Exhibit 10.9
TERMINATION AND SETTLEMENT AGREEMENT
This Termination and Settlement Agreement (the "Agreement") is entered
into as of the 6th day of September 2002, by and among Xxxx X. Xxxxxxx and Putun
LLC (collectively "Xxxxxxx") with an address at X.X. Xxx 00000, Xxxxxxxxx, XX
00000; Hunapu Inc.; ("Hunapu") a Nevada corporation with its principal place of
business at 0000 Xxxx Xxxxxxx Xxxxx Xxxxxxx, Xxxxxxxxx, XX 00000; Critical
Acquisition Corp ("CAC") a Delaware corporation with its principal place of
business address x/x Xxxxxx Inc. at 0000 Xxxx Xxxxxxx Xxxxx Xxxxxxx, Xxxxxxxxx,
XX 00000; Critical Home Care, Inc. ("Critical"), a Delaware corporation with its
principal place of business at 000 Xxxxxxx Xxxx, Xxxxxxxxx Xxxxxx, X.X. 00000,
Xxxxx X. Xxxxxx and Xxxxxxx X. Xxxxx, shareholders of Critical ("Critical
Shareholders"), and Snow Xxxxxx Xxxxxx P.C. ("SBK"), a New York professional
corporation with its principal place of business at 000 Xxxxx Xxxxxx, Xxx Xxxx,
XX 00000.
Whereas, Xxxxxxx, Hunapu, CAC, Critical, Critical Shareholders and SBK
entered into a Restated Merger Agreement and Plan of Reorganization dated as of
July 12, 2002 (the "Merger Agreement") that contemplated Hunapu Inc.'s
acquisition of Critical conditioned upon, among other things, Critical having a
net worth of at least $1 million which has not been satisfied; and
WHEREAS, each of the partners believes it will be mutually beneficial for
all parties to terminate the Merger Agreement and all other agreements
concerning the proposed Merger on the terms and conditions contained herein.
NOW THEREFORE, in consideration of the covenants, premises,
representations and warranties as set forth herein, and other good and valuable
consideration, the receipt and adequacy is hereby acknowledged, it is agreed as
follows:
1. Termination of Merger Agreement.
a. This Agreement supersedes the Merger Agreement and all other
agreements among the parties concerning the subject matter related
hereto. The Merger Agreement is terminated in its entirety and
hereby made null and void and of no further force or effect and no
party to the Merger Agreement shall have any rights, obligations or
liabilities under the Merger Agreement.
b. The Merger Agreement is deemed terminated by Mutual Consent pursuant
to Section 7.1(a) of the Merger Agreement except as stated in this
Agreement.
c. Each party to the Merger Agreement hereby waives any liability for
any for any breach of the Merger Agreement pursuant to its
termination and as set forth in Section 10 herein releases and holds
harmless the other parties from any liability.
d. As set forth is Section 7.2 of the Merger Agreement and incorporated
by reference herein, except as modified herein, the provisions of
Sections 5.5, 5.6 and Article 8,
and Section 5.12, as modified herein, shall remain in full force and
effect and survive termination of the Merger Agreement.
2. Withdrawal of Hunapu Registration Statement.
Hunapu Inc. hereby covenants and agrees to file, as promptly as possible,
but in no case later than the third business day following the execution of this
Agreement with the Securities an Exchange Commission (the "SEC") a withdrawal of
Post-Effective Amendment No. 1 to Registration Statement No. 333-45774. Critical
shall assist Hunapu in such withdrawal by providing Hunapu with such information
and documents as Hunapu may reasonably request.
3. Critical Registration Statement.
Critical hereby covenants and agrees to (i) file, as promptly as possible
but in no case later than the first registration statement filed by Critical
with the Securities and Exchange Commission (the "SEC") (other than a
Registration Statement on Form S-4 or S-8), a registration statement with the
SEC registering for resale the Shares, under the Securities Act of 1933, as
amended, all of the Shares, (ii) use its best efforts to cause such registration
of the Shares to become effective and (iii) use its best efforts to cause such
registration of the Shares to remain effective through the third anniversary of
the date of this Agreement. Critical shall register the Shares on Form S-3 or
such other form as Critical, in its sole discretion, shall so choose.
4. Consideration to be paid to Xxxxxxx, SBK and/or their affiliates.
Xxxxxxx, SBK and all of their directors, officers, affiliates, agents,
employees, attorneys, subsidiaries, insurer and representatives, covenant and
agree that the sole consideration to be paid to all parties pursuant to this
Agreement, or otherwise, is as follows:
x. Xxxxxxx, SBK and/or their affiliates shall purchase for nominal
consideration an aggregate of 500,000 shares of Critical Common
Stock (the "Shares"). It is hereby agreed, however, that if Critical
is not the entity which seeks to raise financing and ultimately
become a public entity, the recipients of the Shares shall be
entitled to exchange the Shares for such subsequent related
successor entity that gets funded.
x. Xxxxxxx and SBK hereby agree that the Shares shall be divided among
themselves and their affiliates; however, Critical shall use its
best efforts to obtain waivers from any other existing shareholders
of Hunapu unrelated to Xxxxxxx and SBK as to the Shares. In the
event that Critical is unable to obtain such waivers, it is hereby
agreed that the Indemnity of Critical set forth in Section 11 herein
shall specifically include any and all claims made by any third
party to the Shares, including, but not limited to, any other
Shareholders of Hunapu.
c. In consideration of the payment of $30,000 to SBK, in six equal
payments of $5,000, all indebtedness of Hunapu to SBK from the
beginning of the world to the date hereof shall be discharged upon
payment in full to SBK. The first payment of $5,000
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shall be made upon execution of this agreement and then on the first
business day of each of the next 5 months.
5. Covenants and Restrictions.
a. Hunapu, CAC, Xxxxxxx and SBK (collectively, the "Disclosing Party")
hereby covenant and agree that they will not at any time subsequent
to the date hereof, directly or indirectly, reveal, divulge, use
(whether or not for their own profit) or make known to any person or
entity any Confidential Information (as hereinafter defined) made
known to the Disclosing Party or of which the Disclosing Party has
become aware, regardless of whether developed, prepared, devised or
otherwise created in whole or in part by the efforts of the
Disclosing Party and except to the extent so authorized in writing
by Critical or except as required by law. For purposes of this
Agreement, the term "Confidential Information" shall mean (i) the
existence and terms of this Agreement and the nature of the
relationship contemplated hereby, (ii) any technical, scientific or
engineering information relating to the products and/or services of
any party hereto or any such party's affiliates, including any
entity with whom a party hereto has entered into an acquisition
agreement or other binding or non-binding agreement related to the
acquisition of a third party by a party hereto (each, a "Party" and,
collectively, the "Parties"), (iii) information relating to any
customer of any of the Parties, including without limitation, the
names, addresses, telephone numbers and sales records of, or
pertaining to any such customer, (iv) price lists, methods of
operation and other information pertaining to any of the Parties and
which any such Party, in its sole discretion, regards as
confidential and in the nature of trade secrets, and (v) anything
else that the Disclosing Party has knowledge of by virtue of the
Merger Agreement, that is not publicly known as of the date of this
Agreement. Notwithstanding anything contained herein to the
contrary, Confidential Information as used herein shall not include
that which (x) was in the public domain prior to receipt by the
Disclosing Party, (y) subsequently becomes known to the Disclosing
Party as a result of disclosure by third parties not in the course
of this Agreement and as a matter of right and without restriction
on disclosure, or (z) subsequently comes into the public domain in
the same context as the disclosure by a Party through no fault of
the Disclosing Party.
b. The Disclosing Party further covenants and agrees that upon the
execution of this Agreement, it has delivered to Critical (and has
not retained any copies of) all tangible embodiments of all
Confidential Information in possession, including, without
limitation, any notes or files related to the foregoing.
Furthermore, the Disclosing Party will retain any and all intangible
Confidential Information in trust for the sole benefit of Critical
and the applicable company and the other parties to this Agreement,
and will not divulge or deliver or show any of such Confidential
Information to any unauthorized person and will not make use of or
in any manner seek to turn to account any of such Confidential
Information in an independent business however unrelated to the
business of Critical and any other company.
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c. If the Disclosing Party becomes legally compelled to disclose any
Confidential Information, the Disclosing Party shall provide prompt
written notice of such legal compulsion to Critical so that Critical
and/or any other applicable company may seek a protective order or
other remedy or waive compliance with this Agreement. The Disclosing
Party shall cooperate (without any cost or expense to the Disclosing
Party) with Critical and/or any such other company in obtaining such
protective order or other remedy upon Critical's or such other
company's request. If, in the absence of a protective order or the
receipt of a waiver hereunder, the Disclosing Party is nonetheless
compelled to disclose Confidential Information to or at the
direction of any tribunal or else stand liable for contempt or
suffer other censure or significant penalty, the Disclosing Party
may disclose such specifically requested Confidential Information to
or at the direction of such tribunal.
d. The Disclosing Party agrees that any breach of this Section 5 will
cause Critical and/or any other Company substantial and irreparable
damages that would not be quantifiable and, therefore, in the event
of any such breach or threat of such a breach, in addition to other
remedies that may be available, Critical and/or any other applicable
Company shall have the right to seek specific performance and other
injunctive and equitable relief.
6. Proprietary Property.
a. Each party hereby agree that Proprietary Property (as hereinafter
defined) shall be the sole and exclusive property of the applicable
company. For purposes hereof, the term "Proprietary Property" shall
mean inventions, discoveries, improvements and ideas, whether
patentable or not, including, but not limited to, all Discoveries
and Work Product, which relate to the company's business, including
any of the company's Confidential Information or any of such
companies' products, services, processes, technology, research,
product development, marketing programs, manufacturing operations,
or engineering activities.
b. Each party hereby agrees and acknowledges that it has no present
right, title or interest in or with respect to any Proprietary
Property and will not in the future acquire any such right, title or
interest therein. In addition, each party covenants and agrees that
it will at any time, promptly upon the request and at the expense of
the other party, execute any and all patent applications and
assignments so requested and take any and all action as required by
of the other party and/or any of the companies to perfect and
maintain the rights and interests of such party or parties in and
with respect to the Proprietary Property.
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c. No party will, directly or indirectly, disclose, furnish, make
available or utilize any of the Proprietary Property, other than
pursuant to the terms and conditions of this Agreement.
7. Restrictive Covenants
a. No party shall, during the term commencing on the date of this
Agreement and terminating one year from the date of this Agreement
(the "Restricted Period"), anywhere within the United States (the
"Restricted Territory"), directly or indirectly (whether as an
owner, partner, shareholder, agent, officer, director, employee,
independent contractor, consultant, or otherwise):
i. perform services for, or engage in, any business that develops
or sells products or services which are competitive with any
products or services sold or developed by the other party for
which such party has provided any assistance in planning,
development, marketing, training, support, or maintenance
during the period of the Merger Agreement;
ii. solicit for employment any person who is, or was at any time
during the twelve-month period immediately prior to the date
of this Agreement, an employee of the other company.
b. The parties acknowledge that the businesses of the respective
company are and will be national and international in scope and thus
the covenants in this Section 7 would be particularly ineffective if
the covenants were to be limited to a particular geographic area of
the United States. If any court of competent jurisdiction at any
time deems the Restricted Period unreasonably lengthy, or the
Restricted Territory unreasonably extensive, or any of the covenants
set forth in this Section 7 not fully enforceable, the other
provisions of this Section 7, and this Agreement in general, will
nevertheless stand and to the full extent consistent with law
continue in full force and effect, and it is the intention and
desire of the parties that the court treat any provisions of this
Agreement which are not fully enforceable as having been modified to
the extent deemed necessary by the court to render them reasonable
and enforceable and that the court enforce them to such extent (for
example, that the Restricted Period be deemed to be the longest
period permissible by law, but not in excess of the length provided
for in paragraph 7(a), and the Restricted Territory be deemed to
comprise the largest territory permissible by law under the
circumstances).
8. Termination. The provisions of this Agreement shall survive the expiration
or any termination hereof, and shall remain in full force and effect
following such expiration or termination to the maximum extent permitted
by applicable law. The parties specifically acknowledge and agree that the
covenants, agreements and representations made by them hereunder may be
enforced against them in accordance with their terms for the maximum
permissible duration following any expiration or termination, for whatever
reason, of this Agreement.
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9. Disparagement; Public Announcements.
a. Each party covenants and agrees that no party shall, directly or
indirectly, disclose, publish, disseminate or communicate in any way
to any third party any information that is critical, derogatory or
is otherwise intended to disparage the other party or any of their
respective principals, officers, directors, shareholders or
affiliates, whether such information has been acquired prior to or
after the date of this Agreement (whether or not in the public
domain or otherwise confidential).
b. One party's failure to comply with the provisions of paragraph 7(a)
shall nullify the other affected party's obligations under paragraph
7(a).
c. No party to this Agreement shall make any public announcements
regarding this Agreement, the subject matter hereof or any other
matter related to any of the other parties hereto, and the parties
further agree that the content and/or wording of any press release
or other public disclosure that refers to the Agreement shall be
mutually agreed to by and between the parties in advance of its
release, except as may otherwise be required of Hunapu or Critical
as a public company under applicable law. Critical acknowledges and
agrees that Hunapu shall disclose this Agreement, the consummation
of the transactions contemplated by this Agreement and the effect(s)
and possible effects, if any, in the sole discretion of Hunapu in
consultation with counsel, with the Securities and Exchange
Commission, including, without limitation, a Post-Effective
Amendment to Registration Statement No. 333-45744, a Current Report
on Form 8-K, Quarterly Reports on Form 10-QSB and Annual Reports on
Form 10-KSB, and shall include a copy of this Agreement as an
exhibit to one or more of such filings.
d. The result of any party's breach of this Section 9 will likely cause
irreparable harm to the non-breaching party. Therefore, the parties
agree that the non-breaching party shall be entitled, without the
necessity of posting a bond to a decree or order by any court of
competent jurisdiction enjoining such threatened or actual violation
of this Section 9. Such decree or order, to the extent appropriate,
shall specifically enforce the full performance of this Section 9 by
the breaching party and the breaching party hereby consents to the
jurisdiction of any such court of competent jurisdiction. This
remedy shall be in addition to all other remedies available to the
non-breaching party at law or equity.
10. Waiver and Release.
a. In consideration of and conditioned upon the payments to be made and
consideration set forth in Section 3 of this Agreement, Hunapu, CAC,
Xxxxxxx and SBK (the "Releasor") irrevocably and unconditionally
release and forever discharge, give up and waive any and all claims
and rights they have, has or may have against each other party,
existing at any time up to and including the date of this Agreement.
This
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release shall also apply to all of the directors, officers,
affiliates, agents, employees, attorneys, subsidiaries, insurers and
representatives of Hunapu and/or their respective successors and
assigns, and against all who succeed to any of the rights and
responsibilities of any of the foregoing parties (collectively, the
"Released Parties").
b. Specifically, but not limited herein, the Releasor releases the
Released Parties from any and all claims, liens, complaints,
charges, demands, liabilities, suits (judicial, administrative, or
otherwise), rights or causes of action, at law or equity, whether
founded upon contract (expressed or implied), tort (including, but
not limited to, defamation), statute or regulation (federal, state
or local), common law and/or any other theory or basis, from the
beginning of the world to the date hereof, including, but not
limited to, any claim that the Releasor has asserted, now asserts or
could have asserted or otherwise, including, but not limited to,
claims, charges, demands, suits, causes or rights of action relating
to breach of contract or public policy, wrongful, retaliatory or
constructive discharge, or equitable relief, which the Releasor may
ever have had, has now or could have or which the Releasor's heirs,
executors or assigns can or shall have, against any or all of them,
whether known or unknown, on account of or arising out of his
employment with any company (including their respective predecessors
and successors) or any related entities or his separation from such
employment. The release by Hunapu provided by this Section 10 also
includes a release by Hunapu of any claims for breach of contract.
Hunapu specifically waives the benefit of any statute or rule of law
which, if applied to this Agreement, would otherwise exclude from
its binding effect any claims not now known by Hunapu to exist.
Hunapu therefore specifically waives any and all claims or rights of
which it is not aware and not specifically mentioned in this
release.
c. As a material inducement to Hunapu, CAC, Xxxxxxx and SBK to enter
into this Agreement, Critical hereby irrevocably and unconditionally
waives, releases and discharges Hunapu, and Hunapu's affiliates,
agents, shareholders, representatives and attorneys, successors and
assigns, from any and all claims, liens, complaints, charges,
demands, liabilities, rights or causes of action, at law or equity,
suits (judicial, administrative, or otherwise), damages, debts,
demands, obligations of any other nature, past or present, known or
unknown, whether in law or in equity, whether founded upon contract
(expressed or implied), tort (including, but not limited to,
defamation), statute or regulation (federal, state or local), common
law and/or any other theory or basis, from the beginning of the
world to the date hereof, including, but not limited to, any claim
that Critical has asserted, now asserts or could have asserted, or
otherwise.
d. It is understood and agreed by the parties hereto that the facts and
respective assumptions of law in contemplation of which this
Agreement is made may hereafter prove to be other than or different
from those facts and assumptions now known, made or believed by them
to be true. The parties hereto expressly accept and assume the risk
of the facts and assumptions to be so different, and agree that all
terms of this
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Agreement shall be in all respects effective and not subject to
termination or reclusion by any such difference in facts or
assumptions of law.
e. The releases as provided in this Section 10 shall not be applicable
to the enforceability of this Agreement nor the Escrow Agreement.
11. Indemnity.
a. Hunapu agrees to indemnify, defend and hold harmless, Critical and
all other entities, including any and all of its officers,
directors, shareholders, affiliates, partners, employees, agents,
representatives and controlling persons (collectively, the
"Indemnified Parties") to the extent provided under the laws of the
State of Nevada and the Certificate of Incorporation and By-Laws of
Hunapu from and against any and all losses, claims, damages,
liabilities, costs and expenses (and all actions, suits, proceedings
or claims in respect thereof) and any legal or other expenses
(including all attorneys' fees and fees and expenses of expert
witnesses) in giving testimony or furnishing documents in response
to a subpoena or otherwise (including, without limitation, the cost
of investigating, preparing or defending any such action, suit,
proceeding or claim, whether or not in connection with any action,
suit, proceeding or claim in which Hunapu or any Indemnified Party
is a party), as and when incurred, directly or indirectly, caused
by, relating to, based upon or arising out of (i) the Merger
Agreement, or (ii) as a result of the breach or inaccuracy of any
representation, warranty, covenant or agreement of Hunapu contained
in this Agreement for which all parties to this Agreement and their
respective officers, directors, shareholders, affiliates,
subsidiaries, partners, employees, agents, representatives and
controlling persons shall be indemnified and held harmless by
Hunapu.
b. The indemnity by Hunapu as set forth in paragraph 11(a) above shall
exclude all matters for which there is an obligation of Critical
and/or any other company or their respective insurers to indemnify
Hunapu for losses, claims, damages, liabilities, costs and expenses
(and all actions, suits, proceedings or claims in respect thereof)
and any legal or other expenses (including all attorneys' fees and
fees and expenses of expert witnesses) in giving testimony or
furnishing documents in response to a subpoena or otherwise
(including, without limitation, the cost of investigating, preparing
or defending any such action, suit, proceeding or claim, whether or
not in connection with any action, suit, proceeding or claim in
which Hunapu or any Indemnified Party is a party) arising with
respect to the Merger Agreement, but only to the extent that the
By-laws, state of incorporation law, or directors and officers'
liability insurance of Critical specifically provide for such
indemnification. Accordingly, Critical and/or any other applicable
company shall continue to indemnify and hold harmless Hunapu, CAC,
Xxxxxxx and SBK (collectively, herein "Hunapu") against and from (i)
any and all claims arising from the conduct of Hunapu arising from
any negligent or otherwise wrongful act or omission by Critical Law
(ii) any and all negligent act or omission by Hunapu during the term
of the Merger Agreement and this
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Agreement; and (iii) all costs, expenses and liabilities incurred on
or in connection with each such claim or action or proceeding
brought therein. In case any action or proceeding is brought against
Hunapu by reason of any such claim, Critical and/or the appropriate
company upon notice from Hunapu shall resist or defend such action
or proceeding at the company's sole expense. In the event Hunapu
refuses to cooperate in the defense of any such claim, Critical and
each other company shall have no obligation to defend and indemnify
Hunapu.
c. Critical acknowledges and agrees that Critical shall indemnify,
defend and hold harmless Hunapu including any and all of its
officers, directors, shareholders, affiliates, partners, employees,
agents, representatives and controlling persons (collectively, the
"Indemnified Parties") to the extent provided under the laws of the
State of New York and the Certificate of Incorporation and By-Laws
of Critical. Further, Critical agrees to indemnify, defend and hold
harmless Hunapu and all of its successors from and against any and
all losses, claims, damages, liabilities, costs and expenses (and
all actions, suits, proceedings or claims in respect thereof) and
any legal or other expenses (including all attorneys' fees and fees
and expenses of expert witnesses) in giving testimony or furnishing
documents in response to a subpoena or otherwise (including, without
limitation, the cost of investigating, preparing or defending any
such action, suit, proceeding or claim, whether or not in connection
with any action, suit, proceeding or claim in which Hunapu, Critical
and/or any company is a party), as and when incurred, directly or
indirectly, caused by, relating to, based upon or arising out of
arising out of (i) the Merger Agreement, or (ii) as a result of the
breach or inaccuracy of any representation, warranty, covenant or
agreement of Critical contained in this Agreement for which all
parties to this Agreement and their respective officers, directors,
shareholders, affiliates, subsidiaries, partners, employees, agents,
representatives and controlling persons shall be indemnified and
held harmless by Critical, and (iii) the failure of Critical to
obtain waivers pursuant to Section 4(b) herein, from the
shareholders of Hunapu other than Xxxxxxx, SBK and their affiliates.
12. Representations and Covenants of Hunapu.
a. For the six months following the date of this Agreement, Hunapu
shall hold itself ready to assist Critical, and each other company
and their respective successors, upon reasonable notice, in
furnishing information with respect to such aspects of the business
and affairs of Hunapu relating to matters as to which they have
knowledge gained during the course of the Merger Agreement that may
from time to time reasonably be requested by Critical and/or its
successors. Nothing herein shall require Critical and/or their
respective successors to utilize Hunapu's services for any
particular transaction, nor shall this Agreement limit Hunapu's
obligations arising under any other agreement or understanding. All
obligations of Hunapu contained herein shall be subject to its
reasonable availability for such performance, in view of the nature
of the requested service and the amount of notice received.
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b. Hunapu acknowledges and agrees that this Agreement confers no
authority upon it to act in any way for or on behalf of any of the
other parties hereto and that, in the absence of specific written
authority to such effect, it has no authority to hold itself out as
representing or to act on behalf of or to bind Critical or any other
company, and/or their respective successors. In addition, Hunapu
agrees that it shall take no action whatsoever pursuant to this
Section 12, specifically including contacting any third parties,
except strictly in accordance with written instructions from the
Company.
13. Specific Performance. Hunapu acknowledges that its breach or threatened
violation of any of the covenants contained in this Agreement,
specifically including Sections 4, 6, 7, 8, 9 or 10 of this Agreement, may
cause irreparable damage to the other parties, for which remedies at law
would be inadequate. The parties further acknowledge that all such
covenants are essential terms and conditions of this Agreement. The
parties therefore agree that the non- breaching party shall be entitled,
without the necessity of posting bond, to a decree or order by any court
of competent jurisdiction enjoining such threatened or actual violation of
any of such covenants. Such decree or order, to the extent appropriate,
shall specifically enforce the full performance of any such covenant by
the breaching party and the same hereby consents to the jurisdiction of
any such court of competent jurisdiction. This remedy shall be in addition
to all other remedies available to the parties at law or equity. If any
portion of any such covenant shall be adjudicated to be invalid or
unenforceable, this Agreement shall be deemed amended to modify, to the
extent practicable, or delete therefrom the portion so adjudicated, such
deletion to apply only with respect to the operation of such covenant in
the jurisdiction in which such adjudication is made.
14. Miscellaneous
a. This Agreement shall inure to the benefit of and be binding upon
Critical and its respective successors and assigns, and upon Hunapu
and its successors and assigns.
b. Should any part of this Agreement, for any reason whatsoever, be
declared invalid, illegal, or incapable of being enforced in whole
or in part, such decision shall not affect the validity of any
remaining portion, which remaining portion shall remain in full
force and effect as if this Agreement had been executed with the
invalid portion thereof eliminated, and it is hereby declared the
intention of the parties hereto that they would have executed the
remaining portion of this Agreement without including therein any
portion which may for any reason be declared invalid.
c. This Agreement shall each be construed and enforced in accordance
with the laws of the State of Nevada applicable to agreements made
and to be performed in such State without application of the
principles of conflicts of laws of such State. Each of the parties
hereto hereby consents to the venue and jurisdiction of the State of
Nevada for any action or proceeding relating to this Agreement, and
hereby waives any objection based on the convenience of such forum,
or otherwise. Each of the parties
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hereby consents to service of process within the State of New York
and Nevada, in addition to any other jurisdictions where process
could be made under Nevada law.
d. This Agreement and all rights hereunder are personal to the parties
and shall not be assignable, and any purported assignment in
violation thereof shall be null and void. Any person, firm or
corporation succeeding to the business of Hunapu or Critical by
merger, consolidation, purchase of assets or otherwise, shall assume
by contract or operation of law the obligations of such company
hereunder; provided, however, that the assigning company shall,
notwithstanding such assumption and/or assignment, remain liable and
responsible for the fulfillment of the terms and conditions of this
Agreement on the part of such assigning company.
e. Any notice, statement, report, request or demand required or
permitted to be given by this Agreement shall be in writing, and
shall be sufficient if delivered in person or if addressed and sent
by certified mail, return receipt requested, postage prepaid, to the
parties at the addresses set forth above, or at such other place
that either party may designate by notice in the foregoing manner to
the other. If mailed as aforesaid, any such notice shall be deemed
given three days after being so mailed.
f. Arbitration.
i. Any dispute arising between the parties to this Agreement,
including, but not limited to, those pertaining to the
formation, validity, interpretation, effect or alleged breach
of this Agreement ("Arbitrable Dispute") will be submitted to
arbitration in Vas Vegas, before an experienced panel of
arbitrators selected in accordance with the rules of the
American Arbitration Association. The arbitrators shall be
entitled to award costs and fees of an Arbitrable Dispute to
the prevailing party in such Arbitrable Dispute, in the sole
discretion of such arbitrators.
ii. Should any party to this Agreement hereafter institute any
legal action or administrative proceedings against another
party by any method other than said arbitration with respect
to the subject matters of this Agreement, notwithstanding the
provisions of this paragraph 14(f), the responding party shall
be entitled to recover from the initiating party all damages,
costs, expenses and attorney's fees incurred as a result of
such action.
g. The failure of either party to insist upon the strict performance of
any of the terms, conditions and provisions of this Agreement shall
not be construed as a waiver or relinquishment of future compliance
therewith, and said terms, conditions and provisions shall remain in
full force and effect. No waiver of any term or any condition of
this Agreement on the part of either party shall be effective for
any purpose whatsoever unless such waiver is in writing and signed
by such party.
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h. In the event a lawsuit is instituted by any party concerning a
dispute under this Agreement, the prevailing party in such lawsuit
shall be entitled to recover from the losing party all reasonable
attorneys' fees, costs of suit and expenses (including fees, costs
and expenses of appeals and of expert witnesses), in addition to
whatever damages or other relief the injured party is otherwise
entitled to under law and in connection with such dispute.
i. The headings of the paragraphs herein are inserted for convenience
and shall not affect any interpretation of this Agreement.
j. This Agreement may be executed in one or more counterparts, all of
which shall be considered one and the same agreement and shall
become effective when one or more counterparts have been signed by
each of the parties and delivered to the other party, it being
understood that all parties need not sign the same counterpart.
12
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first written above.
HUNAPU, INC.
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Xxxx X. Xxxxxxx, President.
CRITICAL ACQUISITION CORP.
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Xxxx X. Xxxxxxx, President
PUTUN, LLC
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Xxxx X. Xxxxxxx
CRITICAL HOME CARE, INC.
By: /s/ Xxxxx Xxxxxx
----------------------------------------
Xxxxx Xxxxxx
SNOW XXXXXX XXXXXX, P.C.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxx
CRITICAL SHAREHOLDERS
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Xxxxx X. Xxxxxx
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------------
Xxxxxxx X. Xxxxx
13
