EXHIBIT 99(b)(1)
WAIVER AND RELEASE
OF EMPLOYEE SHAREHOLDERS
This WAIVER AND RELEASE ("Agreement") is made and entered into as of this
____________ day of April, 2001, by and between Chequemate International Inc., a
Utah corporation (together with all Subsidiaries of Chequemate International
Inc., "the Company"), Another World Inc., a corporation organized in the
Republic of Korea ("AWK"), the shareholders of the Company listed on the
signature pages hereto (collectively, the "VisionComm Shareholders") (the
Company, AWK, and the VisionComm Shareholders are collectively referred to as
the "Parties").
WITNESSETH
WHEREAS, the Company believes it is highly desirable and in the best
interests of the Company to receive an injection of cash and viable assets from
certain shareholders of AWK (the "Purchasers");
WHEREAS, the Parties desire that the Purchasers acquire a majority equity
interest in the Company pursuant to that certain Master Agreement between the
Company and AWK dated March 15, 2001 ("Master Agreement");
WHEREAS, the Company and the VisionComm Shareholders desire to cooperate
fully with AWK in all aspects of the Acquisition, including, but not limited to,
negotiations, due diligence and the obtaining of necessary approvals, and AWK
desires to cooperate fully with the Company in all aspects of the Acquisition,
including, but not limited to, negotiations, due diligence and the obtaining of
necessary approvals;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements herein contained, the adequacy and sufficiency is
hereby acknowledged and in order to induce AWK to enter into the Master
Agreement and to implement the transactions contemplated therein, the Parties
hereby agree as follows:
REPRESENTATIONS AND WARRANTIES
1.1 Each Party represents and warrants that as of the date of this Agreement:
1.1.1 ORGANIZATION. If a business entity, it is duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its organization.
1.1.2 POWER AND AUTHORITY. It has all requisite power and authority
to enter into this Agreement and to perform its obligations
under this Agreement and to consummate the transactions
contemplated hereby or thereby. The execution, delivery and
performance of this Agreement has been duly authorized by all
necessary corporate action or otherwise on the part of each
Party. This Agreement has been duly executed and delivered by
each party and constitutes,
and upon execution thereof by all parties thereto, the legal,
valid and binding obligations of each Party, enforceable
against each Party in accordance with their respective terms.
The execution and delivery by each Party of this Agreement do
not, and the consummation of the transactions contemplated
hereby will not, violate any provisions of the certificate of
incorporation or by-laws of any corporate Party or violate any
provision of or result in the acceleration of any obligation
or the creation of any lien under, any permit, agreement,
indenture, instrument, lease, order, arbitration award,
judgment or decree to which any Party is a party or by which a
Party or any of its assets or properties is bound. This
Agreement has been duly approved by the board of directors of
each corporate Party with all necessary consents and authority
to enter into this Agreement being granted by the board of
directors. No further approval is needed from any given board
of directors for each corporate Party to enter and implement
this Agreement.
1.1.3 GOVERNMENTAL APPROVALS AND FILINGS. No consent, approval or
action of, filing with or notice to any governmental or
regulatory authority is required of any Party in connection
with the execution, delivery and performance by it of this
Agreement.
1.1.4 LEGAL PROCEEDINGS. There are no actions or proceedings pending
or, to the Party's knowledge, threatened against, relating to
or affecting such Party or any of its assets and properties
which could reasonably be expected to result in the issuance
of an order restraining, enjoining or otherwise prohibiting or
making illegal the consummation of any of the transactions
contemplated by this Agreement.
1.1.5 NO CONFLICTS. The execution and delivery by it of this
Agreement, the performance by it of its obligations hereunder,
and the consummation by it of the transactions contemplated
hereby do not and will not (i) conflict with or result in a
violation or breach of any of the terms, conditions or
provisions of its certificate or articles of incorporation,
bylaws or other constituent documents, (ii) conflict with or
result in a violation or breach of any term or provision of
any law or order applicable to it or any of its assets and
properties; or (iii) conflict with or result in a violation or
breach of any material contract or agreement to which it is a
party or by which any of its assets and properties is bound or
affected where such conflict, violation or breach in the case
of clause (iii) would be reasonably likely to have a material
adverse effect on its ability to perform its obligations
hereunder.
1.2 Each VisionComm Shareholder represents and warrants that: (1) with
respect to VisionComm Inc, a Delaware corporation ("VisionComm"), the following
statements are all true to the best of his or her knowledge after reasonable
inquiry; and (2) with respect to the Company, the following statements are all
true to the best of his or her actual knowledge:
1.2.1 NO MATERIAL ADVERSE CHANGE. Except as listed on SCHEDULE
1.2.1, since December 18, 2000, there has not been any
material adverse change in the condition (financial or
otherwise), business, assets, or results of operations of the
business in any such case, taken as a whole and no event or
condition has occurred or is known to the Company which could
reasonably be expected to have a Material Adverse Effect.
("Material Adverse Effect" shall mean, with respect to any
entity: (a) any effect on or change in the condition
(financial or otherwise), business, assets or results of
operations of the entity which, alone or taken together with
any other such effects or changes at such entity, would have
or could reasonably be expected to have a material adverse
effect on the condition (financial or otherwise), business,
assets or results of operations, taken as a whole, of such
entity; or (b) any effect on or change in the condition
(financial or otherwise), business, assets or results of
operations of any or all Subsidiaries of the entity taken as a
whole which, alone or taken together with any other such
effects or changes, would have or could reasonably be expected
to have a material adverse effect on the condition (financial
or otherwise), business, assets or results of operations of
the entity and such Subsidiaries taken as a whole.) In
addition, without limiting the foregoing, except as disclosed
in SCHEDULES 1.2.1 and except for the transactions
contemplated by this Agreement and the Master Agreement, since
December 18, 2000, neither the Company nor VisionComm has:
(a) (i) declared, set aside or paid any dividend or other
distribution (in cash or other assets) in respect of the
capital stock or other equity interests of the Company or
VisionComm (ii) directly or indirectly redeemed, purchased or
otherwise acquired any such capital stock or other equity
interests, or (iii) made any other payment or distribution of
cash or assets;
(b) authorized, issued, sold or otherwise disposed of, or
granted any option with respect to, or issued any security
convertible into or exchangeable for any shares of capital
stock or other equity interests of the Company, or modified or
amended any right of any holder of any outstanding shares of
capital stock or other equity interests or options;
(c) other than in the ordinary course of business consistent
with past practice, (i) increased salary, wages or other
compensation (including, without limitation, any bonuses,
commissions and any other payments) of any employee or
consultant of the Company whose annual salary, wages and such
other compensation is, or after giving effect to such change
would be, in the aggregate $50,000 or more per annum; or (ii)
established, terminated or modified any Employee Benefit Plan,
employment contract or other employee compensation
arrangement;
(d) other than amounts under $20,000, (i) incurred any
indebtedness, (ii) made or agreed to make any loans to any
person or (iii) made or agreed to make any voluntary purchase,
cancellation, prepayment or complete or partial discharge in
advance of a scheduled payment date with respect to, or waiver
of any right under, any indebtedness of or owing to the
Company or VisionComm;
(e) suffered any physical damage, destruction or other
casualty loss (whether or not covered by insurance) affecting
any of the real or personal property or equipment or the
assets and properties of the Company or VisionComm; except
where such damage, destruction or other casualty loss would
not have a Material Adverse Effect;
(f) failed to pay or satisfy when due any obligation of
the Company or VisionComm, except when the failure would not
have a Material Adverse Effect;
(g) acquired any business or material assets or properties
of any person (whether by merger, consolidation or otherwise)
or disposed of, leased, or incurred a lien on, any material
assets or properties of the Company or VisionComm, in each
case, other than acquisitions or dispositions of inventory
(including without limitation infusion pumps) in the ordinary
course of business of the Company or VisionComm consistent
with past practice;
(h) entered into, amended, modified in any material way
terminated (in whole or in part) or granted a waiver under or
given any consent with respect to (i) any contract which is
required (or had it been in effect on the date hereof would
have been required) to be disclosed pursuant to this Agreement
(ii) any Permit held by the Company or VisionComm; (iii) any
intellectual property; or (iv) made any capital expenditures
in excess of $10,000 in the aggregate, or incurred any
obligation to make any such capital expenditure;
(i) commenced, terminated or changed in any material way any
line of business or added any additional lines of business;
(j) entered into any transaction with any stockholder,
partner, member or affiliate of the Company or or VisionComm,
other than pursuant to any contract in effect on December 31,
2000, and heretofore disclosed to AWK;
(k) made any change in the accounting methods or procedures
of the Company or VisionComm; or
(l) entered into any agreement to do any of the things
described in the preceding paragraphs.
1.2.2 LITIGATION. Except as disclosed on SCHEDULE 1.2.2, there are no
actions, suits, arbitration proceedings, or other litigation
investigations, inquiries or proceedings ("Actions or Proceedings")
pending or threatened (a) against or affecting the Company or
VisionComm other than actions, suits, arbitration proceedings, or
other litigation or proceedings, which taken individually or in the
aggregate do not and could not be reasonably expected to have a
Material Adverse Effect or (b) which challenge the validity of the
transactions contemplated by this Agreement. Except as disclosed on
SCHEDULE 1.2.2, neither the Company nor VisionComm is not subject to
any order, judgment, decree, award, investigation, inquiry or
stipulation of or with any governmental authority which has, or may
reasonably be expected to have, a Material Adverse Effect. Neither
the Company nor VisionComm is not in default with respect to any
order, judgment, decree, award or stipulation of any governmental
authority and there are no unsatisfied judgments against either of
the Company or VisionComm. There is not a reasonable likelihood of
an adverse determination of any pending action or proceeding that
would, individually or in the aggregate, have a Material Adverse
Effect.
1.2.3 TAXES.
(a) Other than with respect to taxes not yet due and payable, (i)
all taxes due and owing by the Company or VisionComm (whether
or not shown on any tax return) have been properly determined
in accordance with applicable rules and regulations and have
been timely paid in full, or in connection with amounts paid
or owing to any employee, creditor, independent contractor,
shareholder, customer, supplier or other third party, where
required by law have been timely withheld, deposited and paid
in full and (ii) all tax returns required to be filed for
taxable periods ending on or before December 31, 2000, by or
with respect to the Company or VisionComm, have been or
(assuming cooperation by AWK as
required by this Agreement) will be duly and timely filed in
accordance with all applicable laws, and each such tax return
is (or will be when filed) correct and complete in all
material respects.
(b) There is no pending or threatened dispute, claim or issue
raised, or expected to be raised or assessed, by any
governmental authority in any jurisdiction concerning any tax
liability of the Company or VisionComm. The Company and
VisionComm have made available to AWK complete and correct
copies of all tax returns, or portions thereof, filed by or
with respect to, and all tax examination reports and
statements of deficiencies assessed against, or agreed to by
or with respect to, the Company and VisionComm respectively.
(c) Neither the Company nor VisionComm has received any written
ruling of a governmental authority related to taxes or entered
into any written and legally binding agreement with a
governmental authority related to taxes.
1.2.4 COMPLIANCE WITH LAWS. The Company and VisionComm have complied with
and are in compliance with all laws, statutes, regulations, rules
and ordinances and other pronouncements of any governmental
authority applicable to their respective business, the Company or
its assets or properties or VisionComm's assets or properties
(including without limitation the Federal Foreign Corrupt Practices
Act) except where the failure to comply would not have, and could
not reasonably be expected to have, a Material Adverse Effect.
1.2.5 CONSENTS. Except as set forth in SCHEDULE 1.2.5, no notice to,
filing with, authorization of, exemption by or consent of any
governmental authority or any other person is required in order for
either of the Company or VisionComm to consummate the transactions
contemplated hereby, except for any consent, the failure of which to
be obtained, would not have and could not reasonably be expected to'
have a Material Adverse Effect.
1.2.6 UNFAIR LABOR PRACTICES. Neither the Company nor VisionComm is
engaged in any unfair labor practice as determined by applicable
local law. There is (i) no unfair labor practice complaint pending
or, to the knowledge of the Company or VisionComm, threatened
against the Company or VisionComm; (ii) no grievance, arbitration or
other proceeding arising out of or under trade union contracts
pending or, to the knowledge of the Company or VisionComm,
threatened against the Company or VisionComm, which has or could
reasonably be expected to have a Material Adverse Effect, and (iii)
no strike, labor dispute, slowdown or stoppage pending or, to the
knowledge of the Company or VisionComm, threatened against the
Company or VisionComm.
COVENANTS
2. The covenants undertaken in this Section 2 are conditioned upon the
successful completion of the First Closing under the Master Agreement.
2.1 ISSUANCE OF STOCK. The Company shall issue ("Issuance") an
additional number of shares of Common Stock such that total the number of
shares of Common Stock held by the VisionComm Shareholders in aggregate after
the Issuance is Twelve Million Eight Hundred Thousand (12,800,000). Prior to
Issuance, each VisionComm Shareholder will execute respectively the
Subscription Agreements attached in substantial form hereto as Exhibit A. The
Issuance shall be allocation among the VisionComm Shareholders as follows:
---------------------------------------------------------------------------------
NAME OF SHAREHOLDERS NUMBER OF SHARES TOTAL NUMBER OF SHARES
PRIOR TO ISSUANCE AFTER ISSUANCE
---------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxxxxxx 869,406 4,451,358
---------------------------------------------------------------------------------
Xxxxxxxx X. Xxxx 149,225 764,186
---------------------------------------------------------------------------------
Xxxxxx X. Xxx 149,225 764,186
---------------------------------------------------------------------------------
Xxxxx Xxxxxxxxx, Xx. 41,980 214,938
---------------------------------------------------------------------------------
Xxxxx-Xxx 12,425 63,616
Xxxxxxx-Xxxxxxxxxx
---------------------------------------------------------------------------------
Xxxxx X. Xxxxxx 6,213 31,810
---------------------------------------------------------------------------------
2.2 NEW MEMBERS ELECTED TO BOARD OF DIRECTORS. The Parties shall have
taken all necessary steps under the Utah Revised Business Corporation Act, the
rules of the American Stock Exchange and the rules and regulations promulgated
under the Securities Exchange Act of 1934, as amended (the "Exchange Act") to
elect AWK's nominees to the board of directors of the Company. The Company
agrees to accept the resignations from no fewer than that number of directors on
the Company's incumbent board of directors that will give the AWK's nominees to
the board a majority on the Company's Board of Directors.
2.3 VOTE FOR REMOVAL. In the event that the Company's directors decline
to resign, the VisionComm Stockholders shall vote their shares of Common Stock
and sign all such shareholder consents as are necessary to replace the incumbent
directors with AWK's nominees.
2.4 [reserved]
2.5 SURRENDER NOTES AND WARRANTS. Within five (5) business days of the
date of this Agreement, the VisionComm Shareholders will surrender to the
Company for cancellation all of the promissory notes and warrants issued to them
on or around December 2000.
2.6 MODIFICATION OF REGISTRATION RIGHTS. Each VisionComm Shareholder
hereby modifies his registration rights under that certain Amended Stock
Purchase and Sale Agreement between the Company and VisionComm dated December
19, 2000. Section 8 is hereby rescinded and replaced in its entirety by the
following and now reads:
"A. INCIDENTAL REGISTRATION. If the Purchaser at any time, proposes to file on
its behalf or on behalf of any of its shareholders, a registration statement
under the Act on any form (other than a registration statement on Form S-4 or
S-8 or any successor form unless such forms are being used in lieu of or as the
functional equivalent of, registration rights) for any class that is the same or
similar to the Stock, it will give written notice setting forth the terms of the
proposed offering and such other information as the Sellers may reasonably
request to all Sellers at least thirty (30) days before the initial filing with
the Securities and Exchange Commission of such registration statement, and offer
to include in such filing such Stock, and the stock issued upon exercise of the
Warrants (the "Warrant Stock"), as any Seller may request. Each Seller desiring
to have Stock and Warrant Stock registered will advise the Purchaser in writing
within thirty (30) days after the date of receipt of such notice from the
Purchaser, setting forth the amount of such Stock and Warrant Stock for which
registration is requested. The Purchaser will thereupon include in such filing
the amount of stock for which registration is so requested, and will use its
best efforts to effect registration under the Act. The rights granted under this
paragraph shall not take effect before six months after and will expire twelve
months after the date of "Second Closing" as that term is defined in that
certain Master Agreement between the Purchaser and Another World, Inc., a
corporation established under the laws of the Republic of Korea dated March 15,
2001.
B. FORM S-3 REGISTRATION. In addition to the registration rights provided in
Section 8(A) above, if at any time the Purchaser is eligible to use Form S-3
consistent with Rule 415 of the Act (or any successor form for registration of
secondary sales of Stock), any Seller may request in writing that the Purchaser
register its shares and the Warrant Stock held by such Seller, on such form.
Upon receipt of such request, the Purchaser will promptly notify all Sellers in
writing of the receipt of such request and each such Seller may elect (by
written notice sent to the Purchaser within thirty (30) days of receipt of the
Purchaser's notice) to have its or his/her Stock and Warrant Stock included in
such registration. Thereupon, the Purchaser will, as soon as practicable, use
its best efforts to effect the registration on Form S-3 of all Stock and Warrant
Stock that the Purchaser has so been requested to register by the Sellers for
sale. The Purchaser will use its best efforts to qualify and maintain its
qualification for eligibility to use Form S-3 for such purposes. The rights
granted under this paragraph shall not take effect before six months after and
will expire twelve months after the date of "Second Closing" as that term is
defined in that certain Master Agreement between the Purchaser and Another
World, Inc., a corporation established under the laws of the Republic of Korea
dated March 15, 2001."
2.7 WAIVER AND RELEASE. Except for the Claims, as defined below,
listed in Schedule 2.7 attached hereto, each of the VisionComm Shareholders, on
behalf of himself, his transferees, successors and assigns, and any trustees,
heirs, beneficiaries, executors and administrators (each, a "Releasor"), hereby
releases, forever discharges and
waives any rights against AWK, the Purchasers, the Company, any present and
future directors and officers of either, any present or future shareholders of
AWK, and counsel to the Company and AWK and the Purchasers, and in each case,
such person's or entity's respective successors and assigns (in each case, other
than the respective VisionComm Shareholder and any officers and directors of the
Company who resign and/or are removed or voted out of office in accordance with
the Master Agreement) (the released parties being hereinafter collectively
referred to as the "Released Parties"), from all actions, causes of action,
suits, debts, sums of money, accounts, bills, covenants, contracts,
controversies, agreements, promises, trespasses, damages, judgments, extents,
executions, claims, and demands whatsoever, in law or equity (collectively,
"Claims") that Releasor ever had, now have or hereafter can, shall or may have
against the Released Parties, for, upon, by reason of, arising out of or
otherwise relating to the conduct of the business of the Company or AWK or the
transactions described or referred to herein, from the beginning of the world to
the date of this general release. Releasor hereby represents (and acknowledges
the reliance of the Released Parties hereon) that Releasor has not heretofore
assigned or transferred, or purported to assign or transfer, to any person,
firm, corporation or entity whatsoever, any of the Claims herein released and
discharged.
2.8 REVERSE SPLIT OF SHARES OF COMMON STOCK. If so requested in writing
at least 20 days prior to the First Closing as that term is defined in the
Master Agreement, the Company shall use its best efforts to cause a reverse
stock split to reduce the outstanding number of common stock of the Company. If
the vote or written consent of the VisionComm Shareholders is required or
requested in writing by AWK in connection with the Reverse Stock Split, each of
the VisionComm Shareholders agrees to promptly provide such vote and/or written
consent, in addition to the delivery of the proxy described in the Master
Agreement. The VisionComm Shareholders shall do all such things and execute and
deliver all such documents and instruments, including without limitation the
proxy, as are necessary or (in the sole discretion of AWK on behalf of the
Purchasers) desirable to give effect to the provisions of this Section 2.8.
2.9 DELIVERIES BY VISIONCOMM SHAREHOLDERS. Within five (5) business days
hereof, each VisionComm Shareholder shall deliver to AWK an irrevocable proxy in
the form of Schedule 2.9 attached hereto and made a part hereof.
MISCELLANEOUS
3.1 CONFIDENTIAL INFORMATION. Except to the extent required by any
provision hereof or by applicable law or required in connection with any tax or
securities filing, or otherwise approved by the other party in advance, for a
period of five (5) years from the First Closing Date, all of the current
officers and directors of the Company shall retain in strict confidence, and
shall not use for the benefit of itself or others, any confidential and
proprietary information relating solely to the Business of either the Company of
VisionComm, customer lists, pricing policies, marketing plans or strategies, and
product development techniques or plans; provided, however, that the
restrictions of this Section
shall not apply to information which is or becomes public knowledge or otherwise
generally known in the trade through no fault of the Company, or shall be
subject to an order of a court of competent jurisdiction.
3.2 PUBLICITY. The parties shall confer with each other prior to making
any public announcement or release concerning this Agreement, the Master
Agreement or the transactions contemplated hereby and thereby and shall promptly
cooperate with each other to the extent practicable in issuing any such
announcements or releases.
3.3 NO BREAK UP LIABILITY. The Parties understand and acknowledge that
by signing this letter they are entering into good faith negotiations to
consider whether they wish to pursue the Acquisition. At any point prior to
signing the Master Agreement and other related documents, either Party may
terminate all discussions and negotiations without any liability whatsoever to
the other Party.
3.4 NOTICES. Any notice, certificate, consent, determination or other
communication required or permitted to be given or made under this Agreement
shall be in writing and shall be effectively given and made if: (i) delivered
personally, (ii) sent by prepaid courier service or mail to an address provided
to the sender by the receiving party, or (iii) sent by fax or other similar
means of electronic communication with the proof of receipt.
(a) If to the Company or a VisionComm Shareholder addressed as follows:
000 Xxxxx Xxxx Xxxx.
Xx. Xxxxxxx, Xxxxxxxx 00000
Attn: CEO or President
with a copy to:
00000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: CEO or President
(b) If to AWK or the Purchasers, addressed as follows:
T.B.I. Center Myong Ji University, San 38-2
Nam-Dong, Yongin
Kyunggi-Do KOREA
Telecopier: 00-00-000-0000
Attn: CEO or President
with a copy to:
Davies Xxxx Xxxxxxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxx, Esq.
Any such communications so given or made shall be deemed to have been given or
made and to have been received on the day of delivery, or on the day of faxing
or sending by other means of recorded electronic communication (confirmation of
delivery or transmission required), provided that such day in either event is a
business day in the State of New York and the communication is so delivered,
faxed or sent before 4:30 p.m. on such day. Otherwise, such communication shall
be deemed to have been given and made and to have been received on the next
following business day. Any such communication sent by mail shall be deemed to
have been given and made and to have been received on the fifth business day
following the mailing thereof, provided however that no such communication shall
be mailed during any actual or apprehended disruption of postal services. Any
such communication given or made in any other manner shall be deemed to have
been given or made and to have been received only upon actual receipt.
Either party may from time to time change its address under this Section 3.4 by
notice to the other party given in the manner provided by this Section 3.4.
3.5 EXPENSES. Except as otherwise expressly provided in this Agreement
or in the Operative Agreements, each party will pay its own costs and expenses.
3.6 WAIVERS. The failure of a party hereto at any time or times to
require performance of any provision hereof shall in no manner affect its right
at a later time to enforce the same. No waiver by a party of any condition or of
any breach of any term, covenant, representation or warranty contained in this
Agreement shall be effective unless in writing, and no waiver in any one or more
instances shall be deemed to be a further or continuing waiver of any such
condition or breach in other instances or a waiver of any other condition or
breach of any other term, covenant, representation or warranty.
3.7 COUNTERPARTS. This Agreement and any or all of the Transaction
Documents may be executed simultaneously in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
3.8 HEADINGS. The headings preceding the text of Articles and Sections
of this Agreement and the Schedules thereto are for convenience of reference
only and shall not be deemed part of this Agreement.
3.9 APPLICABLE LAW; ARBITRATION.
(a) This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York, United States of America,
without regard to its conflict of laws principles.
(b) Any dispute, controversy or claim arising out of or relating to this
Agreement, or the breach, termination or invalidity thereof, shall be finally
resolved by arbitration in accordance with the Arbitration Rules of the United
Nations Commission on International Trade Law (UNCITRAL) as at present in force.
The arbitration shall take place in New York, New York and shall be conducted in
the English language. The arbitration shall be conducted by three (3)
arbitrators, one to be appointed by the Company, one to be appointed by AWK and
a third by the two arbitrators so selected. The "appointing authority" for
purposes of the UNCITRAL Rules shall be the American Arbitration Association.
(c) To the extent permitted by law, the award of the arbitrators may
include, without limitation, one or more of the following: a monetary award, a
declaration of rights, an order of specific performance, an injunction,
reformation of the contract. The decision of the arbitrators shall be final and
binding upon the parties hereto, and judgment on the award may be entered in any
court of competent jurisdiction.
(d) Each party shall have the right to institute judicial proceedings
for interim measures of protection (including without limitation injunction,
attachment or sequestration of property, temporary restraining order,
preliminary injunctions and other equitable relief) before or during the
pendency of any arbitration proceeding hereunder, if such remedy is required to
prevent irreparable harm or injury to a party. Each party (without hereby
limiting its susceptibility to suit in any court) expressly submits itself and
consents to the non-exclusive jurisdiction of the courts of the State of New
York, and the United States federal courts located in the borough of Manhattan,
New York City, New York, with respect to any such judicial proceeding.
(e) The cash expenses of the arbitration (including without limitation
reasonable fees and expenses of counsel, experts and consultants) shall be borne
by the party against whom the decision of the arbitrators is rendered; provided
that in the event a party prevails only partially, such party shall be entitled
to get reimbursed for such costs and expenses in the proportion that the dollar
amount successfully claimed by the prevailing party bears to the aggregate
dollar amount claimed.
3.10 ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns;
provided, however, that no assignment or other transfer shall be made without
the prior written approval of each of the parties hereto.
3.11 NO THIRD PARTY BENEFICIARIES. Except as otherwise provided herein,
this Agreement is solely for the benefit of the parties hereto and their
respective Affiliates and no provision of this Agreement shall be deemed to
confer upon third parties any remedy, claim, liability, reimbursement, claim of
action or other right in excess of those existing without reference to this
Agreement.
3.12 SEVERABILITY. If any provision of this Agreement is deemed to be
invalid, illegal or unenforceable by an arbitrator, a court of competent
jurisdiction or other governmental authority, the remainder of this Agreement
shall remain in full force and effect or shall be reasonably construed to carry
out the intent of the parties as expressed herein. This Agreement shall be
construed according to its fair meaning, with the language used herein deemed to
be the language chosen by the parties to express their mutual intent, and no
presumption or rule of strict construction shall be applied against any party
hereto.
3.13 PREAMBLE AND RECITALS. The Parties acknowledge the accuracy and
correctness of the preamble and recitals hereto and such preamble and recitals
are hereby incorporated by reference as if set forth herein at length.
3.14 CAPITALIZED TERMS. Any capitalized terms not defined herein shall
have the meaning given them in the Master Agreement.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK
SIGNATURE PAGE TO FOLLOW
IN WITNESS WHEREOF, the Company, AWK and the VisionComm Shareholders have
executed and delivered this Agreement as of the date first above written.
ANOTHER WORLD, INC. CHEQUEMATE INTERNATIONAL INC.
By: ___________________________ By:_________________________________
Name: Name:
VISIONCOMM SHAREHOLDERS
_______________________________ ____________________________________
NAME: XXXXXXX X. XXXXXXXXXX NAME: XXXXXX X. XXX
_______________________________ ____________________________________
NAME: XXXXXXXX X. XXXX NAME: XXXXX XXX XXXXXX-XXXXXXXXXX
_______________________________ ____________________________________
NAME: XXXXX X. XXXXXX NAME: XXXXX XXXXXXXXX, XX.
