Exhibit 10.7
AGREEMENT
AGREEMENT dated this 15th day of May, 2000 between IVP TECHNOLOGY
COPRORATION, a Nevada corporation having an office at 00 Xxxxxxx Xxxxxx, Xxxxx
000, Xxxxxxxxxxx, Xxxxxxx X0X 0X0 Xxxxxx (the "Company"), RAINBOW INVESTMENTS
INTERNATIONAL LIMITED ("Rainbow"), a British Virgin Islands corporation having
an address at c/o Rawlinson & Xxxxxx Ltd., Woodbourne Hall, P.O. Box 3162, Road
Town, Tortola, British Virgin Islands and Ruffa & Ruffa, P.C., a professional
corporation organized pursuant to the laws of the State of New York and having
an address at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx00000 (the "Escrow
Agent").
W I T N E S S E T H:
WHEREAS, the Company requires funding in the amount of $200,000 to meet
certain obligations; and
WHEREAS, Rainbow has agreed to loan the Company $200,000 (the "Funds")
in consideration of the issuance of a convertible promissory note in the
principal amount of the Funds, the issuance of a warrant to purchase 100,000
shares of the Company's common stock and on the other terms and conditions set
forth herein; and
WHEREAS, Rainbow and the Company desire the Ruffa & Ruffa, P.C. hold
the Funds and the promissory note and certificate evidencing the warrant and
Ruffa & Ruffa, P.C. has agreed to serve as the escrow agent to hold said items
in accordance with the provisions hereof.
IN WITNESS WHEREOF, the parties, intending to be legally bound, hereby
agree as follows:
1. LOAN AND ISSUANCE OF PROMISSORY NOTE. Rainbow hereby agrees to lend to the
Company the sum of $200,000, which loan shall be evidenced and governed by the
provisions of a convertible promissory note, the form of which is attached
hereto as Exhibit A (the "Note").
2. ISSUANCE OF WARRANT. As a further inducement for Rainbow to loan the Company
the Funds, the Company hereby agrees to issue in favor of Rainbow or its
designees a warrant ("Warrant") to purchase up to 100,000 shares of common stock
of the Company, par value $.001 per share ("Common Stock"), at an exercise price
equal to eighty percent (80%) of the average closing bid price per share of
Common Stock (as reported by the National Quotation Bureau, Inc.) during the ten
(10) trading days immediately prior to any such per exercise share at any time
to and through May 15, 2001 all as more fully described and subject to the
provisions of the Warrant, a copy of the form of which is attached hereto as
Exhibit B.
3. DELIVERY OF FUNDS AND DOCUMENTS TO ESCROW AGENT; RELEASE FROM ESCROW. As soon
as practicable after the date hereof but in no event later than two days after
the execution hereof, (a) Rainbow shall wire transfer the sum of $200,000 (the
"Funds") to Ruffa & Ruffa, P.C. as escrow agent (the "Escrow Agent") per the
wire transfer instructions set forth in Schedule A hereto and (b) the Company
shall deliver the executed Note and Warrant certificate (the Note and the
Warrant certificate are herein referred to as the "Documents") to the Escrow
Agent. At such time as the Escrow Agent receives the Funds and the Documents it
shall thereupon cause the Funds to be released to the Company and the Documents
to be delivered to Rainbow by overnight courier.
4. DUTIES AND OBLIGATIONS OF THE ESCROW AGENT.
(a) The parties hereto agree that the duties and obligations of the
Escrow Agent are only such as are herein specifically provided and no other. The
Escrow Agent's duties are as a depositary only, and the Escrow Agent shall incur
no liability whatsoever, except as a direct result of its willful misconduct.
(b) The Escrow Agent may consult with counsel of its choice, and shall
not be liable for any action taken, suffered or omitted by it in accordance with
the advice of such counsel.
(a) The Escrow Agent shall not be bound in any way by the terms of any
other agreement to which Rainbow and the Company or any affiliate thereof,
whether or not it has knowledge thereof, and the Escrow Agent shall not in any
way be required to determine whether or not any other agreement has been
complied with by Rainbow and the Company, or any other party thereto. The Escrow
Agent shall not be bound by any modification, amendment, termination,
cancellation, rescission or supersession of this Agreement unless the same shall
be in writing and signed by Rainbow and the Company, and agreed to in writing by
the Escrow Agent.
(b) In the event that the Escrow Agent shall be uncertain as to its
duties or rights hereunder or shall receive instructions, claims or demands
which, in its opinion, are in conflict with any of the provisions of this
Agreement, it shall be entitled to refrain from taking any action, other than to
keep safely, the Funds and the Documents then held in escrow and to distribute
them in accordance with the provisions hereof or in accordance with a final
judgment of a court of competent jurisdiction.
(c) The Escrow Agent shall be fully protected in relying upon any
written notice, demand, certificate or document which it, in good faith,
believes to be genuine. The Escrow Agent shall not be responsible for the
sufficiency or accuracy of the form, execution, validity or genuineness of
documents or securities now or hereafter deposited hereunder, or of any
endorsement thereon, or for any lack of endorsement thereon, or for any
description therein; nor shall the Escrow Agent be responsible or liable in any
respect on account of the identity, authority or rights of the persons executing
or delivering or purporting to execute or deliver any such document, security or
endorsement.
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(d) The Escrow Agent shall not be required to institute legal
proceedings of any kind and shall not be required to defend any legal
proceedings which may be instituted against.
(e) If the Escrow Agent at any time, in its sole discretion, deems it
necessary or advisable to relinquish custody of the Funds and the Documents, it
may do so by giving five (5) days written notice to the parties of its intention
and thereafter delivering the Funds and the Documents to any other escrow agent
mutually agreeable to Rainbow and the Company and, if no such escrow agent shall
be selected within three days of the Escrow Agent's notification to Rainbow and
the Company of its desire to so relinquish custody of the Funds and the
Documents, then the Escrow Agent may do so by delivering them (a) to any bank or
trust company in the Borough of Manhattan, City and State of New York, which is
willing to act as escrow agent therefor in place and instead of the Escrow
Agent, or (b) to the clerk or other proper officer of a court of competent
jurisdiction as may be permitted by law within the State, County and City of New
York. The fee of any such bank or trust company or court officer shall be borne
equally by Rainbow and the Company. Upon such delivery, the Escrow Agent shall
be discharged from any and all responsibility or liability with respect to the
Funds and the Documents and Rainbow and the Company shall promptly pay to the
Escrow Agent, in equal proportion, all monies which may be owed it for its
services hereunder, including, but not limited to, reimbursement of its
out-of-pocket expenses pursuant to paragraph (i) below.
(f) This Agreement shall not create any fiduciary duty on the Escrow
Agent's part to Rainbow or the Company, nor disqualify the Escrow Agent from
acting on behalf of the Company or any other party in any dispute with Rainbow.
Rainbow understands and acknowledges that the Escrow Agent has acted and will
continue to act as counsel to the Company and other parties who are parties to
transactions with the Company.
(g) The reasonable out-of-pocket expenses paid or incurred by the
Escrow Agent in the administration of its duties hereunder, including, but not
limited to, all counsel and advisors' and agents' fees and all taxes or other
governmental charges, if any, shall be paid equally by Rainbow and the Company.
5. INDEMNIFICATION. Rainbow and the Company, jointly and severally, hereby
indemnify and hold the Escrow Agent, its employees, partners, members and
representatives harmless from and against any and all losses, damages, taxes,
liabilities and expenses that may be incurred, directly or indirectly, by the
Escrow Agent and/or any such person, arising out of or in connection with its
acceptance of appointment as the Escrow Agent hereunder and/or the performance
of its duties pursuant to this Agreement, including, but not limited to, all
legal costs and expenses of the Escrow Agent and any such person incurred
defending itself against any claim or liability in connection with its
performance hereunder and the costs of recovery of amounts pursuant to this
Section 5.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby represents
and warrants to Rainbow as follows:
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(a) CORPORATE ORGANIZATION; ETC. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Nevada and has full corporate power and authority to carry on its business as it
is now being conducted and to own the properties and assets it now owns.
(b) AUTHORIZATION, ETC. The Company has full corporate power and
authority to enter into this Agreement and to carry out the transactions
contemplated hereby. The Board of Directors of the Company has taken all action
required by law, the Company's Articles of Incorporation, its By-Laws or
otherwise to be taken by it to authorize the execution and delivery of this
Agreement, the Note and the Warrant and the consummation of the transactions
contemplated hereby and thereby, and this Agreement and the Note and the Warrant
are valid and binding agreements and obligations of the Company enforceable in
accordance with their respective terms, except that (i) such enforcement may be
subject to bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights, and (ii) the
remedy of specific performance and injunctive and other forms of equitable
relief to which it may be subject and to equitable defenses and to the
discretion of the court before which any proceeding therefore may be brought.
(c) NO VIOLATION. Neither the execution and delivery of this Agreement,
the Note or the Warrant nor the consummation of the transactions contemplated
hereby and thereby will violate any provision of the Articles of Incorporation
or By-Laws of the Company, or violate, or be in conflict with, or constitute a
default (or an event which, with notice or lapse of time or both, would
constitute a default) under, or result in the termination of, or accelerate the
performance required by, or cause the acceleration of the maturity of any debt
or obligation pursuant to, or result in the creation or imposition of any
security interest, lien or other encumbrance upon any property or assets of the
Company under, any agreement or commitment to which the Company is a party or by
which the Company is bound, or to which the property of the Company is subject,
or violate any statute or law or any judgment, decree, order, regulation or rule
of any court or governmental authority.
7. MISCELLANEOUS.
(a) NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing, with copies to all the other parties hereto, and
shall be deemed to have been duly given when (i) if delivered by hand, upon
receipt, (ii) if sent by nationally recognized overnight delivery service
(receipt requested), the next business day or (iii) if mailed by first-class
registered or certified mail, return receipt requested, postage prepaid, four
days after posting in the U.S. mails, in each case if delivered to the addresses
set forth in the preamble hereof or at such other address as any of the parties
to this Agreement may hereafter designate in the manner set forth above to the
others.
(b) GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement shall be
governed by and construed and enforced in accordance with the internal laws of
the State of New York without regard to the principles of conflicts of law
thereof. Each party hereby irrevocably submits to the exclusive jurisdiction of
the state and federal courts sitting in the City of New York, borough of
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Manhattan, for the adjudication of any dispute hereunder or in connection
herewith or with any transaction contemplated hereby or discussed herein, and
hereby irrevocably waives, and agrees not to assert in any suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is improper. Each party
hereby irrevocably waives personal service of process and consents to process
being served in any such suit, action or proceeding by mailing a copy thereof to
such party at the address in effect for notices to it under this Agreement and
agrees that such service shall constitute good and sufficient service of process
and notice thereof. Nothing contained herein shall be deemed to limit in any way
any right to serve process in any manner permitted by law.
(c) COUNTERPARTS; FACSIMILE EXECUTION. This Agreement may be executed
in two or more counterparts, all of which when taken together shall be
considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the other party, it
being understood that both parties need not sign the same counterpart. In the
event that any signature is delivered by facsimile transmission, such signature
shall create a valid and binding obligation of the party executing (or on whose
behalf such signature is executed) the same with the same force and effect as if
such facsimile signature page were an original thereof.
(d) HEADINGS. The headings of the Sections and Articles of this
Agreement are inserted for convenience only and shall not constitute a part
hereof or affect in any way the meaning or interpretation of this Agreement.
(e) THIRD PARTIES. Except as specifically set forth or referred to
herein, nothing herein expressed or implied is intended or shall be construed to
confer upon or give to any person or corporation other than the parties hereto
and their successors or assigns, any rights or remedies under or by reason of
this Agreement.
(f) AMENDMENT AND MODIFICATION. Subject to applicable law, this
Agreement may be amended, modified or supplemented only by written agreement of
the Board of Directors of Rainbow, the Company and a duly authorized officer of
R&R.
(g) ENTIRE AGREEMENT. This Agreement sets forth the entire agreement
and understanding of the parties hereto in respect of the subject matter
contained herein, and supersedes all prior agreements, promises, covenants,
arrangements, communications, representations or warranties, whether oral or
written, by any officer, employee or representative of any party hereto.
(g) SEVERABILITY. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision. If any provision of this Agreement is so broad as to be
unenforceable, such provision shall be construed to be only so broad as is
enforceable.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE TO FOLLOW
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IN WITNESS WHEREOF, the parties have set their hands hereunto on the
date first above written.
IVP TECHNOLOGY CORPORATION
By:______________________________
Xxxx Xxxxxxx, President
RAINBOW INVESTMENTS INTERNTAIONAL LIMITED
By:________________________________
, President
ESCROW AGENT:
RUFFA & RUFFA, P.C.
By:_______________________________________
Xxxxxxx X. Xxxxx, President
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SCEHDULE A
WIRE TRANSFER INSTRUCTIONS
Account Name: Ruffa & Ruffa, P.C., attorney Escrow Account
Bank Name: HSBC Bank
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABA Number: 000000000
Account Number: 018 787223
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EXHIBIT A
FORM OF PROMISSORY NOTE
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EXHIBIT B
FORM OF WARRANT
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