Exhibit 10.12B
AMENDMENT TO MUTUAL RELEASE
AND TERMINATION AGREEMENT
-------------------------
AMENDMENT dated January 16, 2004 to the Mutual Release and
Termination Agreement dated as of December 19, 2003, among Xxxxxx
Capital LLC ("Xxxxxx Capital"), Strategic Growth International,
Inc., its subsidiaries and/or affiliates (hereinafter "SRG") and
Pacific CMA, Inc., its subsidiaries and affiliates (hereinafter
"Pacific").
W I T N E S S E T H:
WHEREAS, Xxxxxx Capital, SRG and Pacific entered into a
Mutual Release and Termination Agreement (the "Termination
Agreement");
WHEREAS, Xxxxxx Capital, SRG and Pacific entered into the
Termination Agreement under a mistake of fact;
WHEREAS, Xxxxxx Capital, SRG and Pacific were in error as to
the delivery and receipt of certain warrants to purchase shares
of Pacific Common Stock issued by Pacific to Xxxxxx Capital; and
WHEREAS, as a consequence, the parties wish to amend certain
of the terms and conditions of the foregoing agreements.
NOW, THEREFORE, the Termination Agreement is hereby amended
as follows:
1. Section 2. "Xxxxxx Capital Warrants; Additional
Warrants" is hereby amended by deleting the text of this entire
Section and replacing the text thereof with the word "Deleted."
2. Section 3 is hereby amended to read as follows:
3. Xxxxxx Capital Cash Amount. Pacific owes Xxxxxx Capital
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fees and expenses in the amount of $14,456.25 (the "Cash
Amount"). These fees and expenses have been previously invoiced
by Xxxxxx Capital, and Pacific hereby confirms that, as soon as
commercially practicable, it will wire the Cash Amount to the
following account:
Xxxxxx Capital LLC
A/C #9479980098
ABA # 000000000
Fleet Bank
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
4. This Amendment shall be construed and interpreted in
accordance with the laws of the State of New York, and all
disputes hereunder shall be governed thereby. This parties hereto
understand and agree that any controversy or claim arising out of
or related to this Amendment, or any breach thereof, shall be
settled by final and binding arbitration in New York pursuant to
the Commercial Dispute Resolution Procedures and Rules of the
American Arbitration Association ("AAA Rules") and that
disinterested arbitrator(s) shall be selected pursuant to the AAA
Rules.
5. As hereby amended, the Termination Agreement is in all
respects ratified and confirmed. On and after the effectiveness
of this Amendment each reference in the Termination Agreement to
the "Agreement," "hereinafter," "herein," "hereunder," "hereof"
or words of like import shall mean and be a reference to the
Termination Agreement as amended by this Amendment.
6. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original and all
of which taken together shall constitute a single Amendment.
IN WITNESS WHEREOF, each of Xxxxxx Capital, SRG and Pacific
have caused this Agreement to be executed by a duly authorized
person on its behalf as of the day and year first above written.
XXXXXX CAPITAL LLC
By: /s/Xxxxxxx Xxxx
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Name: Xxxxxxx Xxxx
Title: Chief Executive Officer
STRATEGIC GROWTH
INTERNATIONAL, INC.
By:
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Name:
Title:
PACIFIC CMA, INC.
By: /s/Xxxxxx Xxx
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Name: Xxxxxx Xxx
Title: Chairman of the Board
of Directors
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