Exhibit 10.31
MASTER DISTRIBUTION AGREEMENT
between
eSAFETYWORLD, Inc.
(a Nevada corporation)
as Transferor,
and
BLUE MARBLE WORLD, INC.
(a Nevada corporation)
as Transferee
[ ], 2001
SEPARATION AND DISTRIBUTION AGREEMENT
SEPARATION AND DISTRIBUTION AGREEMENT (this "Agreement") made effective as
of the [ ] day of [ ], 2001 (the "Effective Date") by and between eSAFETYWORLD,
Inc., a Nevada corporation ("Transferor"), and Blue Marble World, Inc.., a
Nevada corporation ("Transferee"). Transferor and Transferee are sometimes
individually referred to as a "Party" and collectively referred to as the
"Parties."
WHEREAS, Transferee is a wholly-owned subsidiary of Transferor;
WHEREAS, Transferee and Transferor are in diverse businesses and have
determined that it is in the best interests of the future development of each of
their businesses if they were operated as separate entities;
WHEREAS, in order to effect the separation of the businesses, Transferor
has determined to distribute as a dividend to the public shareholders of its
common stock 6,000,000 shares of the capital stock that Transferor holds in
Transferee; and
NOW, THEREFORE, in consideration of the premises and of the mutual
promises and covenants made in this Agreement and in reliance upon the
representations and warranties made in this Agreement, Transferor and
Transferee, intending to be legally bound, hereby agree as follows:
DEFINITIONS ARTICLE
As used in this Agreement, the following terms, when capitalized, shall
have the respective meanings set forth in this Definition Article. Other
capitalized terms used in this Agreement are defined elsewhere in the text of
this Agreement.
1. "Contract" shall mean any contract, agreement, lease, license, sales
order, purchase order, instrument or other commitment that is binding on any
Person or any part of its property under applicable law.
2. "Separation Date" means the Effective Date of this Agreement.
ARTICLE REGARDING DISTRIBUTION AND SPIN-OFF
The Parties understand and agree that:
1. It is in the best interests of the future development of each of their
respective businesses if the business of Transferor and the business of
Transferor were operated as independent, separate businesses;
2. The business of Transferor and the business of Transferor be separated
pursuant to a spin-off by Transferor of Transferor's business, all as described
in this Agreement;
3. Each public stockholder of Transferor will receive two shares of
Transferee's common stock for every share of Transferor's common stock held (the
"Dividend");
4. The record date for the distribution will be the close of business on
______, 2001; and
5. No fractional shares of Transferee's common stock will be distributed.
ARTICLE I
TRANSFER OF ASSETS; ASSUMED OBLIGATIONS
1.1 TRANSFER OF ASSETS.
(a) Transferred Assets. Upon the terms and subject to the conditions
contained in this Agreement, on the Closing Date (defined in Section 2.1(a)
below), Transferor will assign, transfer and deliver to Transferee, and
Transferee will accept from Transferor all of Transferor's right, title and
interest in and to all of the properties and assets, tangible
and intangible, of every kind, nature and description (other than cash and cash
equivalents), wherever located, owned or held by Transferor (in whole or in
part) on the Closing Date and used solely in connection with Transferor's
business (hereinafter sometimes collectively referred to as the "Assets"). Such
Assets shall include and consist of all assets set forth on the Transferee's
balance sheet attached hereto as Exhibit 1.
(b) Excluded Assets. Notwithstanding anything in this Agreement to the
contrary, Assets shall not include Transferee's cash or cash equivalents.
1.2 ASSUMED OBLIGATIONS. Transferee shall assume all of the liabilities set
forth on the Balance Sheet included as Exhibit 1 including a liability due to
eSAFETYWORLD of _____. The liability to eSAFETYWORLD shall be paid from 50% of
the proceeds of any capital infusion received from any source subsequent to the
spinoff. If the balance due to eSAFETYWORLD is not repaid in full by June 30,
2002, the remaining unpaid balance shall be paid, without interest, in 12 equal
monthly installments commencing on July 31, 2002. If Transferee is unable to pay
the balance by July 31, 2003, the unpaid balance may, at Transferor's option, be
converted into shares of Transferee's common stock at a price per share equal to
the closing average bid price of such shares during the first 20 days of
trading, If Transferor converts its obligation at any point after July 31, 2003,
it shall have demand registration rights with respect to the shares received
upon conversion. Transferee shall pay all registration costs.
1.3 PAYMENT OF PURCHASE PRICE. The purchase price for the Assets shall be
the assumption of all of the liabilities incurred by Transferor in connection
with the Business or with respect to the Assets (other than the Excluded Assets,
as defined in Section 1.1(b), above) of every kind, nature and description, and
the issuance of the Dividend.
ARTICLE II
CLOSING; ABSOLUTE SALE
2.1 CLOSING.
(a) Time and Place. Subject to the fulfillment of the conditions
precedent set forth in Article X, below, the transactions contemplated by this
Agreement shall be consummated and closed (the "Closing") at the offices of
eSAFETYWORLD, Inc., 00 Xxxxxxx Xxxxx, Xxxxxxx, XX 00000 at 10:00 a.m. (New York
City time) on ______, 2001 (the "Closing Date"). The Closing may occur at such
later or earlier time or such other place as the Parties hereto agree in
writing.
(b) Delivery of Instruments. At the Closing:
(i) Transferor's Closing Documents. Transferor will deliver or cause to
be
delivered to Transferee the following documents (collectively referred to as
"Transferor's Closing Documents"):
(1) Xxxx of Sale
(2) Assignment of Rights
(3) Resolutions of Transferor. A true and complete copy of the resolutions
of Transferor by which the execution, delivery and performance of this Agreement
and Transferor's Closing Documents were authorized, and a list of Transferor's
officers (and their titles) incumbent as of the date hereof, each certified by
the Secretary of Transferor as of the date hereof, and all other certificates,
consents, approvals and documentary evidence, if any, required to be delivered
pursuant to this Agreement; and
(ii) Transferee's Closing Documents. Transferee will deliver or cause to be
delivered to Transferor the following documents (collectively referred to as
"Transferee's Closing Documents"):
(1) Assumption and Acceptance.
(2) Resolutions of Transferee's Board. A true and complete copy of the
resolutions of Transferee's Board of Directors by which the execution, delivery
and performance of this Agreement and Transferee's Closing Documents were
authorized, certified by the Secretary or Assistant Secretary of Transferee as
of the date hereof, and all other certificates, consents, approvals and
documentary evidence, if any, required to be delivered pursuant to this
Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES BY TRANSFEROR
Transferor hereby represents, warrants and covenants to Transferee with
respect to Transferor or the Business, as the case may be, that:
3.1 ORGANIZATION AND GOOD STANDING. Transferor is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Nevada, and has the power and authority to own the Assets and to conduct the
Business as such business is being conducted as at the Closing Date. Transferor
is duly qualified to do business and is in good standing in the states where
necessary to operate the Business.
3.2 AUTHORIZATION; COMPLIANCE WITH OTHER INSTRUMENTS AND LAW. Transferor
has full power and authority to enter into this Agreement and Transferor's
Closing Documents, to consummate the transactions contemplated hereby and
thereby and to perform their respective obligations hereunder and thereunder.
The execution, delivery of and performance of this Agreement and Transferor's
Closing
Documents and the consummation of the transactions contemplated hereby and
thereby have been duly authorized by all necessary corporate action on the part
of Transferor. This Agreement has been duly executed and delivered by Transferor
and is a valid and binding obligation of Transferor enforceable in accordance
with their respective terms, except as enforcement may be limited by the effect
of all applicable bankruptcy, fraudulent conveyance, reorganization, insolvency,
moratorium or similar laws at any time generally in effect with respect to the
enforcement of creditors' rights, and by the principles of equity. The
execution, delivery of and performance of this Agreement and Transferor's
Closing Documents will not result in a violation of any provision of the
Articles of Organization of Transferor or of any provision of any material
agreement or instrument of Transferor (including, without limitation, its
bylaws) or to which Transferor is a party or by which Transferor or the Assets
is bound, or of any law, regulation, judgment, order or decree of any court or
governmental authority to which Transferor is a party or by which Transferor or
the Assets is bound or to which it is subject. All necessary authorizations of
the transactions contemplated by this Agreement required to be obtained by
Transferor from any federal, state, local or foreign government or agency shall
have been obtained prior to the Closing, and any filings, notifications or
disclosures required by law or by regulation of such government or agency shall
have been made in such form as is acceptable as filed or as may be amended. No
approval of shareholders of Transferor is required by the Articles of
Organization of Transferor in connection with the transactions contemplated by
this Agreement.
3.3 TAX MATTERS. Except for current period taxes or assessments not yet
payable, as of the date hereof there are no tax, including social security and
withholding tax, obligation of Transferor which constitutes, or may thereafter
constitute, a lien on the Assets, and, if such lien exists or arises, it will be
discharged promptly by Transferor. Transferor has not received a notice of
proceedings or other action pending for the purpose of assessing or collecting
additional taxes of any kind from Transferor for any period for which returns
have been filed by Transferor, the result of which if adverse to Transferor
would constitute a lien on the Assets and, if such lien arises, it will be
discharged promptly by Transferor.
3.4 LITIGATION AND OTHER CLAIMS.
(A) PENDING AND THREATENED LITIGATION. Except as set forth in Exhibit 2, as
of the date hereof there are no actions, suits, claims (including products
liability claims) or proceedings (a) pending or, (b) to the best knowledge of
Transferor, threatened, before any foreign, federal, state, municipal or other
governmental court, department, commission, board, bureau, agency, body or
instrumentality against Transferor or affiliate of Transferor or affecting the
Assets, at law or in equity, which, if determined adversely to Transferor, net
of insurance, would have a material adverse effect on the Assets or the
Business. Transferor is not a party to or subject to the provisions of any
written order, writ, injunction, decree or judgment with respect to the Assets
of any court or foreign, federal, state, municipal or other governmental or
administrative body, department, commission, board, bureau, any securities
exchange or other agency or instrumentality.
(B) LITIGATION WITH RESPECT TO THIS AGREEMENT. Transferor is not a party
to, nor, has it been threatened with, any litigation or proceeding or written
claim which seeks to restrain or prohibit the transactions contemplated by this
Agreement.
(C) GOVERNMENTAL NOTICE OF VIOLATION IN RESPECT OF THE AGREEMENT.
Transferor has not received from any federal, state, local or foreign
governmental agency or authority notice that consummation of the transactions
contemplated by this Agreement would constitute a violation of any applicable
law, regulation or ordinance.
3.5 COMPLIANCE WITH LAWS. Transferor has not received any written notice
asserting any noncompliance by it with, nor to Transferor's knowledge, is there
any basis for any assertion that, it is not in material compliance with, any
applicable law (including environmental laws), statute, rule or regulation,
federal, state or local, or any agency thereof, having jurisdiction over it,
which non-compliance relates to the Assets or to Transferor's ownership or
possession of the Assets.
3.6 FINDER'S FEE. Transferor has not incurred any obligation of any kind
whatsoever to any party for any broker's or finder's fee in connection with the
transactions contemplated by this Agreement.
3.7 INTELLECTUAL PROPERTY. Except as listed on Exhibit 3, there are no
trade names, patents, trademarks or copyrights, and no applications to register
any of the foregoing, owned or licensed by Transferor and used by Transferor as
of the date hereof and material to the conduct of the Business. Transferor has
not received any actual notice or claim from any third party that it infringes
upon or conflicts with the property right of any third party, and, to the
knowledge of Transferor, no third party infringes any intellectual property
rights of Transferor.
3.8 EMPLOYMENT CONTRACTS AND OTHER PLANS. Except as disclosed on Exhibit 4,
Transferor does not have any obligation with respect to any fringe benefit
arrangement, any deferred compensation plan, bonus plan, stock option plan,
employee stock purchase plan, incentive compensation plan, executive
compensation plan, agreement, arrangement, or commitment to provide compensation
which is not an ERISA Plan (other than normal payroll policies concerning
holidays, vacations, and compensation continuation during short absences for
illness, approved or legally mandated leaves of absences, or for other reasons).
3.9 DISCLOSURE. No representation or statement made by Transferor in this
Article III, nor any representation or statement made by Transferor in any
schedule with respect thereto, contains, as of the date hereof any untrue
statement of a material fact, or omits to state a material fact necessary to
make the statements therein not false or misleading, which untrue statement or
omission could have a materially adverse effect on the Assets or the Assumed
Obligations after the Closing Date.
3.10 EFFECTIVE DATE OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties contained in this Article III are true in all respects as made on
the date hereof. The representations and warranties contained in this Article
III will be true in all material respects on the Closing Date as if made
thereon.
3.11 WARRANTY DISCLAIMER. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES
EXPRESSLY SET FORTH IN THIS ARTICLE III, TRANSFEROR MAKES NO REPRESENTATION OR
WARRANTY, EXPRESS OR IMPLIED, AT LAW OR IN EQUITY, IN RESPECT OF THE BUSINESS OR
ANY OF ITS ASSETS, ASSUMED OBLIGATIONS OR OPERATIONS, OR THE TRANSACTIONS
CONTEMPLATED HEREBY, INCLUDING ANY IMPLIED REPRESENTATION OR WARRANTY AS TO THE
CONDITION, MERCHANTABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF
THE ASSETS, AND TRANSFEROR EXPRESSLY DISCLAIMS ANY SUCH REPRESENTATION OR
WARRANTY.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES BY TRANSFEREE
Transferee hereby represents, warrants and covenants to Transferor that:
4.1 ORGANIZATION AND GOOD STANDING. Transferee is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Nevada. On the Closing Date, Transferee will have full corporate authority and
power to own the Assets.
4.2 AUTHORIZATION; COMPLIANCE WITH OTHER INSTRUMENTS AND LAW. Transferee
has full power and authority to enter into this Agreement, and Transferee's
Closing Documents, to consummate the transactions contemplated hereby and
thereby and to perform its obligations hereunder and thereunder. The execution,
delivery of and performance of this Agreement and Transferee's Closing Documents
and the consummation of the transactions contemplated hereby and thereby have
been duly authorized by all necessary action on the part of Transferee. This
Agreement has been duly executed and delivered by Transferee and is a valid and
binding obligation of Transferee enforceable in accordance with their respective
terms, except as enforcement may be limited by the effect of all applicable
bankruptcy, fraudulent conveyance, reorganization, insolvency, moratorium or
similar laws at any time generally in effect with respect to the enforcement of
creditors' rights, and by the principles of equity. The execution, delivery and
performance of this Agreement, the Ancillary Agreements and Transferee's Closing
Documents will not result in a violation of the Certificate of Incorporation or
By-laws of Transferee or of any provision of any material agreement or
instrument of Transferee or to which Transferee is a party or of any law,
regulation, judgment, order or decree of any court or governmental authority to
which Transferee is a party or by which Transferee is bound or to which it is
subject. All necessary authorizations of the transactions contemplated by this
Agreement required to be
obtained by Transferee from any federal, state, local or foreign government or
agency shall have been obtained prior to the Closing, and any filings,
notifications or disclosures required by law or by regulation of such government
or agency shall have been made in such form as is acceptable as filed or as may
be amended. No approval of the stockholders of Transferee is required by the
Certificate of Incorporation or By-laws of Transferee in connection with the
transactions contemplated by this Agreement.
4.3 LITIGATION AND OTHER CLAIMS.
(A) PENDING AND THREATENED LITIGATION. There are no actions, suits, claims
(including products liability claims) or proceedings pending or, to the best
knowledge of Transferee, threatened, before any foreign, federal, state,
municipal or other governmental court, department, commission, board, bureau,
agency, body or instrumentality against Transferee or affecting any of its
property or assets at law or in equity, which, if determined adversely to
Transferee, net of insurance, would have a material adverse effect on the
performance by Transferee of its obligations under or pursuant to this Agreement
or Transferee's Closing Documents.
(B) LITIGATION WITH RESPECT TO THE AGREEMENT. Transferee is not a party to,
nor, to its best knowledge, has it been threatened with any litigation or
proceeding which seeks to restrain or prohibit the transactions contemplated by
this Agreement.
(C) GOVERNMENTAL NOTICE OF VIOLATION IN RESPECT OF THE AGREEMENT.
Transferee has not received from any federal, state, local or foreign
governmental agency or authority notice that consummation of the transactions
contemplated by this Agreement would constitute a violation of any applicable
law, regulation or ordinance.
4.4 FINDER'S FEE. Transferee has not incurred any obligation of any kind
whatsoever to any party for any broker's or finder's fee in connection with the
transactions contemplated by this Agreement.
4.5 DISCLOSURE. No representation or statement made by Transferee in
Article IV of this Agreement contains as of the date hereof any untrue statement
of a material fact, or omits to state a material fact necessary to make the
statements therein not misleading.
4.6 EFFECTIVE DATE OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties contained in this Article IV are true on the date hereof and will
be true on the Closing Date as if made thereon.
ARTICLE V
ARBITRATION
5.1 ARBITRATION. This Agreement, and all transactions contemplated hereby,
shall be governed by, construed and enforced in accordance with the laws of the
State of New York. Any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, shall be resolved by arbitration in accordance
of the rules of the American Arbitration Association , and judgment upon the
award rendered by the arbitrator(s) shall be entered in any court having
jurisdiction thereof. For that purpose, the parties hereto consent to the
jurisdiction and venue of an appropriate court located in Suffolk County, State
of New York. In the event that arbitration results from or arises out of this
Agreement or the performance thereof or litigation to enforce any award entered
therein, the parties agree to reimburse the prevailing party's reasonable
attorney's fees, court costs, and all other expenses, whether or not taxable by
the court as costs, in addition to any other relief to which the prevailing
party may be entitled. In the event of any such claim or controversy, no action
shall be entertained by said arbitration if initiated more than one year
subsequent to the date the cause(s) of action actually accrued regardless of
whether damages were otherwise as of said time calculable.
ARTICLE VI
MISCELLANEOUS
6.1 BINDING EFFECT. Except as otherwise provided in this Section 6.1, this
Agreement shall be binding upon and inure to the benefit of the Parties hereto
and their respective successors and permitted assigns.
6.2 NO ASSIGNMENT. Except as expressly provided in this Agreement, this
Agreement may not be assigned by either Party hereto without the prior written
consent of the other Party. Any attempted or purported assignment by either
Party, other than in accordance with this Section 6.2, shall be null and void
and of no force or effect.
6.3 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This Agreement may be
delivered by delivery of facsimile signatures.
6.4 INVALIDITY. In the event that any one or more of the provisions
contained in this Agreement, or in any other instrument referred to herein,
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision of this Agreement or any other such instrument, except that this
Agreement shall not be reformed in any way if such reformation will deny to
either Party the essential benefits of this Agreement, unless the benefited
Party waives in writing its right to such benefits. In the event that such
reformation is not undertaken as provided herein, the Parties shall place
themselves as closely as practicable in the positions they were in immediately
prior to the Closing Date.
6.5 SURVIVAL. The representations, warranties, indemnities and agreements
of the Parties to this Agreement shall survive the Closing for a period of one
(1) year. The period of limitations set forth above shall be in lieu of all
statutes of limitations otherwise applicable having a duration of more than that
period.
6.6 NOTICES. All notices required to be given under the terms of this
Agreement or which either of the Parties desires to give hereunder shall be in
writing and personally delivered or sent by certified mail, return receipt
requested, addressed as follows:
(a) IF TO TRANSFEREE:
Blue Marble World, Inc.
00 Xxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: President
(b) IF TO TRANSFEROR:
eSAFETYWORLD, Inc.
00 Xxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Chairman
Any Party may designate a change in address at any time upon written
notice to the other Party.
6.7 NO THIRD-PARTY BENEFICIARIES. Notwithstanding anything to the contrary
contained in this Agreement, no provision of this Agreement is intended to
benefit any person other than the signatories hereto or their permitted assigns,
nor shall any such provision be enforceable by any such other person.
6.8 EXHIBITS. The Exhibits referred to herein form a part of this
Agreement, and are hereby incorporated herein by this reference.
6.9 ENTIRE AGREEMENT; AMENDMENTS; HEADINGS; WAIVERS, ETC. This Agreement
and the Schedules hereto contain the entire agreement of the Parties with
respect to the subject matter hereof and supersede all prior agreements and
understandings, either oral or written, between the Parties with respect to such
subject matter. No understandings, representations or warranties made or agreed
to by either Party prior to or contemporaneously with the execution of this
Agreement, except understandings, representations and warranties contained in
Transferor's or Transferee's Closing Documents, shall be binding upon either
Party or shall otherwise affect this Agreement, and no amendment, modification
or waiver of any provision of this Agreement or either Party's Closing Documents
will be binding unless in writing and
signed by authorized representatives of both Parties. The headings in this
Agreement, its Exhibits and Transferee's and Transferor's Closing Documents are
for convenience of reference only and shall not constitute a part of this
Agreement or of such Schedules or Closing Documents. No failure or delay on the
part of any Party hereto in the exercise of any right hereunder shall impair
such right or be construed to be a waiver of, or acquiescence in, any breach of
any representation, warranty or agreement herein, nor shall any single or
partial exercise of any such right preclude other or further exercise thereof or
of any other right.. Disclosures made by Transferor in this Agreement or in any
Exhibit hereto in respect of any covenant, representation or warranty of
Transferor shall be deemed to have been made with equal force and effect with
respect to every other relevant covenant, representation and warranty made by
Transferor and in each relevant Exhibit hereto. References to Sections are to
Sections in this Agreement and in each case include references to all
subsections under the referenced Section. Words denoting the singular tense or
person shall include the plural and vice versa and references to the masculine
gender shall, where the context permits, include the feminine and/or neuter
genders and vice versa. The words "including," "includes," "include" as used in
this Agreement mean, respectively, "including, without limitation," "includes,
without limitation," and "include, without limitation." The words "hereof,"
"herein" and "hereunder" and words of similar import shall refer to all
applicable provisions of this Agreement and not to any particular provision.
This Agreement is the result of negotiation and, accordingly, no presumption or
burden of proof will arise with respect to any ambiguity or question of intent
concerning this Agreement favoring or disfavoring any Party to this Agreement by
virtue of the authorship of any provision of this Agreement. All references to
statutory provisions shall include all amendments and reenactments thereof.
6.10 CONFIDENTIALITY.
(a) CONFIDENTIAL INFORMATION. Each Party (the "Holding Party") shall hold
the "Confidential Information" of the other Party (the "Owning Party") in
confidence and will not disclose Confidential Information of the Owning Party to
any other person, except as required by court or governmental order or use the
Confidential Information for any purpose other than internal administrative
purposes. "Confidential Information" shall mean confidential and proprietary
technological and business information, including marketing, financial and
customer information, whether or not in writing. Confidential Information does
not include information which (i) can clearly be demonstrated to have been in
the possession of the Holding Party at the time Confidential Information was
disclosed to it, provided that, such information was not known by the Holding
Party to be subject to another confidentiality agreement or under other
obligations of secrecy, or (ii) becomes generally available to the public other
than as a result of a disclosure by the Holding Party or its employees or
agents, or (iii) becomes available to the Holding Party on a non-confidential
basis from a source other than the Owning Party, provided that, such source is
not known by you to be bound by a confidentiality agreement with, or other
obligations of secrecy to, the Owning Party or another party, or (iv) can
clearly be demonstrated to have been developed by the Holding
Party independent of the Confidential Information, or (v) the Owning Party
consents in writing may be disclosed by the Holding Party.
(b) OWNERSHIP OF CONFIDENTIAL INFORMATION. All Confidential Information is
and shall remain the property of the Party that owned it immediately prior to
the Spin-off.
(c) LIMITED LICENSE. Nothing in this Agreement shall be deemed to be a
grant by the Owning Party of any express or implied license under any of the
Owning Party's Confidential Information.
(d) RELIEF FOR BREACH. In the event of breach of any of the obligations of
the Holding Party under this Agreement, the Owning Party shall have the right to
have such obligation specifically enforced by a court of competent jurisdiction,
including, without limitation, the right to entry of restraining orders and
injunctions, whether preliminary, mandatory, temporary, or permanent, against a
violation, threatened or actual, and whether or not continuing, of such
obligation, without the necessity of showing any particular injury or damage, it
being acknowledged and agreed that any such breach or threatened breach would
cause irreparable injury to the Owning Party and that money damages would not
provide an adequate remedy. In addition, the Owning Party may pursue other
rights and remedies that may be available to it under this Agreement, at law or
in equity in the event of any such violation, and any right or remedy so pursued
shall be independent of any other right or remedy, and all such rights and
remedies shall be severally enforceable. In the event that the Owning Party
commences legal action or seeks legal advice to enforce the obligations of the
Holding Party under this Agreement, the Holding Party shall be responsible for
all costs of such action and advice, including, without limitation, reasonable
attorneys' fees. The Holding Party hereby irrevocably consent that any legal
action against it arising out of or in any matter relating to this Section may
be brought in any federal court in New York or, if any such court lacks subject
matter jurisdiction, in any State Court in New York. By your execution and
delivery of this Agreement, each Party hereby irrevocably consents to the
jurisdiction of such courts and waives any defense based upon improper venue,
inconvenient venue or forum or lack of jurisdiction.
6.11 INDEMNIFICATION
INDEMNITY. The parties mutually agree to indemnify and hold the other
harmless against all liabilities, claims, causes of action, costs, and
expenses arising out of (i) any breach of warranty or
misrepresentation by an offending party, or its nonperformance of any
covenant or obligation under this Agreement, and (ii) any
misrepresentation or omission in any document or other paper delivered
by the offending party under this Agreement.
6.12 SHARING INFORMATION
SHARING INFORMATION. The parties agree to make certain information
available to each other, at no cost to the requesting party, for the
following purposes, unless the sharing would be commercially
detrimental:
(a) MAINTAIN RECORDS. Each party shall maintain adequate internal
accounting to allow the other party to satisfy its own reporting obligations and
prepare its own financial statements.
(b) RETAIN RECORDS. Each party will retain records that may be beneficial
to the other party for a specified period of time. If the records are going to
be destroyed, the destroying party will give the other party an opportunity to
retrieve all relevant information from the records.
(c) PROVIDE PERSONNEL. Each party will do its best to provide the other
party with personnel, directors, officers or agents who may be used as witnesses
in legal proceedings.
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed by their duly authorized officers or representatives in the presence of
the designated witnesses on the date first above written.
eSAFETYWORLD, INC.
By:
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Name:
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Title:
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Date:
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BLUE MARBLE WORLD, INC.
By:
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Name:
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Title:
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Date:
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