Exhibit 99.2
RESCISSION AGREEMENT
THIS RESCISSION AGREEMENT is (the "Agreement") is made and entered into
effective as of the 21 day of November, 2011 (the "Rescission Effective Date"),
by and between Netco Investments, Inc., a Texas corporation ("Netco"), and Team
Advisory Corp., a Florida corporation ("Team"), hereinafter referred to
collectively as the "Parties."
R E C I T A L S
A. On May 3, 2011 (the "Stock Purchase Agreement Date"), Netco and Team
entered into that certain Agreement For Purchase and Sale of Assets (the
"Purchase Agreement") whereby Netco intended to acquire 73.5 of the issued and
outstanding shares of common stock of Merrimack Corporate Securities, Inc.
representing 24.5% of the outstanding shares, owned by Team (the "Team Shares")
in exchange for 910,386 shares (the "Exchange Shares") of Netco, all in
accordance with the terms and conditions of the Purchase Agreement.
B. Based upon unanticipated and/or undisclosed changes in the financial
condition of Netco, Team requested and the Parties have agreed to rescind the
Purchase Agreement and unwind each and every transaction contemplated thereunder
(the "Rescission"). It is the intent of the Parties that the result of
Rescission shall be to place each Party in the same position that existed as if
the Purchase Agreement had never been executed.
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein made, and in consideration of the representations, warranties, and
covenants herein contained, the Parties agree as follows:
a) Incorporation of Recitals. The Recitals set forth above are true and
correct and are incorporated into the Agreement by this reference.
b) Rescission. On and as of the Rescission Effective Date, the Purchase
Agreement and each and every of the transactions contemplated thereunder,
including but not limited to the acquisition by Netco of all of 24.5% the Team
Shares in exchange for the Exchange Shares, are hereby rescinded and shall for
all purposes shall be deemed as not having occurred in any respect.
c) Return of Property and Stock Certificates.
i) Return of Team Property. Netco agrees and covenants that any and
all tangible or intangible personal property of the Team (the "Team Property"),
including but not limited to, any and all corporate records and Proprietary
Information (as such term is defined herein) belonging to the Team that was
delivered or made available to Netco in any respect whatsoever shall be returned
by the Netco to Team within three (3) business days after the Rescission
Effective Date.
ii) Return of Netco Property. Team agrees and covenants that any and
all tangible or intangible personal property of Netco (the "Netco Property"),
including but not limited to, any and all corporate records and Proprietary
Information belonging to Netco that was delivered to or made available to Team
or the Exchanging Shareholders by Netco in any respect whatsoever shall be
returned by, as applicable, the Team or the Exchanging Shareholders to Netco
within three (3) business days after the Rescission Effective Date.
iii) Return of Certificates for Team Shares and Exchange Shares. The
mutual exchange of the Team Shares and the Exchange Shares shall be effectuated
by the delivery of certificates representing such Shares to Xxxxxxx X. Xxxxxx,
Esq., who shall act as Escrow Agent for the acceptance and delivery of said
Shares. Accordingly, upon tender of the Exchange Shares and the Netco Property
to the Escrow Agent, the Escrow Agent shall return all of the Team Shares to
Team. At such time as all of the Team Shares and all of the Team Property have
been returned to Team and, provided that the Netco has fully complied with the
Reporting Obligation (as hereinafter defined), the Escrow Agent shall be
entitled to release the Exchange Shares and the Netco Property to the Netco. In
the event that the Escrow is unable to release the Exchanged Shares with seven
days of the date of this Agreement, either party shall have the right to cancel
this Agreement and proceed with whatever actions that it deems appropriate. In
such event this Agreement shall become null and void.
d) Non-Disclosure of Proprietary Information.
i) For purposes of this Agreement, "Proprietary Information" of a
Party shall mean any and all communications, financial statements, documents,
customer lists and records, business plans, supplier lists and records, sales
and pricing information, vendor information, biographical information, market
studies and analysis, product information, asset information, transportation and
distribution information, production, manufacturing techniques, procedures
and/or processes, inventions, discoveries, concepts, formulae, know-how and/or
ideas (whether or not patented or copyrighted, and whether or not patentable or
copyrightable) and all other information, documents, items or communications
disclosed or delivered to the other Party that would qualify as a "Trade Secret"
as such term is defined in Section 688.002(4) of the Florida Statues.
ii) Each Party agrees, on behalf of itself, its officers, its
directors, its employees, its representatives and any subsidiaries or any
affiliated entities or any other party controlled by or in control of a Party
(collectively, the "Affiliates") as follows:
(1) neither Party nor any Affiliate shall, at any time or in any
manner or fashion, either directly or indirectly, without the prior written
agreement of the other Party:
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(a) use, derive a benefit from or otherwise claim any
proprietary interest in the Proprietary Information of the other Party; or
(b) divulge, disclose or communicate to any third party or
entity whomsoever any of the Proprietary Information of the other Party.
(2) make any statement, public announcement or any release to
trade publications or to the press or make any statement to any competitor,
customer or any other third party:
(a) regarding the Proprietary Information of the other
Party, except as may be required by a court of competent jurisdiction in order
to comply with the requirements of any law, governmental order or regulation; or
(b) regarding the existence of this Agreement or any of the
underlying circumstances relating to this agreement, except as may be required
by a court of competent jurisdiction in order to comply with the requirements of
any law, governmental order or regulation; or
(3) contact any employee, independent contractor, supplier,
vendor, customer, lending institution, or any other person or entity with whom
the other Party conducts its business, maintains a professional relationship to
inquire about any aspect of the business of the other Party or their working
relationship.
iii) Each Party agrees that neither this Agreement nor, the Purchase
Agreement shall be construed as granting to the other Party or its Affiliates
any property rights, by license or otherwise, to any of the Proprietary
Information disclosed or exchanged during the negotiation and consummation of
the Purchase Agreement or to any invention or any patent, copyright, trademark
or other intellectual property right that has issued or that may issue, based on
such Proprietary Information. Furthermore, the each Party, on behalf of its
Affiliates, acknowledges, agrees and understands that the unauthorized sale, use
or disclosure of the Proprietary Information of the other Party shall constitute
unfair competition.
iv) Each Party acknowledges, understands and agrees that Proprietary
Information of the other Party is of a special, unique, extraordinary and
intellectual character which gives it a potentially unmeasurable pecuniary
value, and that any unauthorized disclosure or use thereof may cause a Party
immediate and irreparable harm, injury and damage. Therefore, in the event of
any actual or threatened violation of this Agreement by any Party or its
Affiliates (collectively, the "Offending Party"), non-Offending Party shall be
entitled to seek and obtain a restraining order or an injunction, without the
necessity of posting a bond therefore, restraining or enjoining such action or
threatened action by the Offending Party. Such remedy shall be in addition to,
and not a limitation upon, any other remedy which may otherwise be legally
available to the non-Offending Party, including but not limited to, a remedy of
damages for the breach of the terms of this Agreement.
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e) Reporting Obligations.
i) As between Netco and Team, Netco hereby expressly confirms and
acknowledges that Netco and those officers, directors and other parties
associated with Netco prior to the Stock Purchase Agreement Date (collectively,
the "Netco Parties"), and not Team, were then, continued to be, and remain
solely responsible for complying with any and all reporting requirements
applicable to Netco and the transactions contemplated under the Purchase
Agreement pursuant to the provisions of the Securities Act of 1933, as amended
(the "Act") and the rules and regulations promulgated thereunder and the
provisions of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and the rules and regulations promulgated thereunder (collectively, the
"Reporting Obligations").
ii) Netco covenants and agrees that within five (5) business days
after the Rescission Effective Date Purchase its duly qualified officers and/or
directors shall (i) take such actions as are necessary to properly and
accurately file a Form 8-K (the "Form 8-K") with the United States Securities
and Exchange Commission (the "Commission"), the purpose of which Form 8K is to
disclose the rescission of the Stock Purchase Agreement and the Reporting
Obligations; (ii) correct any earlier filings made concerning this transactions
with the SEC and (iii) respond to any outstanding inquiry (each, an "SEC
Inquiry")from the SEC to Netco.
f) Indemnification.
i) To the extent permitted by law, Netco for itself and on behalf of
its officers, directors and primary shareholders (defined as shareholders owning
directly or beneficially more than 10% of the common stock of Netco) before the
entry of the Purchase Agreement being rescinded herein (the "Indemnifying
Party") agrees to indemnify, hold harmless and defend (i) Team; and (ii) the
directors, officers, partners, employees, agents and each person who controls
Team within the meaning of the 1933 Act or the Exchange Act (each, an
"Indemnified Person"), against any joint or several losses, claims, damages,
liabilities or expenses (collectively, together with actions, proceedings or
inquiries by any regulatory or self-regulatory organization, whether commenced
or threatened, in respect thereof, the "Claims") to which any of them may become
subject insofar as such Claims arise out of or are based upon: (i) any untrue
statement or alleged untrue statement of a material fact in a any document or
instrument filed by Netco in connection with the Reporting Obligation, including
but not limited to the Form 8-K, and as to any SEC Inquiry or the omission or
alleged omission to state therein a material fact required to be stated or
necessary to make the statements therein not misleading; or (iii) any violation
or alleged violation by Netco of the 1933 Act, the Exchange Act, any other law,
including, without limitation, any state securities law, or any rule or
regulation thereunder relating to Netco (the matters in the foregoing clauses
(i) through (iii) being, collectively, the "Violations").
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ii) The Indemnifying Party shall reimburse the Indemnified Person,
promptly as such expenses are incurred and are due and payable, for any
reasonable legal fees or other reasonable expenses incurred by them in
connection with investigating or defending any such Claim.
iii) Notwithstanding anything to the contrary contained herein, the
indemnification agreement contained in paragraph 6.(a): (i) shall not apply to a
Claim arising out of or based upon a Violation which occurs in reliance by Netco
upon and in conformity with information furnished in writing to Netco by any
Indemnified Person expressly for use in connection with the preparation of the
Form 8-K or any response to any SEC Inquiry; (ii) shall not apply to amounts
paid in settlement of any Claim if such settlement is effected without the prior
written consent of Netco, which consent shall not be unreasonably withheld; and
(iii) with respect to any Violation or alleged Violation specifically against
any Indemnified Person unless caused directly or indirectly by Netco, its
officers, directors, agents and primary stockholders as defined above.
iv) Promptly after receipt by an Indemnified Person under this
paragraph 6 of notice of the commencement of any action (including any
governmental action), such Indemnified Person shall, if a Claim in respect
thereof is to be made against the Indemnifying Party, deliver to the
Indemnifying Party a written notice of the commencement thereof, and the
Indemnifying Party shall have the right to participate in, and, to the extent
permitted by the Indemnified Person allow the Indemnifying Party, if it so
desires, to assume control of the defense thereof with counsel mutually
satisfactory to the Indemnifying Party and the Indemnified Person; provided,
however, that an Indemnified Person shall have the right to retain its own
counsel with the fees and expenses to be paid by the Indemnifying Party, if, in
the reasonable opinion of counsel retained by the Indemnifying Party, the
representation by such counsel of the Indemnified Person and the Indemnifying
Party would be inappropriate due to actual or potential differing interests
between such Indemnified Person and any other party represented by such counsel
in such proceeding. The Indemnifying Party shall pay for only one separate legal
counsel for the Indemnified Persons. The failure to deliver written notice to
the Indemnifying Party within a reasonable time of the commencement of any such
action shall not relieve the Indemnifying party of any liability to the
Indemnified Persons, except to the extent that the Indemnifying Party is
actually prejudiced in its ability to defend such action by the failure to
provide such notice. The indemnification required by this paragraph 6 shall be
made by periodic payments of the amount thereof during the course of the
investigation or defense, as such expense, loss, damage or liability is incurred
and is due and payable.
v) To the extent any indemnification by the Indemnifying Party is
prohibited or limited by law, the Indemnifying Party agrees to make the maximum
contribution with respect to any amounts for which it would otherwise be liable
under paragraph 6 to the fullest extent permitted by law; provided, however,
that (i) no contribution shall be made under circumstances where the
Indemnifying Party would not have been liable for indemnification under the
fault standards set forth in paragraph 6.
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g) Miscellaneous.
i) Amendments and Waivers. No amendment or modification of this
Agreement shall be effective unless it is in writing and executed by the party
against whom enforcement is sought. No waiver by any Party of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such
occurrence.
ii) Construction. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties, and no presumption or burden of proof
shall arise favoring or disfavoring any Party by virtue of the authorship of any
of the provisions of this Agreement. Any reference to any federal, state, local,
or foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context otherwise requires. The
word "including" shall mean including without limitation.
iii) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
iv) Entire Agreement. This Agreement, and the exhibits and other
documents or instruments referred to herein constitute the entire agreement
among the Parties and supersedes any prior understandings, agreements or
representations by or among the Parties, written or oral, to the extent they
related in any way to the subject matter hereof..
v) Expenses. Each of the Parties will bear its own costs and expenses
(including legal fees and expenses) incurred in connection with the preparation
of this Agreement and the completion of transactions contemplated hereby.
vi) Facsimile / Electronic Execution. Signatures on counterparts of
this Agreement transmitted by facsimile or by electronic means are hereby
authorized and shall be acknowledged as if any such signature included on any
such counterpart and so transmitted was an original execution.
vii) Governing Law. This Agreement shall be governed by and construed
in accordance with the domestic laws of the State of Florida without giving
effect to any choice or conflict of law provision or rule that would cause the
application of the laws of any jurisdiction other than the State of Florida.
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viii) Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
ix) Notices. All notices, requests, demands, claims and other
communications (collectively, a "Notice") required or permitted hereunder shall
be in writing. Any Notice hereunder shall be deemed duly given (i) seven (7)
days after such Notice is sent, if sent by registered or certified mail, return
receipt requested, postage prepaid and addressed to the intended recipient as
set forth below; (ii) one (1) day after such Notice is sent, if sent by
recognized overnight courier with courier charges prepaid and addressed to the
intended recipient as set forth below; and (iii) on the date such Notice is
sent, if sent by facsimile or electronic mail addressed to the intended
recipient as set forth below, provided that the Party so sending such Notice
obtains a commercially acceptable evidence that such Notice was so sent by
facsimile or electronic means. Any Party may change the address to which Notices
are to be delivered by providing Notice in the manner set forth above. Until
changes as provided for herein, Notices shall be provided as follows:.
If to Netco:
If to Team:
Xxxxxxx X. Xxxxxx, Esq.
0000 Xxxx Xxxxxxx Xxxx Xxxx.
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
000-000-0000
x) No Third-Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any person or entity other than the Parties and their
respective successors and permitted assigns.
xi) Severability. Any term or provision of this Agreement that is held
to be invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision in
any other situation or in any other jurisdiction.
xii) Waiver of Jury Trial. IN THE EVENT OF ANY LITIGATION ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, THE PARTIES HEREBY KNOWINGLY,
VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION (INCLUDING BUT NOT LIMITED TO ANY CLAIMS,
CROSS-CLAIMS, OR THIRD PARTY CLAIMS) ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE PARTIES
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HEREBY CERTIFIES TO THE OTHER PARTIES HERETO THAT NO REPRESENTATIVE OR AGENT OF
ANY PARTY HERETO NOR THE COUNSEL TO ANY PARTY HERETO HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT ANY PARTY HERETO WOULD NOT, IN THE EVENT OF SUCH LITIGATION,
SEEK, TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. EACH OF THE
PARTIES HERETO ACKNOWLEDGES THAT SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT, BY, INTER ALIA, THE PROVISIONS OF THIS PARAGRAPH.
xiii) Succession and Assignment. This Agreement shall be binding upon
and inure to the benefit of the Parties hereto and their respective successors
and permitted assigns. No Party may assign this Agreement or any of the rights,
interests or obligations of such Party without the prior written approval of
each other Party.
(Signatures Appear Next Page)
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
Effective Date.
NETCO INVESTMENTS, INC.
By: /s/ Xxxx Xxxxxxx
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TEAM ADVISORY CORP.
By: /s/ Xxxxxxx Pizuti
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