Exhibit 10.4 Joinder Agreement
THIS JOINDER AGREEMENT (the "Agreement") made as of this October 1, 2004
(the "Effective Date"), by and among and those persons executing this Agreement
whose names and addresses are set forth in the signature pages (collectively,
the "Shareholders), owning all of the issued and outstanding shares of Advance
Nanotech, Inc. ("ADNANO"), a Delaware corporation with its principal address at
000 0xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; Xxxxxx Xxxx ("Xxxx"); Artwork &
Beyond, Inc. ("ARTWORK"), a Colorado corporation, with a principal address at
000-X Xxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx, XX 00000 and Artwork & Beyond, Inc. ("
the Sub"), a Delaware corporation and wholly owned subsidiary of ARTWORK, with a
principal address at 000-X Xxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx, XX 00000.
INTRODUCTION
WHEREAS, the Shareholders and ARTWORK are about to enter into an Exchange
Agreement pursuant to which the Shareholders desire to exchange all of their
shares of the common stock of ADNANO for an aggregate of 70,000,000 shares of
the common stock and a rights agreement for a further 1,910,000,000 shares of
common stock of ARTWORK (hereinafter, the "Exchange") with the result being that
ADNANO will become a wholly owned subsidiary of ARTWORK;
Whereas, as a condition of such Exchange Agreement ARTWORK is obliged to
dispose of its wholly owned subsidiary. (Subsidiary) and be "debt free";
Whereas, Xxxx and ARTWORK have entered into an agreement for Xxxx to
acquire the Sub and for Xxxx to assume all the outstanding liabilities of
Artwork;
Whereas, Xxxx'x acquisition of the Sub and the obligation to assume
outstanding liability is conditioned upon payments made to the Sub by the
Shareholders.
NOW, THEREFORE, in consideration of the premises and mutual covenants set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be bound hereby, do mutually agree as follows:
1. In consideration of Xxxx agreeing to acquire the shares of the Sub and
to assume and pay for existing liabilities of ARTWORK, existing or arising out
of circumstances or events prior to the closing of the Exchanges, any
liabilities of Sub, and any claims arising out of or in connection with the
spin-off of Sub to Xxxx as set forth in the Spin-Off Agreement. The Shareholders
agree to pay the Sub $425,000.000 of which $100,000 shall be paid at closing and
the balance as follows:
30 days after closing $100,000
60 days after closing $100,000
90 days after closing $125,000
If any of the above post-closing amounts are not paid, then ARTWORK will issue
Xxxx 10,000 shares of its common stock per day. If any amount which is overdue
is not paid within thirty days of the date such payment is due, Xxxx shall have
the right to elect to cause the Exchange to be rescinded, in which event, the
Shareholders irrevocably agree to vote their shares of ARTWORK and take such
other actions as may be reasonably necessary to cause such recission, upon which
ADNANO shall be owned by the shareholders, rather than by ARTWORK, and the
shareholders shall have no interest in ARTWORK. In no event however, shall any
prior payments made by shareholders be returned. As used in this agreement the
term "Liabilities" shall be that of the Exchange Agreement under Section 1.1.
2. All notices, requests, demands, or other communications with respect to
this Agreement shall be in writing and shall be (i) sent by facsimile
transmission, (ii) or with respect of notices from the United States sent by the
United States Postal Service, registered or certified mail, return receipt
requested, or (iii) personally delivered by a nationally recognized express
overnight courier service, charges prepaid, to the following addresses (or such
other addresses as the parties may specify from time to time in accordance with
this Section):
(a) If to Shareholders:
or ARTWORK after closing
00xx Xxxxx, 000 0xx Xxxxxx, Xxx Xxxx, 00000-0000
Attention: Advance Nanotech, Inc.
Director of Strategic Transactions
Fax: (000) 000 0000
(b) If to Xxxx or Sub: Xxxxxx Xxxx
000-X Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Fax (000) 000 0000
All such notices shall, when sent in accordance with the preceding sentence, be
deemed to have been given and received on the earliest of (i) the day delivered
to such address by hand, if personally delivered; or sent by facsimile
transmission provided such transmission has been confirmed as sent, (ii) the
fifth (5th) business day following the date deposited with the United States
Postal Service, First Class postage prepaid, or (iii) the next business day
after shipment overnight by recognized courier service.
3. This Agreement shall be construed and enforced in accordance with the
internal laws of the State of New York without giving effect to the principles
of conflicts of law thereof.
4. This Agreement may be executed in two (2) or more counterparts, each of
which shall be deemed an original, but all of which shall together constitute
one and the same Agreement.
5. No failure or delay on the part of the parties hereto to exercise any
right, power, or privilege hereunder or under any instrument executed pursuant
hereto shall operate as a waiver nor shall any single or partial exercise of any
right, power, or privilege preclude any other or further exercise thereof or the
exercise of any other right, power, or privilege. All rights, powers, and
privileges granted herein shall be in addition to other rights and remedies to
which the parties may be entitled at law or in equity.
6. This Agreement, including any exhibits and Disclosure Schedules
attached hereto, sets forth the entire understandings of the parties with
respect to the subject matter hereof, and it incorporates and merges any and all
previous communications, understandings, oral or written as to the subject
matter hereof, and cannot be amended, waived or changed except in writing,
signed by the party to be bound thereby.
.
.
7. To the extent that any provision of this Agreement shall be invalid or
unenforceable, it shall be considered deleted hereof and the remainder of such
provision and of this Agreement shall be unaffected and shall continue in full
force and effect.
IN WITNESS WHEREOF, the parties have executed this agreement as of the
Effective Date.
ARTWORK & BEYOND, INC.
By: _____________________________________
Name:
Title:
ARTWORK & BEYOND, INC.(THE SUB)
By: _____________________________________
Name:
Title:
-------------------------------------
Xxxxxx Xxxx
SHAREHOLDERS:
Core Capital Holdings LLC
No. of shares of ADNANO: 500,000
By: _____________________________________
Name:
Title:
Lyra Holdings Limited
No. of shares of ADNANO: 1,000,000
By: _____________________________________
Name:
Title:
Sterling FCS Limited
No. of shares of ADNANO: 1,500,000
By: _____________________________________
Name:
Title:
CABEL Technology, Inc.
No. of shares of ADNANO: 5,000,000
By: _____________________________________
Name:
Title:
SOFI Ventures Ltd.
No. of shares of ADNANO: 3,000,000
By: _____________________________________
Name:
Title:
Monmay Limited
No. of shares of ADNANO: 3,000,000
By: _____________________________________
Name:
Title:
JSMCL Capital Limited
No. of shares of ADNANO: 4,000,000
By: _____________________________________
Name:
Title:
L Wise Investments Limited
No. of shares of ADNANO: 1,000,000
By: _____________________________________
Name:
Title:
SBI Bioventures Limited
No. of shares of ADNANO: 1,000,000
By: _____________________________________
Name:
Title:
