AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into this 17th f
November, 1997, by and among XXXXXX GROUP, INC., a Delaware corporation
("Xxxxxx"), HIREL HOLDINGS, INC., a Delaware corporation ("Hirel") and HIREL
MARKETING, INC., a Florida corporation ("Marketing").
W I T N E S S E T H:
WHEREAS, Xxxxxx is engaged in negotiations to acquire all of the issued
and outstanding shares of UNITED INFORMATION SYSTEMS, INC., a Florida
corporation, and UIS INDUSTRIAL LTDA, a Brazilian corporation (collectively
hereinafter referred to as "UIS"); and
WHEREAS, Hirel, for itself and its wholly-owned subsidiary, Marketing, had
previously engaged in substantial negotiations with UIS in connection with the
proposed acquisition by Hirel, Marketing or their assigns of UIS; and
WHEREAS, UIS has advised Hirel that in lieu of proceeding with the
proposed transaction with Hirel, UIS intends to enter into a transaction with,
and be acquired by, Xxxxxx; and
WHEREAS, in exchange for the "Xxxxxx Stock" (as hereinafter defined),
Hirel has agreed to release Xxxxxx and UIS from and against any and all rights
or claims Hirel may have with respect to its proposed acquisition of UIS.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to be
legally bound, hereby agree as follows:
1. RECITALS. The foregoing recitals are true and correct and are
incorporated herein by this reference.
2. XXXXXX STOCK. Simultaneous with the closing by Xxxxxx with its
proposed acquisition of UIS, and in exchange for the general release from Hirel
and Marketing pursuant to Section 3 hereof, Xxxxxx shall pay to Hirel the sum of
$80,000, payable by issuance to Hirel of 200,000 shares of the common stock of
Xxxxxx, par value .001 ("Xxxxxx Stock"). The Xxxxxx Stock shall not be
registered as of the date of transfer, but shall be subject to registration as
hereafter provided. Hirel is entitled to registration rights, including
piggyback registration rights, for the Xxxxxx Stock when Xxxxxx proposes to file
a registration statement under the Securities Act of 1933, as amended, with
respect to an offering for its own account of any class of security (other than
in connection with a merger pursuant to a Form S-3) or for the account of
Xxxxxx'x shareholders. Xxxxxx will bear all expenses of such registration.
Xxxxxx agrees to file a registration statement not later than January 1, 1998.
In addition to the foregoing, and in recognition of the substantial legal fees
and costs incurred by Hirel in connection with its extended negotiations and
efforts with UIS, Xxxxxx shall also issue to Xxxxx, McClosky, Smith, Xxxxxxxx &
Xxxxxxx, P.A., counsel for Hirel, on behalf of and for the benefit of Hirel,
10,000 shares of the common stock of Xxxxxx, which is agreed to to have a value
of $4,000 (which shares, for all purposes hereunder, shall be included within
the definition of Xxxxxx Stock).
3. HIREL AND MARKETING GENERAL RELEASE AND COOPERATION. Hirel and
Marketing hereby acknowledge and agree that they have no rights with respect to
the acquisition of UIS. Hirel and Marketing hereby agree to provide to Xxxxxx
all information they have acquired with respect to the assets and operations of
UIS. Hirel and Marketing hereby remise, release, acquit, satisfy, and forever
discharge Xxxxxx and UIS of and from all, and all manner of action and actions,
cause and causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, executions,
claims and demands whatsoever, in law or in equity, which Hirel or Marketing
ever had, now has, or which any successor or assign of Hirel or Marketing,
hereafter can, shall or may have, against Xxxxxx or UIS, for, upon or by reason
of any matter, cause or thing whatsoever, from the beginning of the world to the
day of these presents.
4. XXXXXX GENERAL RELEASE. Xxxxxx hereby remises, releases, acquits,
satisfies, and forever discharges Hirel and Marketing of and from all, and all
manner of action and actions, cause and causes of action, suits, debts, dues,
sums of money, accounts, reckonings, bonds, bills, specialties, covenants,
contracts, controversies, agreements, promises, variances, trespasses, damages,
judgments, executions, claims and demands whatsoever, in law or in equity, which
Xxxxxx ever had, now has, or which any successor or assign of Xxxxxx, hereafter
can, shall or may have, against Hirel or Marketing, for, upon or by reason of
any matter, cause or thing whatsoever, from the beginning of the world to the
day of these presents.
5. NOTICES. All notices, demands and other communications given
hereunder shall be in writing and shall be deemed to have been duly given (a)
upon hand delivery thereof, (b) upon telefax and written confirmation of
receipt, (c) upon receipt of any overnight deliveries, or (d) on the third (3rd)
business day after mailing United States registered or certified mail, return
receipt requested, postage prepaid, to the addresses set forth below their
respective signatures, or to such other address or to such other person as any
party shall designate to the others for such purposes in the manner hereinabove
set forth.
6. FURTHER ASSURANCES. The parties will execute and deliver such
further instruments and do such further acts and things as may be required to
carry out the intent and purposes of this Agreement.
7. SUCCESSORS AND ASSIGNS. This Agreement and any amendments hereto
shall be binding upon and, to the extent expressly permitted by the provisions
hereof, shall inure to the benefit of the parties, their respective successors
and assigns.
8. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida. This Agreement is intended to
be performed in accordance with, and only to the extent permitted by, all
applicable laws, ordinances, rules, and regulations of the jurisdiction in which
the Partnership does business.
9. ENTIRE AGREEMENT. This Agreement sets forth all (and is intended by
all parties hereto to be an integration of all) of the promises, agreements,
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conditions, understandings, warranties and representations among the parties
hereto with respect to the Partnership, the Partnership business and the
Partnership assets, and there are no promises, agreements, conditions,
understandings, warranties or representations, oral or written, express or
implied, except as set forth herein. In the event of any conflict between the
terms of this Agreement and the Shareholders Agreement, the terms of the
Shareholders Agreement shall govern.
10. COUNTERPARTS. This Agreement and any amendments hereto may be
executed in counterparts, each of which shall be deemed an original, and such
counterparts shall constitute but one and the same instrument.
11. GENDER. Whenever the context requires, any pronoun used herein may
be deemed to mean the corresponding masculine, feminine or neuter in form
thereof and the singular form of any nouns and pronouns herein may be deemed to
mean the corresponding plural and vice versa as the case may require.
12. ARBITRATION. Any controversy, dispute, disagreement or claim arising
out of or related to any provision of this Agreement, or any alleged breach of
provisions relating thereto, other than with respect to any provision hereunder
for which injunctive or other equitable relief is specifically provided for
hereunder, shall be settled exclusively by binding arbitration, which shall be
conducted in Palm Beach County, Florida before a panel of three arbitrators in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association as in effect from time to time, except as modified by the agreement
of all of the parties to this Agreement. The arbitrator(s) shall use their best
efforts to conduct the arbitration so that a final result, determination,
finding, judgment and/or award (the "Final Determination") is made or rendered
no later than ninety (90) business days after the delivery of the notice of
arbitration nor later than twenty (20) days following conclusion of the
arbitration hearing. The Final Determination must be signed by the arbitrator.
The Final Determination shall be final and binding on all parties and there
shall be no appeal from or reexamination of the Final Determination, except for
fraud, perjury, evident partiality or misconduct by an arbitrator prejudicing
the rights of any party and to correct manifest clerical errors. The parties to
such arbitration may enforce any Final Determination in any state or federal
court having jurisdiction over the dispute.
13. REMEDIES. Each of the parties acknowledge and agree that in the
event that a party hereto shall violate any of the restrictions or fail to
perform any of the obligations hereunder, the other parties will be without
adequate remedy at law and will therefore be entitled to enforce such
restrictions or obligations by temporary or permanent injunctive or mandatory
relief obtained in an action or proceeding instituted in any court of competent
jurisdiction without the necessity of proving damages and without prejudice to
any other remedies it may have at law or in equity.
14. NO THIRD PARTY BENEFICIARY. This Agreement is made solely and
specifically among and for the benefit of the parties hereto, and their
respective successors and assigns subject to the express provisions hereof
relating to successors and assigns, and no other person shall have any rights,
interest or claims hereunder or be entitled to any benefits under or on account
of this Agreement as a third party beneficiary or otherwise; provided, however,
that the provisions of Section 3 hereof shall inure to the benefit of UIS.
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15. NO RECORDATION. Neither this Agreement nor any memorandum thereof
shall be recorded amongst the public records of any governmental authority
without the prior written consent of all of the parties hereto.
16. TIME OF THE ESSENCE. Time is of the essence as to all time periods
set forth in this Agreement.
IN WITNESS WHEREOF, the parties hereto have made and entered into this
Agreement as of the date first above written.
XXXXXX GROUP, INC.
By: /s/ Amgus Hay
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Address: 0000 Xxxxxxxxx Xxxxxxxxx
Xxxxx 000 Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
HIREL HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Address: 000 X.X. 00xx Xxxxxxx
Xxxxxxx Xxxxx, XX 00000
Attention: President
HIREL MARKETING, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Address: 000 X.X. 00xx Xxxxxxx
Xxxxxxx Xxxxx, XX 00000
Attention: President
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