Exhibit 10.1
STOCK PURCHASE AGREEMENT
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THIS AGREEMENT, made and entered into this 30th day of December, 2004,
by and between THE RESOURCING SOLUTIONS GROUP,INC, a Nevada corporation
(hereinafter called the "Seller"), ASMARA SERVICES I, INC., a North Carolina
corporation (the "Corporation"), and PACEL CORP., a Virginia corporation
(hereinafter called the "Buyer").
WITNESSETH:
WHEREAS, Seller owns, of record and beneficially, all of the issued and
outstanding shares of stock of Corporation; and
WHEREAS, the Seller desires to sell to the Buyer, and the latter
desires to purchase from Seller, all of the shares of stock of Corporation
issued and outstanding at closing; and
WHEREAS, the parties desire to stipulate all of the terms, conditions
and covenants of such purchase and sale;
NOW, THEREFORE, in consideration of the premises, the representations,
warranties and mutual covenants contained herein, IT IS AGREED:
ARTICLE I
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REPRESENTATIONS AND WARRANTIES OF SELLER
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The Seller represents, warrants, covenants and agrees that the
following are true and correct on the date hereof and will continue true and
correct on each day through the closing date as though made as and of such date:
1.1 Organization and Qualification. The Corporation is duly
organized and existing under the laws of the state of North Carolina and has all
necessary legal and corporate authority required to own, lease and operate its
assets and properties and carry on its business at and in the place(s) where
such business is now conducted and such properties are now owned, leased or
operated, and it is duly qualified to do business and is in good standing in
every jurisdiction in which its ownership or leasing of real property or the
nature of the business conducted by it makes such qualification necessary.
1.2 Capital Stock. The authorized capital stock of the Corporation
consists solely of 100,000 shares of no par value common stock of which 100
shares are issued and outstanding. All of the issued and outstanding shares are
duly and validly issued, fully paid and non assessable and were not issued in
violation of any preemptive or similar right.
1.3 Options, Etc. There are no outstanding options, warrants,
rights, contracts or agreements of any kind for the issuance (upon conversion,
exercise or otherwise) or sale of any additional shares of capital stock of the
Corporation or for the issuance or sale of any other securities or obligations
of the Corporation or for the purchase from the Corporation of any of its
shares. Seller has ownership and control, both legally and beneficially, of all
of the issued and outstanding capital stock of the Corporation and no other
person or entity, including but not limited to Engineered Structural Systems,
Inc., has any ownership right or claim with respect thereto.
1.4 Stockholders. Seller owns of record and beneficially 100
shares of the issued and outstanding capital stock of the Corporation, which
constitutes one hundred percent (100%) of the outstanding capital stock of the
Corporation and all said shares are owned by Seller free and clear of any
pledge, lien, encumbrance or agreement of any kind restricting transfer or sale.
Seller is not subject to any restriction restricting the transfer contemplated
by this Agreement; and Seller has valid and marketable title to the shares held
by him, with full legal right, power and authority to execute, deliver and
perform his obligations under this Agreement and to transfer and deliver his
shares of the Corporation to Buyer in the manner provided by this Agreement.
1.5 Affiliates. The Corporation owns 99% of N.C.S. LLC a North
Carolina Limited Liability Company.
1.6 Liabilities. Except as shown on the Balance Sheets, the
Corporation has no liability or obligation, absolute or contingent, known or
unknown, which is not reflected, reserved against or provided for to the full
extent thereof on the Balance Sheets. There are no wages, bonuses, commissions,
loans or other amounts due or payable by the Corporation to Seller or any
affiliate of Seller or to other employees of the Corporation.
1.7 Taxes. The Federal income tax returns of the Corporation have
been filed or will be filed for all periods to and including December 2003, and
all taxes shown on said returns have been paid or provided for in the latest
Balance Sheet. The Corporation is not delinquent in the filing of any federal or
any state or local tax returns or reports and all taxes shown on said returns or
due for any period prior to closing, including returns not yet filed, have been
paid or accrued for in the latest Balance Sheet; and, with regard to such
returns or reports, the examination of which has been concluded by the
appropriate governmental authority, all assessments and deficiencies or
increases proposed have either been paid or are included in the liabilities or
accruals for taxes provided for in the latest Balance Sheet. Any and all
assessments and deficiencies or increases proposed as a result of any and all
examinations or audits of any returns concluded by any taxing authority have
either been paid or are included in the liabilities or accruals for taxes
provided for in the latest Balance Sheet.
1.8 Litigation and Proceedings. There are no actions, suits,
proceedings or investigations pending or threatened against the Corporation at
law or in equity or before any governmental department, commission, board,
agency or instrumentality, and there have been no occurrences prior to Closing
which could result in any action, suit, proceeding or investigation. The
Corporation is not
in default with respect to or bound by any order, injunction or decree of any
court, governmental department, commission, board, agency or instrumentality.
Seller has no knowledge or reasonable basis for knowledge of any threatened
actions, suits, proceedings or investigations pending against the Corporation at
law or in equity or before any governmental department, commission, board,
agency or instrumentality.
1.9 Adverse Agreements. Neither the Corporation nor the Seller is
a party to any contract or agreement which will survive the Closing, nor is the
Corporation subject to any charter provision or other legal restriction that
prevents or restricts complete fulfillment of all the terms and conditions of
this Agreement or compliance herewith or which materially and adversely affects
the business, property, assets or condition, financial or otherwise, of the
Corporation.
1.10 Absence of Certain Changes or Events. Since the latest Balance
Sheet Date, the Corporation has not (i) borrowed or agreed to borrow any funds
or incurred, or become subject to, any obligation or liability, absolute or
contingent; (ii) paid any obligation or liability (absolute or contingent) other
than current liabilities reflected as shown in the latest Balance Sheet provided
pursuant to this Agreement and current liabilities incurred since that date in
the ordinary course of business; (iii) mortgaged, pledged or subjected to lien,
charge or encumbrance any of its assets, real or personal, tangible or
intangible, or canceled any of its debts or claims, except in each case, in the
ordinary course of business; (iv) suffered any losses or waived or released any
rights of value, (v) issued or delivered or contracted to issue or deliver any
stocks, bonds or other corporate securities, or granted or agreed to grant any
options (including employee stock options) or warrants calling for the issue
thereof; (vi) increased, decreased or reclassified its capital stock or amended
its Articles or Bylaws; (vii) declared or made or agreed to declare or make any
payment of dividends or distributions of any assets of any kind whatsoever to
stockholders (except as herein specifically set forth), or redeemed or purchased
or agreed to purchase or redeem, any shares of its stock; (viii) made any
accrual or arrangement for a payment of bonuses or special compensation of any
kind or any severance or termination pay to any present or former officer or
employee; (ix) declared any compensation payable or to become payable to any of
its officers or employees or adopted any profit sharing, bonus, deferred
compensation, insurance provision, retirement or any other employee benefit
plan, payment or arrangement for or with any such officers or employees; or (x)
entered into any other transaction, except as contemplated by this Agreement.
1.11 Scheduled Property. The Corporation does not own or lease any
real or tangible personal property. The Corporation has and on the closing date
will have good and marketable title to all of its properties and assets
reflected in the Closing Financial Statements free and clear of all defects,
liens, encumbrances, claims or rights of third parties.
1.12 Material Change. Since the Balance Sheet Date, there has not
been:
(a) Any change in the Corporation's business or in its
condition, financial or otherwise, other than changes in the ordinary course of
business, none of which is materially adverse;
(b) Any damage, destruction or loss, whether or not
covered by insurance, materially and adversely affecting the ability of the
Corporation to conduct its business; or any other damage, destruction or loss of
any material nature;
(c) Any labor dispute or any event or condition of any
character materially and adversely affecting the business of the Corporation;
(d) Any event or condition of any character, materially
and adversely affecting the Corporation's business, prospects or state
unemployment tax rate.
1.13 Contracts, Leases, Etc. The Corporation has no existing
contracts (whether written or oral) of any nature except through its subsidiary
N.C.S. LLC which has a contractual right to provide Workers Compensation
Insurance through the Phoenix Fund. The Corporation has performed in all
material respects all obligations required to be performed by it and is not in
default in any material respect, under any previous agreement, obligation or
other commitment (oral or written), leases or license agreements or franchise
agreements to which it was a party or to which it was bound. The Corporation is
not a guarantor or secondarily liable for the payment of any debt, liability or
dividend.
1.14 Compliance With Laws. The Corporation has complied with all
laws, regulations, ordinances and orders applicable to its businesses and
properties, and no notice has been given to the Corporation claiming any
violation thereof.
1.15 Conduct of Business. Pending closing and except as may first
be approved by Buyer in writing, or as is otherwise permitted by this Agreement.
(a) The business of the Corporation will be conducted
only in its ordinary course and the character of such business shall not be
changed nor any different business undertaken;
(b) No material contract, commitment or understanding of
any kind will be entered into by and on behalf of the Corporation;
(c) No material business decision or action shall be made
or taken;
(d) The Corporation and the Seller will duly comply and
act in accordance with the provisions of the representations and warranties
contained in this Agreement.
(e) Consents. No consents of any person will be required
in order effectively to preserve to the Corporation the rights and benefits it
is currently entitled to after closing or in order to close the transactions
contemplated hereby.
1.16 Governmental Authorization. The Corporation has all licenses,
franchises, permits and other governmental authorizations that are required in
connection with its business as conducted on the date hereof.
1.17 Disclosure. No statement of fact by Seller in this Agreement
or in any statement furnished or to be furnished to Buyer pursuant hereto or in
connection with any transaction contemplated hereby contains or will contain any
untrue statement of a material fact or will omit to state a material fact
necessary to make the statements herein or therein not misleading.
1.18 Stock. Seller hereby represents and warrants that the original
certificates evidencing the issued and outstanding shares of Corporation have
been transferred in accordance with the laws of North Carolina to buyer.
ARTICLE II
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REPRESENTATIONS AND WARRANTIES OF BUYER
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Buyer represents, warrants, covenants and agrees that the following are
true and correct on the date hereof and will continue true and correct on the
closing date as though made as and of such date:
2.1 Status. Buyer is a corporation, not a minor, not in the
military service and is compis mentis.
2.2 Restrictions. Buyer is not subject to any restrictions
contained in any agreement or decree which would prevent the consummation of the
transactions contemplated by this Agreement, nor will such transactions result
in the breach of any term or provision or constitute a default under any such
document.
2.3 Authorization. This Agreement has been duly approved by Buyer.
ARTICLE III
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SALE OF STOCK
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Subject to and in reliance upon the representations, warranties,
covenants and agreements herein contained and subject to the terms and
conditions herein stated:
3.1 Agreement to Sell. Seller agrees to sell, transfer and deliver
to Buyer on the closing date all of the issued and outstanding capital stock of
the Corporation (the "Stock"), and Buyer agrees to purchase from Seller on the
closing date all of said stock for a total purchase price equal Three Hundred
Thousand and no/100ths DOLLARS ($300,000.00).
3.2 Payment of Purchase Price. The purchase price shall be payable
in cash at Closing.
3.3 Closing. The closing of the sale provided by this agreement
shall be at the office of Seller on the 30th day of December, 2004 (the "Closing
Date"), unless accelerated or extended by mutual agreement of the parties. If
the parties agree, the transaction may be closed by mail. At the closing Seller
shall deliver to Buyer all of the issued and outstanding shares of stock of the
Corporation duly endorsed for transfer with signatures notarized or accompanied
by duly executed stock powers with signatures notarized, in exchange for the
payment and delivery to Seller of the purchase price. In addition, (a) Seller
shall deliver to Buyer (i) the minute books, stock books, stock transfer books,
corporate seal, files, ledgers, books of account, contracts and other valuable
papers and assets of the Corporation, (ii) the written resignations of each
director and officer of the Corporation, (iii) all policies of insurance issued
to or for the benefit of the Corporation currently in effect, and all policies
expired but covering claims not barred by any Statute of Limitations, and (iv) a
Certificate of Good Standing of the Corporation from the State of North
Carolina, dated not more than ten (10) days prior to the closing; and (b) the
parties shall deliver or cause to be delivered any other certificates, opinions
or other documents required as provided for under this Agreement.
3.4 Deposits and Closing & Expenses. Seller shall have the right
to the refund of any deposits (e.g., for utilities, leaseholds, etc.). Each
party shall be responsible for their own attorney's fees and other costs in
connection with the closing of the transaction contemplated by this Agreement.
3.5 Certain Assets of the Corporation. Notwithstanding anything to
the contrary contained herein or appearing on any Balance Sheets or Income
Statements attached hereto, all of the assets of the Corporation, after payment
of all liabilities of the Corporation, shall be distributed to Seller prior to
closing and shall become the property of Seller, it being the intention of the
parties that the Buyer receive the Corporation with only the Retained Assets and
no current or long-term liabilities of any kind.
3.6 Leases, Contracts, and Employees. Seller shall at or before
closing terminate or assume and have the Corporation released from all liability
under each lease covering real property leased by the Corporation; and Buyer and
the Corporation are hereby indemnified and held harmless by Seller of and from
any liability thereon in accordance with the indemnification provisions
hereinafter set forth in this Agreement. Seller shall at or before closing
terminate or assume and have the Corporation released from all liability under
any and all contracts, including but not limited to equipment leases, licenses
and franchise agreements to which the Corporation is a party; and Buyer and the
Corporation shall be indemnified by Seller of and from any liability thereon in
accordance with the indemnification provisions hereinafter set forth in this
Agreement.
ARTICLE IV
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INDEMNIFICATIONS AND RELEASE
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4.1 Indemnification of Buyer.
(a) Agreement to Indemnify. Seller agrees to indemnify
and hold harmless the Buyer and, after the closing date, the Corporation,
against any and all losses, claims, damages or liabilities (including the
reasonable cost of investigating or defending any alleged losses, claims,
damages or liabilities and reasonable counsel fees incurred in connection
therewith) to which the Buyer or the Corporation may become subject, insofar as
such losses, claims, damages, liabilities or actions arise out of or are based
upon (i) any liability of the Corporation which arose on or before or is based
upon events or transactions occurring on or before the closing date; (ii) any
commitment, contract, indebtedness, liability or obligation of any nature of the
Corporation (including without limitation any liability for Federal, state or
local income or property taxes) as a result of transactions or occurrences prior
to the closing date; or (iii) any misrepresentation, breach of warranty or
non-fulfillment of any covenant or agreement on the part of the Seller under or
in connection with this Agreement, or (iv) any real property lease, contract,
equipment lease, license, franchise agreement, employee or employment matter
which Seller is required to terminate or to have the Corporation terminate or
which Seller is required to assume.
(b) Notice of Claims. In case any claim is made, any suit
or action commenced, or notice given of any administrative or other proceeding
against the Buyer or the Corporation or their successors in respect of which
indemnity may be recovered pursuant to this Paragraph 4.1 (a "Covered Claim"),
the following provisions shall apply:
(i) The Buyer shall promptly give written notice
thereof to the Seller (for the purposes of this Paragraph 4.1(b) references to
the Buyer include the Buyer, the Corporation and their respective successors)
and within twenty (20) days after the Buyer has given such notice, the Seller
may give the Buyer written notice of its election to participate in (or if the
Buyer does not desire to defend, to conduct) the defense thereof at its own
expense (but if the Buyer shall determine to defend it shall at all times have
the right to conduct and control the defense thereof);
(ii) Any covered claim may be settled,
compromised or satisfied by the Buyer (whether or not the Seller has elected to
participate in the defense thereof) after notice thereof by the Buyer to the
Seller of the settlement terms and the Buyer's intent to effect such settlement,
unless within ten (10) days after such notice the Seller notifies the Buyer of
his election to assume (or if it is then participating in the defense thereof,
to continue) the defense of such covered claim and posts a bond or cash
collateral with the Buyer in the full amount being claimed;
(iii) Any such settlement, compromise or
satisfaction made by the Buyer, or any final judgment or decree entered in any
Covered Claim defended only by the Seller (or with respect to which the Seller
participated in the defense, or with respect to which none of the parties
hereto participated in the defense) in accordance with this Paragraph 4.1 (b)
shall be obligatory and binding upon the Seller as fully as if it alone had
assumed the defense thereof and a final judgment or decree had been entered in
such suit or action or with regard to such claim by a court of competent
jurisdiction for the amount of such settlement, compromise, satisfaction,
judgment or decree; and the Buyer shall be entitled to indemnification to the
extent provided in this Paragraph 4.1 with respect to such settlement,
compromise, satisfaction, judgment or decree, irrespective of the nature of
claims or liabilities respecting any of the foregoing, or the manner in which
any such claims or liabilities respecting any of the foregoing, or the manner in
which any such claims or liabilities arise whether the same are meritorious or
not, whether they are heretofore or hereafter incurred, and whether any such
losses, costs, expenses, damages or liabilities are incurred or suffered by the
Buyer as a result of any investigation, proceeding, settlement or otherwise. Any
cash collateral or bond posted by Seller with the Buyer may be used to satisfy
any claim which is finally adjudicated.
4.2 Release. Seller does hereby agree that, as of the closing
date, Seller hereby releases and holds Buyer and the Corporation harmless from
any and all liabilities and claims which Seller may have against Buyer and/or
the Corporation except (a) liabilities and claims arising out of this Agreement,
including, but not limited to, the obligation of Buyer to pay the purchase price
of the Stock to Seller in accordance with the provisions of Section 3.2 hereof,
and (b) any tax refund flowing to Seller through the Corporation for any period
prior to the closing date.
ARTICLE V
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CONDITIONS TO CLOSING
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5.1 Conditions of Buyer's Obligations. The obligations of Buyer
hereunder are subject to the satisfaction or the waiver thereof by Buyer in its
absolute discretion, of each of the following conditions on or before closing
date:
(a) Inspection of Books and Records. Buyer shall have
inspected and reviewed the books and records of the Corporation and any other
information requested by Buyer, and Buyer, in its sole discretion, shall not
have any concerns about the same. Seller will, immediately upon execution of
this Agreement, make such books and records available to Buyer and Buyer's
representatives for inspection and copying, and such books and records shall
include, but shall not be limited to all corporate state and federal tax returns
for the past three (3) years, and all invoices, purchase invoices, sales ledgers
and invoice books for the past three (3) years.
(b) Material Error, Access, Etc. Buyer shall not have
discovered any material error, misstatement or omission in any representations
or warranties made herein, and all of the terms and conditions in this Agreement
to be complied with and performed by Seller on or before closing date shall have
been complied with and performed. It is agreed that the Corporation shall give
to the Buyer, and to Buyer's counsel, accountants and other representatives,
full access, during normal business hours throughout the period from and after
the date hereof until closing, to its
books, contracts, commitments and records pertaining thereto, and shall furnish
the Buyer during such period with all such information concerning the
Corporation's affairs as Buyer may reasonably request. The foregoing shall not
affect Buyer's right to rescind this Agreement for any material
misrepresentations made herein nor shall it affect Seller' liability after
closing, for any misrepresentation or omission in any of the warranties and
representations made herein.
(c) Adverse Development. There shall not have been any
development in the Corporation's business or tax status since the Balance Sheet
Date, which would have a materially adverse effect on the value thereof. (d)
Delivery of Shares. Seller shall deliver all of the Stock, in accordance with
the terms hereof, to Buyer at closing.
5.2 Conditions of Seller's Obligations. The obligations of Seller
hereunder are subject to Seller not having discovered any material error,
misstatement or omission in any representations or warranties made herein, and
all of the terms and conditions in this agreement to be complied with and
performed by Buyer on or before the closing date shall have been complied with
and performed.
5.3 Failure to Satisfy Condition. If any condition is not
satisfied or waived on or prior to the closing date, the party whose obligations
are subject to such satisfaction or waiver may at its or their option, terminate
this Agreement without further obligation. If this Agreement is so terminated,
then neither party shall be liable to the other for any costs, fees or expenses.
ARTICLE VI
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MISCELLANEOUS
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6.1 Governing Law. This agreement shall be construed and enforced
under the laws of the State of North Carolina.
6.2 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the Buyer, its heirs, personal representatives,
successors and assigns, and Seller, its heirs, personal representatives,
successors and assigns. Without limiting the foregoing, the Corporation's rights
hereunder may be enforced in its own name.
6.3 Legal and Accounting Fees. Unless the parties otherwise agree,
since this Agreement is for the sale by Seller of its stock in the Corporation,
the Corporation shall not be charged with any legal or accounting fees for
services rendered relating to this Agreement, negotiation therefor, or
consummation thereof.
6.4 Notice. All notices necessary or desired to be given hereunder
shall be in writing and sent by certified or registered mail, postage prepaid,
if for Seller addressed to:
Xxxx Xxxxxxxxx
00000 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
and if for Buyer addressed to it:
Xxxx Xxxxxxxxx
00000 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
or to such other address as any of the parties hereto may designate by certified
mail, as above provided and will be deemed given when deposited in the United
States mail.
6.5 Representations and Warranties to Survive Closing. All
representations, warranties and agreements made by any party hereto in this
Agreement or pursuant hereto shall survive the closing date of this Agreement,
and any investigation made by or on behalf of any party. All statements
contained herein or in any certificate, exhibit, list or other document shall be
deemed to be representations and warranties.
6.6 Headings. The various headings used in this Agreement are for
convenience only and shall not be used in interpreting the text of the
Agreement.
6.7 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, and all of which
together shall constitute together one and the same instrument. A faxed
signature shall, for the purposes of this Agreement, be deemed an original.
IN WITNESS WHEREOF, the undersigned have executed this Stock Purchase
Agreement on the day and year first above written.
SELLER:
THE RESOURCING SOLUTIONS GROUP, INC
By:/s/ XXXX X. XXXXXXXXX
--------------------------------
Xxxx X. Xxxxxxxxx, President
BUYER:
PACEL CORP.
By:/s/ XXXX X. XXXXXXXXX
--------------------------------
Xxxx X. Xxxxxxxxx, President
ASMARA SERVICES I, INC.
By:/s/ XXXX X. XXXXXXXXX
--------------------------------
Xxxx X. Xxxxxxxxx, President
Exhibit 2.2 to
Securities Purchase Agreement
PROMISSORY NOTE
$300,000.00 DECEMBER 30, 2004
FOR VALUE RECEIVED, the undersigned, PACEL CORP, INC ("Maker"), a Virginia
corporation, hereby promises to pay to the order of The Resourcing Solutions
Group, Inc, a Nevada company, the aggregate, principal sum of $300,000, together
with interest on the unpaid principal balance, in accordance with the schedule
attached hereto and incorporated herein.
1. The principal and interest indebtedness evidenced hereby shall be a payable
in accordance with Schedule 1 attached hereto and made a part hereof.
2. All payments on account of the indebtedness represented by this Note shall be
applied first to accrued and unpaid interest and the remainder to principal.
This Note may be prepaid by Maker at any time, in whole or in part, without
premium or penalty There shall be no default under paragraph 1(a) unless the
required amount is not received by the holder of this Note by the tenth day of
the month.
3. Payments shall be made to The Resourcing Solutions Group, Inc, care of Xxxx
Xxxxxxxxx, 00000 Xxxxxxxxxx Xxxxx, Xxxxxxxxx XX 00000, or such other address as
the holder of this Note may designate in writing.
4. All parties to this Note jointly and severally waive presentment for payment,
demand, protest, notice of protest and notice of dishonor
5. In the event of a default by Maker under this Note, the holder of this Note
shall have the following rights: (a) to enforce one or more remedies available
to it under law, equity or hereunder, and such action shall not operate to estop
or prevent it from pursuing any further remedy which it may have; (b) to declare
the entire unpaid balance due at any time; (c) to impose a late charge equal to
five percent (5%) of the unpaid amount if any payment to be made hereunder is
not received in full by the due date; and (d) to increase the rate of interest
applicable to the entire unpaid principal balance of this Note by an increment
of an additional five percent (5%) per annum, unless such increase exceeds the
maximum increase permitted by applicable law in such circumstances, in which
event said rate of interest shall be increased by that increment which is the
maximum increase permitted by law in such circumstances.
6. This Promissory Note shall automatically terminate and be cancelled upon the
occurrence of any of the following events: (i) failure of holder or its assigns
to pay each installment of the Loans as required by the terms of the Loans
described in Schedule 1 attached hereto, or a default under the terms of the
Loans; and (ii) a breach of the Stock Purchase Agreement (collectively referred
to as an "Event of Default"). Maker shall provide written notice of any such
Event of Default to holder, and this promissory Note shall terminate and be
cancelled as of the date of such notice. Maker shall have no further obligations
whatsoever under this Promissory Note after providing the notice described
herein.
7. The acceptance by the holder of this Note of any partial payment made
hereunder after the due date of any installment under this Note shall not
establish a custom or waive any rights of said holder to enforce prompt payment
hereof. Demand, presentment for payment, protest, and notice of nonpayment and
protest are hereby waived by the undersigned.
8. By exercising or failing to exercise any of its rights, options or elections
hereunder, the holder of this Note shall not be deemed to have waived any breach
or default on the part of Maker or to have released Maker from any of its
obligations hereunder, unless such waiver or release is in writing and signed by
the holder of this Note. In addition, the waiver by the holder of this Note of
any breach hereof or default in payment of any indebtedness secured hereby shall
not be deemed to constitute a waiver of any succeeding breach or default.
9. All notices, demands, and other communications given hereunder shall be in
writing and shall be sent by overnight courier, to such address as the holder of
this Note or Maker shall have furnished the other in writing, and shall be
deemed to have been given at the time received.
10. All agreements, conditions, and provisions of this Note shall apply to and
bind the successors and assigns of all parties hereto. Every provision hereof is
intended to be severable. If any provision of this Note is determined by a court
of competent jurisdiction to be illegal or invalid for any reason whatsoever,
such illegality or invalidity shall not affect the balance of the provisions
hereof which shall remain binding and enforceable.
11. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NORTH CAROLINA. MAKER HEREBY IRREVOCABLY CONSENTS TO
JURISDICTION IN THE STATE OF NORTH CAROLINA AND VENUE IN THE COUNTY OF
MECKLENBERG FOR SUCH PURPOSES AND SERVICE OF PROCESS BY U.S. MAIL AND WAIVES ANY
AND ALL RIGHTS TO CONTEST SUCH JURISDICTION AND VENUE FOR THE PURPOSE OF
ENFORCING THIS NOTE AND ALL RELATED DOCUMENTS DELIVERED IN CONNECTION THEREWITH.
PACEL CORP.
/s/ XXXX X. XXXXXXXXX
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Xxxx X. Xxxxxxxxx
Its: President