock , and as to CTC's, Xxxxxx' and Peacocks' agents, officers,
directors, shareholders, employees, attorneys, joint venturers,
affiliates, general and limited partners, successors, predecessors,
parent and subsidiary corporations, accountants, attorneys,
contractors, representatives, successors and assigns and all persons
acting by, through, under or in concert with any of them.
(2) The only exceptions to the releases specified in this Agreement are
(i) the obligations created and evidenced by the terms, conditions and
provisions of this
00
X-000
Xxxxxxxxx, as specified expressly in this Agreement; and (ii) those
claims contemplated by the provisions of Article XI of this Agreement.
(3) It is understood that there is a risk that, subsequent to the
execution and delivery of this Agreement, losses, damages or injuries
might be incurred which are unknown or unanticipated, for whatever
reason, at the time of the execution and delivery of this Agreement.
It is none the less specifically agreed that the releases specified in
this Agreement are fully and completely effective regardless of any
present lack of knowledge on the part of any party as to any claims,
charges, complaints, liabilities, obligations, debts, suits, demands,
grievances, losses, damages, injuries costs, expenses, rights, actions
or causes of action, or as to any possible fact or circumstance
relating in any manner to the matters for which the releases specified
in this Agreement are made. Corporation voluntarily, intentionally and
expressly waives the benefits and provisions of Section 1542 of the
Civil Code of the State of California, and any similar law of any
state or territory of the United States of America or other
jurisdiction. Specifically, that Section 1542 specifies 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."
12.4 Release of Claims by CTC.
(1) Subject to and except as to those claims contemplated by the
provisions of Article XI of this Agreement, CTC, on behalf of itself,
its agents, relatives, associates, representatives, employees,
attorneys, joint venturers, affiliates, general and limited partners,
predecessors, affiliates, heirs, successors and assigns, and all
persons acting by, through, under or in concert with any of them,
hereby irrevocably and forever releases, acquits and discharges the
Corporation and the Corporation's agents, officers, directors,
shareholders, employees, attorneys, joint venturers, general and
limited partners, successors, predecessors, parent and subsidiary
corporations, affiliates, attorneys, accountants, representatives,
contractors, and assigns and all persons acting by, through, under or
in concert with any of them, from any and all claims, charges,
complaints, injuries, liabilities, obligations, losses, debts, suits,
demands, grievances, costs, expenses (including, but not limited to,
attorneys' fees, receiver fees, accountant fees, and other
professional and expert fees) rights, actions and causes of action, of
any nature or manner whatsoever, known and unknown, suspected and
unsuspected, contingent or fixed, liquidated or unliquidated, past,
present or
16
E-109
future, including, but not limited to, rights arising out of alleged
violations of any contracts, express or implied, any covenant of good
faith and fair dealing, express or implied, any tort, or any federal,
state or other governmental statute, regulation, law or ordinance from
the beginning of time to the date of execution of this Agreement,
which CTC may have as to the Corporation, and as to the Corporation's
agents, officers, directors, shareholders, employees, attorneys, joint
venturers, affiliates, general and limited partners, successors,
predecessors, parent and subsidiary corporations, accountants,
attorneys, contractors, representatives, successors and assigns and
all persons acting by, through, under or in concert with any of them.
(2) The only exceptions to the releases specified in this Agreement are
(i) the obligations created and evidenced by the terms, conditions and
provisions of this Agreement, as specified expressly in this
Agreement; and (ii) those claims contemplated by the provisions of
Article XI of this Agreement.
(3) It is understood that there is a risk that, subsequent to the
execution and delivery of this Agreement, losses, damages or injuries
might be incurred which are unknown or unanticipated, for whatever
reason, at the time of the execution and delivery of this Agreement.
It is none the less specifically agreed that the releases specified in
this Agreement are fully and completely effective regardless of any
present lack of knowledge on the part of any party as to any claims,
charges, complaints, liabilities, obligations, debts, suits, demands,
grievances, losses, damages, injuries costs, expenses, rights, actions
or causes of action, or as to any possible fact or circumstance
relating in any manner to the matters for which the releases specified
in this Agreement are made. CTC voluntarily, intentionally and
expressly waives the benefits and provisions of Section 1542 of the
Civil Code of the State of California, and any similar law of any
state or territory of the United States of America or other
jurisdiction. Specifically, that Section 1542 specifies 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."
ARTICLE XIII
GENERAL PROVISIONS
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13.1. Notices. Any notice, direction or instrument required or permitted to
be given pursuant to this Agreement shall be given in writing by (a) telegram,
facsimile transmission or similar method, if confirmed by mail as herein
provided, by mail; (b) if mailed postage prepaid, by certified mail, return
receipt requested; or (iii) hand delivery to any party at the addresses of the
parties specified, below. If given by telegram or facsimile transmission or
similar method or by hand delivery, such notice, direction or instrument shall
be deemed to have been given or made on the day on which it was given, and if
mailed, shall be deemed to have been given or made on the second (2nd) business
day following the day after which it was mailed. Any party may, from time to
time by similar notice, give notice of any change of address, and in such event,
the address of such party shall be deemed to be changed accordingly. The
address, telephone number and facsimile transmission number for the notice of
each party are:
If to the Corporation: Centrocom Corp.
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
If to Peacock and Xxxxxx: Xxxxxx X. Xxxxxx III
0000 Xxx Xxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Xxxx Xxxxxxx
0000 Xxx Xxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
If to CTC: Centrocom Technologies Corporation
0000 Xxx Xxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
13.2. Recovery of Enforcement Costs. In the event any party shall institute
any action or proceeding to enforce any provision of this Agreement to seek
relief from any violation of this Agreement, or to otherwise obtain any judgment
or order relating to or arising from the subject matter of this Agreement, each
prevailing party shall be entitled to receive from each losing party such
prevailing party's actual attorneys' fees and costs incurred to prosecute or
defend such action or proceeding.
13.3. Assignment. No party shall have the right, without the consent of the
other party, to assign, transfer, sell, pledge, hypothecate, delegate, or
otherwise transfer, whether voluntarily, involuntarily or by operation of law,
any of such party's rights or obligations created by the provisions of this
Agreement, nor shall the parties' rights be subject to encumbrance or the claim
of creditors. Any such purported assignment, transfer, or delegation shall be
null and void.
13.4. Captions and Interpretations. Captions of the articles and sections
of this Agreement are for convenience and reference only, and the works
specified therein shall in xx xxx
00
X-000
xx held to explain, modify, amplify or aid in the interpretation, construction,
or meaning of the provisions of this Agreement. The language in all parts to
this Agreement, in all cases, shall be construed in accordance with the fair
meaning of that language as if prepared by all parties and not strictly for or
against any party. Each party and counsel for such party have reviewed this
Agreement. The rule of construction which requires a court to resolve any
ambiguities against the drafting party shall not apply in interpreting the
provisions of this Agreement.
13.5. Entire Agreement. This Agreement and the exhibits to this Agreement
are the final written expression and the complete and exclusive statement of all
the agreements, conditions, promises, representations, warranties and covenants
between the parties with respect to the subject matter of this Agreement, and
this Agreement supersedes all prior or contemporaneous agreements, negotiations,
representations, warranties, covenants, understandings and discussions by and
between and among the parties, their respective representatives, and any other
person, with respect to the subject matter specified in this Agreement. No
provision of any exhibit or schedule to this Agreement shall supersede or annul
the terms and provisions of this Agreement, unless the matter specified in such
exhibit or schedules shall explicitly so provide to the contrary, in the event
of ambiguity in meaning or understanding between the provisions of this
Agreement proper and the appended exhibits, the provisions of this Agreement
shall prevail and control in all instances.
13.6 Waiver and Modification. No modification, supplement or amendment of
this Agreement or of any covenant, representation, warranty, condition, or
limitation specified in this Agreement shall be valid unless the same is made in
writing and duly executed by both parties. No waiver of any covenant,
representation, warranty, condition, or limitation specified in this Agreement
shall be valid unless the same is made in writing and duly executed by the party
making the waiver. No waiver of any provision of this Agreement shall be deemed,
or shall constitute, a waiver of any other provision, whether or not similar,
nor shall any waiver constitute a continuing waiver.
13.7 Further Assurances. The parties shall from time to time sign and
deliver any further instruments and take any further actions as may be necessary
to effectuate the intent and purposes of this Agreement.
13.8 Number and Gender. Whenever the singular number is used in this
Agreement and, when required by the context, the same shall include the plural,
and vice versa; the masculine gender shall include the feminine and the neuter
genders, and vice versa, and the word "person" shall include individual,
company, sole proprietorship, corporation, joint venture, association, joint
stock company, fraternal order, cooperative, league, club, society,
organization, trust, estate, governmental agency, political subdivision or
authority, firm, municipality, congregation, partnership, or other form of
entity, whether active or passive.
13.9 Successors and Assigns. This Agreement and each of its provisions
shall obligate the heirs, executors, administrators, successors, and assigns of
each of the parties. Nothing specified in this section, however, shall be a
consent to the assignment or delegation by any party
19
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of such party's respective rights and obligations created by the provisions of
this Agreement.
13.10 Third Party Beneficiaries. Except as expressly specified by the
provisions of this Agreement, this Agreement shall not be construed to confer
upon or give to any person, other than the parties hereto, any right, remedy or
claim pursuant to, or by reason of, this Agreement or of any term or condition
of this Agreement.
13.11 Severability. In the event any part of this Agreement, for any
reason, is determined by a court of competent jurisdiction to be invalid, such
determination shall not affect the validity of any remaining portion of this
Agreement, which remaining portion shall remain in full force and effect as if
this Agreement had been executed with the invalid portion thereof eliminated. It
is hereby declared the intention of the parties that they would have executed
the remaining portion of this Agreement without including any such part, parts,
or portion which, for any reason, may be hereafter determined to be invalid.
13.12 Governmental Rules and Regulations. The Transaction is and shall
remain subject to any and all present and future orders, rules and regulations
of any duly constituted authority having jurisdiction of the Transaction.
13.13 Execution in Counterparts. This Agreement may be prepared in multiple
copies and forwarded to each of the parties for execution. All of the signatures
of the parties may be affixed to one copy or to separate copies of this
Agreement and when all such copies are received and signed by all the parties,
those copies shall constitute one agreement which is not otherwise separable or
divisible. Counsel for the Corporation shall keep all of such signed copies and
shall conform one copy to show all of those signatures and the dates thereof and
shall mail a copy of such conformed copy to each of the parties within thirty
(30) days after the receipt by such counsel of the last signed copy, and such
counsel shall cause one such conformed copy to be filed in the principal office
of such counsel.
13.14 Reservation of Rights. The failure of any party at any time or times
hereafter to require strict performance by any other party of any of the
warranties, representations, covenants, terms, conditions and provisions
specified in this Agreement shall not waive, affect of diminish any right of
such party failing to require strict performance to demand strict compliance and
performance therewith and with respect to any other provisions, warranties,
terms, and conditions specified in this Agreement. Any waiver of any default
shall not waive or affect any other default, whether prior or subsequent
thereto, and whether the same or of a different type.
13.15 Survival of Covenants, Representations and Warranties. All covenants,
representations, and warranties made by each party to this Agreement shall be
deemed made for the purpose of inducing the other party to enter into and
execute this Agreement. The representations, warranties, and covenants specified
in this Agreement shall survive the Closing and shall survive any investigation
by either party whether before or after the execution of this Agreement. The
covenants, representations, and warranties of CTC and Peacock and Xxxxxx, on
20
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the one hand, and the Corporation, on the other hand, are made only to and for
the benefit of each other and shall not create or vest rights in other persons.
13.16 Concurrent Remedies. No right or remedy specified in this Agreement
conferred on or reserved to the parties is exclusive of any other right or
remedy specified in this Agreement or by law or equity provided or permitted;
but each such right and remedy shall be cumulative of, and in addition to, every
other right and remedy specified in this Agreement or now or hereafter existing
at law or in equity or by statute or otherwise, and may be enforced concurrently
therewith or from time to time. the termination of this Agreement for any reason
whatsoever shall not prejudice any right or remedy which any party may have,
either at law, in equity, or pursuant to the provisions of this Agreement.
13.17 Governing Law. This Agreement shall be deemed to have been entered
into in the County of Orange, State of California, and all questions concerning
the validity, interpretation, or performance of any of the terms, conditions and
provisions of this Agreement or of any of the rights or obligations of the
parties shall be governed by, and resolved in accordance with, the laws of the
State of California, without regard to conflicts of law principles. Any and all
actions or proceedings, at law or in equity, to enforce or interpret the
provisions of this Agreement shall be litigated in courts having situs within
the County of Orange, State of California. No claim, demand, action, proceeding,
litigation, hearing, motion or lawsuit resulting from or with respect to this
Agreement shall be commenced or prosecuted in any jurisdiction other than the
State of California, and any judgment, determination, finding or conclusion
reached or rendered in any other jurisdiction shall be null and void. Each party
hereby consents expressly to the jurisdiction of any local, state or federal
court located within the State of California and consents that any service of
process in such action or proceeding may be made by personal service upon such
party wherever such party may be then located, or by certified or registered
mail directed to such party at such party's last known address.
13.18 Force Majeure. If any party is rendered unable, completely or
partially, by the occurrence of an event of "force majeure" (hereinafter
defined) to perform such party's obligations created by the provisions of this
Agreement, such party shall give to the other party prompt written notice of the
event of "force majeure" with reasonably complete particulars concerning such
event; thereupon, the obligations of the party giving such notice, so far as
those obligations are affected by the event of "force majeure," shall be
suspended during, but no longer than, the continuance of the event of "force
majeure." The party affected by such event of "force majeure" shall use all
reasonable diligence to resolve, eliminate and terminate the event of "force
majeure" as quickly as practicable. The requirement that an event of "force
majeure" shall be remedied with all reasonable dispatch as hereinabove
specified, shall not require the settlement of strikes, lockouts or other labor
difficulties by the party involved, contrary to such party's wishes, and the
resolution of any and all such difficulties shall be handled entirely within the
discretion of the party concerned. The term "force majeure" as used in this
Agreement shall be defined as and mean any act of God, strike, civil
disturbance, lockout or other industrial disturbance, act of the public enemy,
war, blockage, public riot, earthquake, tornado, hurricane, lightening, fire,
public demonstration,
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storm, flood, explosion, governmental action, governmental delay, restraint or
inaction, unavailability of equipment, and any other cause or event, whether of
the type enumerated specifically in this section or otherwise, which is not
reasonably within the control of the party claiming such suspension.
13.19 Consent to Agreement. By executing this Agreement, each party, for
itself represents such party has read or caused to be read this Agreement in all
particulars, and consents to the rights, conditions, duties and responsibilities
imposed upon such party as specified in this Agreement. Each party represents,
warrants and covenants that such party executes and delivers this Agreement of
its own free will and with no threat, undue influence, menace, coercion or
duress, whether economic or physical. Moreover, each party represents, warrants,
and covenants that such party executes this Agreement acting on such party's own
independent judgment and upon the advice of such party's counsel.
22
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be signed
on the date first written above.
Centrocom Corp.,
a Nevada corporation
By: /s/ Xxxxx Xxxxx /s/ Xxxx Xxxxxxx EP
-------------------------------- ----------------------------------------
Xxxxx Xxxxx Xxxx Xxxxxxx, in his individual capacity
Its: President and Secretary
/s/ Xxxxxx X. Xxxxxx III
----------------------------------------
Xxxxxx X. Xxxxxx III, in his individual
capacity VB
Centrocom Technologies Corporation,
a Nevada corporation
By: /s/ XXXX XXXXXXX
--------------------------------
Its: President
By: /s/ XXXXXX X. XXXXXX III
--------------------------------
Its: Secretary
23
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