SHARE ISSUANCE AGREEMENT
EXHIBIT
10
This
Share Issuance Agreement (the “Agreement”) is entered into as of June 18, 2008
(the “Effective Date”), by and between Terrace Lane, LLC (“TL”) and Xxxxx
Enterprises, Inc. (“Xxxxx”), with reference to the following facts and
circumstances:
X. Xxxxx
is presently engaged in a search for a merger partner and TL is capable of
helping Xxxxx with that search.
NOW,
THEREFORE, for good and valuable consideration, the receipt and adequacy of
which is hereby acknowledged, the parties hereto agree as follows:
1. Services
to be Rendered by TL. Until June 17, 2009 (the “Termination
Date”), TL shall use reasonable commercial efforts to locate one or more
potential merger partner(s) for Xxxxx which meet Xxxxx’x specifications (as
communicated to TL from time-to-time). It is understood and agreed
that any decision to proceed with a transaction with a potential merger partner
shall be in Xxxxx’x sole and absolute discretion.
2. Payment
to TL. In consideration of TL’s services, on or about the
Effective Date Xxxxx shall issue to TL 500,000 shares of restricted common stock
(the “Shares”); provided, however, that if, by the Termination Date, TL has not
located a potential merger partner that is acceptable to Xxxxx (in its sole and
absolute discretion) one-half (50%) of the Shares shall be deemed automatically
cancelled as of the Termination Date without any further act on the part of TL
or Xxxxx and the certificate(s) therefore shall be promptly returned to
Xxxxx.
.
3. Representations
and Warranties by Xxxxx. Xxxxx represents and warrants to TL
as follows (such representations and warranties to survive the completion of the
issuance of the Shares to TL):
(a)
Xxxxx has the full right, power and authority to sell, transfer and deliver the
Shares to TL.
(b)
Upon delivery of the certificates for the Shares, TL will have good, valid and
marketable title thereto free and clear of any restriction, claim, lien, charge,
encumbrance or equity whatsoever except (i) such restrictions on transfer as are
required under federal and applicable state securities laws and (ii) as provided
in this Agreement.
4. Representations
and Warranties by TL. TL represents and warrants to Xxxxx as
follows (such representations and warranties to survive the completion of the
issuance of the Shares to TL):
(a) TL
is acquiring the Shares for its own account and not for the beneficial interest
of any other person and not with a view to or for sale in connection with any
distribution of the Shares.
(b) TL
is aware that the certificates for the Shares shall bear the usual “1933 Act”
restrictive legend. In addition, a certificate for 250,000 of the
Shares shall bear the following additional
legend:
“THE
SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO CANCELLATION UPON THE
OCCURRENCE OF CERTAIN EVENTS, AS SPECIFIED IN THE STOCK ISSUANCE AGREEMENT
BETWEEN THE COMPANY AND TERRACE LANE, LLC DATED AS OF JUNE 18,
2008.”
(c) TL has
been furnished with all information relating to the business, finances and
operations of Xxxxx that it has requested and it and its advisors, if any, have
been afforded the opportunity to ask all questions about Xxxxx as they have in
their discretion deemed advisable.
(d)
TL is aware that its investment in Xxxxx involves a high degree of risk and
acknowledges that it has sought such accounting, legal and tax advice as it has
considered necessary to make an informed investment decision with respect to
such investment.
5.
Miscellaneous
Provisions.
(a)
Each party shall comply with all applicable laws in carrying out its obligations
under this Agreement. Unless otherwise specified herein, each party
shall bear all costs incurred by it in entering into this Agreement and carrying
out its obligations hereunder.
(b) Nothing
contained in this Agreement shall constitute or be construed to create a
partnership, joint venture or agency relationship between the
parties. As a result, except as specifically provided herein, neither
party shall have the right or authority to incur expenses or enter into any
agreement in the name of the other party.
(c) Each
party and their respective officers, owners, agents, representatives, affiliates
and employees (collectively, the “Affiliates”) understand that each of them is
prepared to furnish the other with certain confidential or proprietary written
and oral information in connection with their performance under this
Agreement. Such confidential or proprietary information, together
with all data, reports, notes, summaries and analyses derived therefrom by the
receiving party (the “Recipient”) and/or its Affiliates is referred to herein as
the “Confidential Information.” The term “Confidential Information”
does not include information which (i) is or becomes available to the public
other than as a result of a disclosure by the Recipient or its Affiliates, (ii)
was available to the Recipient on a non-confidential basis prior to its
disclosure to the Recipient by the disclosing party (the “Disclosing Party”) or
its representatives or (iii) becomes available to the Recipient on a
non-confidential basis from a source other than the Disclosing Party or its
representatives. Each party agrees that all Confidential Information
will be held by them and their Affiliates in confidence and will not, without
the prior written consent of the Disclosing Party, be disclosed by the Recipient
or its Affiliates in any manner whatsoever, in whole or in part, and will not be
used by the Recipient or its Affiliates other than in connection their
performance under this Agreement. The parties further agree (i) to
disclose the Confidential Information only to those Affiliates who need to know
the Confidential Information and who will be advised of this Agreement and (ii)
that their Affiliates will act in accordance herewith. No
Confidential Information will be supplied by the Recipient to any other person
unless such person either agrees in writing to be bound by the terms of this
paragraph to the same extent as if a party hereto or enters into other
arrangements satisfactory to the Disclosing Party. The term “person”
as used in this Agreement shall be broadly interpreted to include, without
limitation, any entity or individual. All written Confidential
Information supplied to the Recipient and/or its Affiliates by the Disclosing
Party or the Disclosing Party’s agents, and all copies thereof and extracts
therefrom in the possession of the Recipient or its Affiliates will be returned
to the Disclosing Party or destroyed (at the Disclosing Party’s option) promptly
upon request by the Disclosing Party. Upon request by the Disclosing
Party, the Recipient will also destroy that portion of the Confidential
Information which has been produced by the Recipient or its Affiliates on the
basis of Confidential Information provided by the Disclosing
Party. To the extent any written Confidential Information is not
returned or destroyed, such written Confidential Information, and any oral
Confidential Information, will be held by the Recipient and its Affiliates at
all times subject to the terms of this paragraph.
(d) This
Agreement shall be governed by and interpreted in accordance with the laws of
the State of California as applied to agreements entered into and to be
performed entirely within California between California residents without regard
to the principles of conflict of laws. Service of process in any
civil action relating to or arising out of this Agreement may be accomplished in
any manner provided by law.
(e) This
Agreement may be executed in two or more identical counterparts, all of which
shall be considered one and the same agreement and shall become effective when
counterparts have been signed by each party.
(f) If
any provision of this Agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this Agreement in that jurisdiction or the
validity or enforceability of any provision of this Agreement in any other
jurisdiction.
(g) This
Agreement contains the entire understanding of the parties with respect to the
matters covered herein and supercedes all prior agreements, negotiations and
understandings, written or oral, with respect to such subject
matter. Except as specifically set forth herein, neither party makes
any representation, warranty, covenant or undertaking with respect to such
matters. No provision of this Agreement shall be waived or amended other than by
an instrument in writing signed by the party to be charged with
enforcement. No delay or omission of any party hereto in exercising
any right or remedy hereunder shall constitute a waiver of such right or remedy,
and no waiver as to any obligation shall operate as a continuing waiver or as a
waiver of any subsequent breach.
(h) Any
notices required or permitted to be given under the terms of this Agreement
shall be in writing and sent by U. S. Mail or delivered personally or by
overnight courier or via facsimile (if via facsimile, to be followed within one
(1) business day by an original of the notice document via
overnight courier) and shall be effective (i) five (5) days after
being placed in the mail, if mailed, certified or registered, return receipt
requested, (ii) upon receipt, if delivered personally or (iii) one (1) day after
facsimile transmission or delivery to a courier service for overnight delivery,
in each case properly addressed to the party to receive the same.
(i) This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and permitted assigns. Neither party shall assign
this Agreement or any rights or obligations hereunder without the prior written
consent of the other party (which consent shall not be unreasonably
withheld).
(j) Each
party shall do and perform, or cause to be done and performed, at its expense,
all such further acts and things, and shall execute and deliver all such other
agreements, certificates, instruments and documents, as the other parties may
reasonably request in order to carry out the intent and accomplish the purposes
of this Agreement and the consummation of the transactions contemplated
hereby.
(k) No
provision of this Agreement providing for any specific remedy to a party shall
be construed to limit such party to the specific remedy described, and any other
remedy that would otherwise be available to such party at law or in equity shall
also be available. The parties also intend that the rights and
remedies hereunder be cumulative, so that exercise of any one or more of such
rights or remedies shall not preclude the later or concurrent exercise of any
other rights or remedies.
IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed by
their respective authorized persons as of the Effective Date.
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TERRACE
LANE, LLC
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By:
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Title:
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XXXXX
ENTERPRISES, INC.
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By:
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Title:
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