AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into this 17th of
November, 1997, by and among XXXXXX GROUP, INC., a Delaware corporation
("Xxxxxx"), HIREL HOLDINGS, INC., a Delaware corporation ("Hirel") and HIREL
MARKETING, INC., a Florida corporation ("Marketing").
W I T N E S S E T H:
WHEREAS, Xxxxxx is engaged in negotiations to acquire all of the
issued and outstanding shares of UNITED INFORMATION SYSTEMS, INC., a Florida
corporation, and UIS INDUSTRIAL LTDA, a Brazilian corporation (collectively
hereinafter referred to as "UIS"); and
WHEREAS, Hirel, for itself and its wholly-owned subsidiary,
Marketing, had previously engaged in substantial negotiations with UIS in
connection with the proposed acquisition by Hirel, Marketing or their assigns
of UIS; and
WHEREAS, UIS has advised Hirel that in lieu of proceeding with the
proposed transaction with Hirel, UIS intends to enter into a transaction with,
and be acquired by, Xxxxxx; and
WHEREAS, in exchange for the "Xxxxxx Stock" (as hereinafter defined),
Hirel has agreed to release Xxxxxx and UIS from and against any and all rights
or claims Hirel may have with respect to its proposed acquisition of UIS.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to
be legally bound, hereby agree as follows:
1. Recitals. The foregoing recitals are true and correct and are
incorporated herein by this reference.
2. Xxxxxx Stock. Simultaneous with the closing by Xxxxxx with its
proposed acquisition of UIS, and in exchange for the general release from
Hirel and Marketing pursuant to Section 3 hereof, Xxxxxx shall pay to Hirel
the sum of $80,000, payable by issuance to Hirel of 200,000 shares of the
common stock of Xxxxxx, par value .001 ("Xxxxxx Stock"). The Xxxxxx Stock
shall not be registered as of the date of transfer, but shall be subject to
registration as hereafter provided. Hirel is entitled to registration rights,
including piggyback registration rights, for the Xxxxxx Stock when Xxxxxx
proposes to file a registration statement under the Securities Act of 1933, as
amended, with respect to an offering for its own account of any class of
security (other than in connection with a merger pursuant to a Form S-3) or
for the account of Xxxxxx'x shareholders. Xxxxxx will bear all expenses of
such registration. Xxxxxx agrees to file a registration statement not later
than January 1, 1998. In addition to the foregoing, and in recognition of the
substantial legal fees and costs incurred by Hirel in connection with its
extended negotiations and efforts with UIS, Xxxxxx shall also issue to Xxxxx,
McClosky, Smith, Xxxxxxxx & Xxxxxxx, P.A., counsel for Hirel, on behalf of and
for the benefit of Hirel, 10,000 shares of the common stock of Xxxxxx, which is
agreed to to have a value
of $4,000 (which shares, for all purposes hereunder, shall be included within
the definition of Xxxxxx Stock).
3. Hirel and Marketing General Release and Cooperation. Hirel and
Marketing hereby acknowledge and agree that they have no rights with respect
to the acquisition of UIS. Hirel and Marketing hereby agree to provide to
Xxxxxx all information they have acquired with respect to the assets and
operations of UIS. Hirel and Marketing hereby remise, release, acquit,
satisfy, and forever discharge Xxxxxx and UIS of and from all, and all manner
of action and actions, cause and causes of action, suits, debts, dues, sums of
money, accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages,
judgments, executions, claims and demands whatsoever, in law or in equity,
which Hirel or Marketing ever had, now has, or which any successor or assign
of Hirel or Marketing, hereafter can, shall or may have, against Xxxxxx or
UIS, for, upon or by reason of any matter, cause or thing whatsoever, from the
beginning of the world to the day of these presents.
4. Xxxxxx General Release. Xxxxxx hereby remises, releases, acquits,
satisfies, and forever discharges Hirel and Marketing of and from all, and all
manner of action and actions, cause and causes of action, suits, debts, dues,
sums of money, accounts, reckonings, bonds, bills, specialties, covenants,
contracts, controversies, agreements, promises, variances, trespasses,
damages, judgments, executions, claims and demands whatsoever, in law or in
equity, which Xxxxxx ever had, now has, or which any successor or assign of
Xxxxxx, hereafter can, shall or may have, against Hirel or Marketing, for,
upon or by reason of any matter, cause or thing whatsoever, from the beginning
of the world to the day of these presents.
5. Notices. All notices, demands and other communications given
hereunder shall be in writing and shall be deemed to have been duly given (a)
upon hand delivery thereof, (b) upon telefax and written confirmation of
receipt, (c) upon receipt of any overnight deliveries, or (d) on the third
(3rd) business day after mailing United States registered or certified mail,
return receipt requested, postage prepaid, to the addresses set forth below
their respective signatures, or to such other address or to such other person
as any party shall designate to the others for such purposes in the manner
hereinabove set forth.
6. Further Assurances. The parties will execute and deliver such
further instruments and do such further acts and things as may be required to
carry out the intent and purposes of this Agreement.
7. Successors and Assigns. This Agreement and any amendments hereto
shall be binding upon and, to the extent expressly permitted by the provisions
hereof, shall inure to the benefit of the parties, their respective successors
and assigns.
8. Applicable Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Florida. This Agreement is
intended to be performed in accordance with, and only to the extent permitted
by, all applicable laws, ordinances, rules, and regulations of the
jurisdiction in which the Partnership does business.
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9. Entire Agreement. This Agreement sets forth all (and is intended
by all parties hereto to be an integration of all) of the promises,
agreements, conditions, understandings, warranties and representations among
the parties hereto with respect to the Partnership, the Partnership business
and the Partnership assets, and there are no promises, agreements, conditions,
understandings, warranties or representations, oral or written, express or
implied, except as set forth herein. In the event of any conflict between the
terms of this Agreement and the Shareholders Agreement, the terms of the
Shareholders Agreement shall govern.
10. Counterparts. This Agreement and any amendments hereto may be
executed in counterparts, each of which shall be deemed an original, and such
counterparts shall constitute but one and the same instrument.
11. Gender. Whenever the context requires, any pronoun used herein
may be deemed to mean the corresponding masculine, feminine or neuter in form
thereof and the singular form of any nouns and pronouns herein may be deemed
to mean the corresponding plural and vice versa as the case may require.
12. Arbitration. Any controversy, dispute, disagreement or claim
arising out of or related to any provision of this Agreement, or any alleged
breach of provisions relating thereto, other than with respect to any
provision hereunder for which injunctive or other equitable relief is
specifically provided for hereunder, shall be settled exclusively by binding
arbitration, which shall be conducted in Palm Beach County, Florida before a
panel of three arbitrators in accordance with the Commercial Arbitration Rules
of the American Arbitration Association as in effect from time to time, except
as modified by the agreement of all of the parties to this Agreement. The
arbitrator(s) shall use their best efforts to conduct the arbitration so that
a final result, determination, finding, judgment and/or award (the "Final
Determination") is made or rendered no later than ninety (90) business days
after the delivery of the notice of arbitration nor later than twenty (20)
days following conclusion of the arbitration hearing. The Final Determination
must be signed by the arbitrator. The Final Determination shall be final and
binding on all parties and there shall be no appeal from or reexamination of
the Final Determination, except for fraud, perjury, evident partiality or
misconduct by an arbitrator prejudicing the rights of any party and to correct
manifest clerical errors. The parties to such arbitration may enforce any
Final Determination in any state or federal court having jurisdiction over the
dispute.
13. Remedies. Each of the parties acknowledge and agree that in the
event that a party hereto shall violate any of the restrictions or fail to
perform any of the obligations hereunder, the other parties will be without
adequate remedy at law and will therefore be entitled to enforce such
restrictions or obligations by temporary or permanent injunctive or mandatory
relief obtained in an action or proceeding instituted in any court of
competent jurisdiction without the necessity of proving damages and without
prejudice to any other remedies it may have at law or in equity.
14. No Third Party Beneficiary. This Agreement is made solely and
specifically among and for the benefit of the parties hereto, and their
respective successors and assigns subject to the express provisions hereof
relating to successors and assigns, and no other person shall have any rights,
interest or claims hereunder or be entitled to any benefits under or on
account of this
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Agreement as a third party beneficiary or otherwise; provided, however, that
the provisions of Section 3 hereof shall inure to the benefit of UIS.
15. No Recordation. Neither this Agreement nor any memorandum thereof
shall be recorded amongst the public records of any governmental authority
without the prior written consent of all of the parties hereto.
16. Time of the Essence. Time is of the essence as to all time
periods set forth in this Agreement.
IN WITNESS WHEREOF, the parties hereto have made and entered into
this Agreement as of the date first above written.
XXXXXX GROUP, INC.
By:
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Address: 0000 Xxxxxxxxx Xxxxxxxxx
Xxxxx 000 Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
HIREL HOLDINGS, INC.
By:
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Address: 000 X.X. 00xx Xxxxxxx
Xxxxxxx Xxxxx, XX 00000
Attention: President
HIREL MARKETING, INC.
By:
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Address: 000 X.X. 00xx Xxxxxxx
Xxxxxxx Xxxxx, XX 00000
Attention: President
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