COMMITMENT AGREEMENT
This COMMITMENT AGREEMENT ("Agreement") is made as of November 21, 2005,
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between Private Trading Systems, Inc., a Nevada corporation (the "Company") and
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Xxxxxxx X. Xxxxxxx ("Xxxxxxx"), an individual, or an entity owned and controlled
by Xxxxxxx, as a past and, potentially, future investor in the Company
(collectively, the "Investor").
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BACKGROUND
Investor desires to invest funds as more fully defined in Section 1 in the
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Company provided the Company meets a certain milestone.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual covenants
set forth in this Agreement, the parties hereto hereby agree as follows:
1. CAPITAL INVESTMENT. Within 90 days of the occurrence of the shares
of the Company's common stock being listed on the American Stock Exchange
("AMEX"), the Investor agrees that, upon written notice from the Company and at
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the sole discretion of the Company, Investor will deliver US $20,000,000 worth
of cash and/or shares of Birchington Investments, Ltd., (collectively, the
"Capital Investment") to the Company in exchange for shares of the Company's
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common stock (the "Stock") in number equal to the quotient obtained by dividing
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the aggregate value of the Capital Investment actually contributed to the
Company by the fair market value of the Company's common stock as listed on
AMEX. The fair market value will be determined by determining the average
closing price of the Company's common stock on AMEX for the five consecutive
trading days preceding the date on which the Capital Investment is due to the
Company.
2. INVESTMENT DISCLOSURE. The Investor acknowledges and agrees that
(a) the Investor has had access to and an opportunity to review documents,
records, reports, and information regarding the Company (the "Documents") that
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such Investor may have reasonably requested, and such Investor has completed its
review of such Documents to its satisfaction, and (b) such Investor has had an
opportunity to make inquiries of Company as to its financial condition, and to
make other such inquiries of the Company that such Investor believes are
necessary or appropriate to determine that it desires to enter into this
Agreement, without reliance on or any advice, counsel, or persuasion from the
Company or its agents or advisors.
3. INVESTOR'S REPRESENTATIONS. At the time the Capital Investment is
made, the Investor will, if requested by the Company, deliver to the Company a
standard investment representation letter enabling the Company to secure any and
all necessary exemptions from registration under the applicable securities laws.
4. BINDING NATURE OF AGREEMENT; TRANSFER OF INTEREST. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective heirs, personal representatives, successors, and assigns, except that
Investor shall not assign, grant a security interest in, or otherwise transfer
its rights under this Agreement without the consent of the Company, and any
attempted transfer or grant without such consent shall be void and of no force
or effect.
5. FURTHER ASSURANCES. Each party hereto agrees to do all acts and
things and to make, execute, and deliver such written instruments as shall from
time to time be reasonably required to carry out the terms and provisions of
this Agreement.
6. NO THIRD-PARTY BENEFICIARIES. This Agreement shall not confer any
rights or remedies upon any person other than the parties to this Agreement and
their respective successors and permitted assigns.
7. ENTIRE AGREEMENT; AMENDMENTS. This Agreement, contains the entire
agreement and understanding among the parties hereto with respect to the subject
matter hereof and supersedes all prior and contemporaneous agreements,
understandings, inducements, and conditions, express or implied, oral or
written, of any nature whatsoever with respect to the subject matter hereof. The
express terms hereof control and supersede any course of performance and/or
usage of the trade inconsistent with any of the terms hereof. This Agreement may
not be modified or amended other than by an agreement in writing signed by the
party or parties to be bound.
8. CONTROLLING LAW. This Agreement and all questions relating to its
validity, interpretation, performance, and enforcement shall be governed by and
construed, interpreted, and enforced in accordance with the laws of the State of
Nevada, notwithstanding any Nevada or other conflict-of-law provisions to the
contrary.
9. INDULGENCES, NOT WAIVERS. Neither the failure nor any delay on
the part of a party to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or of any other right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to any
occurrence be construed as a waiver of such right, remedy, power or privilege
with respect to any other occurrence. No waiver shall be effective unless it is
in writing and is signed by the party asserted to have granted such waiver.
10. SECTION HEADINGS. The titles of sections and subsections
contained in this Agreement are for convenience only. They form no part of this
Agreement and they are not to be used in the construction or interpretation of
this Agreement.
11. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of all of the parties reflected hereon as the
signatories. Any photographic or xerographic copy of this Agreement, with all
signatures reproduced on one or more sets of signature pages, shall be
considered for all purposes as if it were an executed counterpart of this
Agreement. Signatures may be given by facsimile or other electronic
transmission, and such signatures shall be fully binding on the party sending
the same.
12. PROVISIONS SEVERABLE. The provisions of this Agreement are
independent of and severable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
Further, if a court of competent jurisdiction determines that any provision of
this Agreement is invalid or unenforceable as written, such court may interpret,
construe, rewrite or revise such provision, to the fullest extent allowed by
law, so as to make it valid and enforceable consistent with the intent of the
parties.
13. CONSTRUCTION. Each party hereto acknowledges that it was
represented by legal counsel (or had the opportunity to be represented by legal
counsel but chose not to be represented) in connection with this Agreement and
that such party and his, her or its counsel have reviewed and revised this
Agreement, or have had an opportunity to do so but chose not to do so, and that
any rule of construction to the effect that ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of this
Agreement or any amendments or any Exhibits or Schedules hereto or thereto.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first above written.
PRIVATE TRADING SYSTEMS, INC. XXXXXXX X. XXXXXXX
/s/ C. Xxxxxx Xxxxxxx /s/ Xxxxxxx X. Xxxxxxx
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C. Xxxxxx Xxxxxxx
Chief Executive Officer
