EXHIBIT 10.49
AGREEMENT
THIS AGREEMENT is among is among COMMERCIAL CONSOLIDATORS CORP., a
corporation organized under laws of the Province of Alberta, Canada (hereinafter
referred to as the "Company"), having its principal executive offices located at
0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxx X0X 0X0; and SUMMIT TRADING LIMITED, an
international business corporation (hereinafter referred to as "Summit") with
its principal office at Charlotte House, Charlotte Street, Nassau, Bahamas, as
the Financing Agent;
WHEREAS, as of January 5, 2002, the Company has entered into an
agreement (the "Consulting Agreement") with Investor Relations Services, Inc.
(the "Consultant") to provide the Company with a variety of investor and public
relations services designed to make the investing public knowledgeable about the
benefits of stock ownership in the Company; and
WHEREAS, the Consultant has assigned to Summit all of Consultant's
rights to receive the Stock consideration contemplated by the Consulting
Agreement; and
WHEREAS, the Company requires, as a condition to registering shares of
its Stock (as that term is defined in the Consulting Agreement), in the name of
Summit, that Summit execute and deliver to the Company a copy of this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the receipt and sufficiency of which is hereby acknowledged,
the parties agree as follows:
1. Relationship Among the Parties.
Summit acknowledges that it is not an agent of the Company, it is not,
and will not, be responsible for any management decisions on behalf of the
Company, and may not commit or bind the Company to any action whatsoever. The
Company represents that the Summit does not have, through stock ownership or
otherwise, the power to control the Company, nor to exercise any dominating
influences over its management.
2. Investment Representation.
(a) The Company represents and warrants that it has made
available to Summit all copies of the Company's filings for the prior twelve
(12) months, if any, (the "Disclosure Documents") made under the rules and
regulations promulgated under the Act, as amended, or the Exchange Act, as
amended. Summit acknowledges that the acquisition of the securities to be issued
to Summit involves a high degree of risk. Summit represents that it and its
advisors have been afforded the opportunity to discuss the Company with its
management. The Company will promptly notify Summit upon the filing or any
registration statement or other periodic reporting documents filed pursuant to
the Act or the Exchange Act.
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(b) Summit represents that neither it nor its officers,
directors, or employees is not subject to any disciplinary action by either the
National Association of Securities Dealers or the Securities and Exchange
Commission by virtue of any violations of their rules and regulations and that
to the best of its knowledge neither is its affiliates nor subcontractors
subject to any such disciplinary action.
(c) If required by United States law or regulation, Summit
will take necessary steps to prepare and file any necessary forms to comply with
the transfer of the shares of stock from Company to Summit, including, if
required, form 13(d).
(d) By its receipt and acceptance hereof, Summit hereby
acknowledges: (i) that the Stock is not being registered (A) under the
Securities Act of 1933, as amended (the "Act"), in reliance on the exemption
from the registration requirements of the Act provided under Section 4(2) of the
Act, or (B) under any applicable state securities or "blue sky" laws in reliance
on similar exemptions under such laws; and (ii) that the Company's reliance on
such exemptions from the registration requirements of the Act and applicable
state securities or "blue sky" laws is predicated in part on the representations
hereby made to the Company by Summit that it is acquiring the Stock for
investment for its own account, with no present intention of dividing its
participation with others or reselling or otherwise distributing the same.
(e) By its receipt and acceptance hereof, Summit hereby agrees
that, so long as the Stock is not covered by an effective registration statement
under the Act, it will not sell or transfer all or any part of the Stock unless
and until it shall have (i) given notice to the Company describing such sale or
transfer, and (ii) furnished to the Company either (A) an opinion, reasonably
satisfactory to counsel for the Company, of counsel (skilled in securities
matters, selected by Summit and reasonably satisfactory to the Company) to the
effect that the proposed sale or transfer may be made without registration under
the Act and without registration or qualification under any state law, or (B) an
interpretive letter from the Securities Exchange Commission ("SEC") to the
effect that no enforcement action will be recommended if the proposed sale or
transfer is made without registration under the Act.
(f) The Company may refuse to recognize a transfer of the
Stock on its books should a Payee attempt to transfer the Stock otherwise than
in compliance with this Section 2.
(g) The only record and beneficial owners of more than 10% of
the shares of capital stock of Summit is The Xxxxx Family Trust, a Bahamian
trust created for the benefit of Xxxxxxx Xxxxxx and members of his family or
other designees, with Private Trust Company (Bahamas), as trustee.
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3. Registration of Securities and Liquidated Damages.
(a) The Company hereby acknowledges that, to the extent that
it is legally permitted to do so under the U.S. Securities laws, time shall be
of the essence with respect to removal of the 144 restriction legend from the
Stock. Unless there shall be a current registration statement in effect covering
shares of such Stock, in the event the legend is not removed thirty (30) days
after written demand is made following the expiration of one year from the date
of issuance of such Stock, the Company agrees to issue either an additional
number of shares equal to ten percent (10%) of the total number of shares of
such Stock for each additional thirty (30) day delay in removing any Rule 144
legend, or the cash equivalent of such additional shares. In the event of a
delay of less than a full thirty (30) day period, Summit shall be entitled to a
pro-rata allocation of additional shares.
(b) Summit understands and acknowledges that the shares of
common stock are being acquired by Summit for its own account, and not on behalf
of any other person, and are being acquired for investment purposes and not for
distribution. Summit represents that the common stock will be a suitable
investment for Summit, taking into consideration the restrictions on
transferability affecting the common stock.
(c) The Company will undertake to comply with the various
states' securities laws with respect to the registration of the Stock referred
to herein. Company undertakes to make available for review and comment, on a
timely basis and prior to submission to any regulatory agency, copies of the
registration statement.
4. Miscellaneous Provisions.
Section a Time. Time is of the essence of this Agreement.
Section b Presumption. This Agreement or any section thereof
shall not be construed against any party due to the fact that said Agreement or
any section thereof was drafted by said party.
Section c Computation of Time. In computing any period of time
pursuant to this Agreement, the day of the act, event or default from which the
designated period of time begins to run shall be included, unless it is a
Saturday, Sunday or a legal holiday, in which event the period shall begin to
run on the next day which is not a Saturday, Sunday or a legal holiday, in which
event the period shall run until the end of the next day thereafter which is not
a Saturday, Sunday or legal holiday.
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Section d Titles and Captions. All article, section and
paragraph titles or captions contained in this Agreement are for convenience
only and shall not be deemed part of the context nor affect the interpretation
of this Agreement.
Section e Pronouns and Plurals. All pronouns and any variations
thereof shall be deemed to refer to the masculine, feminine, neuter, singular or
plural as the identity of the Person or Persons may require.
Section f Further Action. The parties hereto shall execute and
deliver all documents, provide all information and take or forbear from all such
action as may be necessary or appropriate to achieve the purposes of this
Agreement.
Section g Good Faith, Cooperation and Due Diligence. The
parties hereto covenant, warrant and represent to each other good faith,
complete cooperation, due diligence and honesty in fact in the performance of
all obligations of the parties pursuant to this Agreement. All promises and
covenants are mutual and dependent.
Section h Savings Clause. If any provision of this Agreement,
or the application of such provision to any person or circumstance, shall be
held invalid, the remainder of this Agreement, or the application of such
provision to persons or circumstances other than those as to which it is held
invalid, shall not be affected thereby.
Section i Assignment. This Agreement may not be assigned by
either party hereto without the written consent of the other, but shall be
binding upon the successors of the parties.
Section j Arbitration.
i. If a dispute arises out of or relates to this Agreement, or the
breach thereof, and if said dispute cannot be settled through direct discussion,
the parties agree to first endeavor to settle the dispute in an amicable manner
by mediation under the Commercial Mediation Rules of the American Arbitration
Association before resorting to arbitration. Thereafter, any unresolved
controversy or claim arising out of or relating to this Agreement or a breach
thereof shall be settled by arbitration in accordance with the rules of the
American Arbitration Association, and judgment upon the award rendered by the
Arbitrator may be entered in any court having jurisdiction thereof.
ii. Any provisional remedy, which would be available from a court of
law, shall be available to the parties to this Agreement from the Arbitrator
pending arbitration.
iii. The situs of the arbitration shall be Volusia County, Florida.
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iv. In the event that a dispute results in arbitration, the parties
agree that the prevailing party shall be entitled to reasonable attorneys fees
to be fixed by the arbitrator.
Section k Notices. All notices required or permitted to be
given under this Agreement shall be given in writing and shall be delivered,
either personally or by express delivery service, to the party to be notified.
Notice to each party shall be deemed to have been duly given upon delivery,
personally or by courier (such as Federal Express or similar express delivery
service), addressed to the attention of the officer at the address set forth
heretofore, or to such other officer or addresses as either party may designate,
upon at least ten (10) days' written notice, to the other party.
Section l Governing law. The Agreement shall be construed by
and enforced in accordance with the laws of the State of Florida.
Section m Entire agreement. This Agreement contains the entire
understanding and agreement among the parties. There are no other agreements,
conditions or representations, oral or written, express or implied, with regard
thereto. This Agreement may be amended only in writing signed by all parties.
Section n Waiver. A delay or failure by any party to exercise a
right under this Agreement, or a partial or single exercise of that right, shall
not constitute a waiver of that or any other right.
Section o Counterparts. This Agreement may be executed in
duplicate counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same Agreement. In the event that
the document is signed by one party and faxed to another the parties agree that
a faxed signature shall be binding upon the parties to this agreement as though
the signature was an original.
Section p Successors. The provisions of this Agreement shall be
binding upon all parties, their successors and assigns.
Section q Counsel. The parties expressly acknowledge that each
has been advised to seek separate counsel for advice in this matter and has been
given a reasonable opportunity to do so.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement to be effective as of the day and year provided herein.
COMPANY: CONSULTANT:
COMMERCIAL CONSOLIDATORS CORP. SUMMIT TRADING LIMITED
By: By:
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