Exhibit 10.1
AGREEMENT FOR PURCHASE AND ASSIGNMENT OF LICENSE
THIS AGREEMENT is dated effective July 30, 1999, and is entered into by and
between IRT Industries, Inc., a Florida corporation ("Licensee") and Commerce
Capital Group, LLC, a South Carolina limited liability company ("Licensor").
RECITALS:
1. Licensor has the rights to certain proprietary technology and software, for
estate planning, which permits professionals and non-professional users, to
access forms, instructions, assistance, on-line through the Internet, to develop
estate planning and related documentation, as more specifically identified in
documentation delivered to Licensee, under including future modifications,
additions, corrections, and improvements (the "Software"); and
2. Licensor wishes to license, and Licensee wishes to receive, a license (the
"License") for the limited right to market and use such "Software" in certain
states, and the parties would like to confirm their agreement on certain related
matters, all as described below and upon the terms and conditions hereinafter
set forth;
NOW, THEREFORE, in consideration of the premises, mutual promises,
covenants, terms and conditions herein, and other good and valuable
considerations, the receipt and sufficiency of which are hereby acknowledged by
the parties hereto, the parties hereby agree as follows:
1. RECITALS, EXHIBITS AND SCHEDULES. All of the above recitals are true, correct
and complete, as well as each exhibit and schedule attached hereto, which are
incorporated herein by reference.
2. ASSIGNMENT. Licensee agrees to receive from Licensor, and Licensor agrees to
assign to Licensee (hereinafter the "Assignment"), on the "Closing" (hereinafter
defined in Section titled "Closing and Certain Related Matters" herein), the
"License." Licensor represents and warrants that, among other things, the
License to be conveyed to Licensee by Licensor at Closing will be free and clear
of any and all liens, encumbrances, claims or demands of third parties, except
as both disclosed and otherwise provided for herein, and shall include:
(i) the right to market and use the Software in the "Territory"
(herein defined;
(ii) the right to market the Software to defined potential customers
in the Territory only as follows: professionals in the fields of accounting,
stock brokerage, insurance, lawyers, investment advisory services, financial
planning, and human resources;
(iii) the Territory is initially Florida (but may also include,
subject to the following terms, Georgia, Alabama, Mississippi, and Tennessee as
the "Remaining States");
(iv) the non-exclusive right to utilize the logos and names related to
the Software, as supplied to Licensee by Licensor;
(v) all current, and any future amendments, of sales, usage, limited
technical, instructional, and similar documentation and literature relating to
the Software; and
(vi) the right to receive all income generated from the sale of the
Software in the Territory, less any nominal adjustments or delivery costs to be
resolved between Licensor and Licensee.
3. PURCHASE PRICE. The purchase price for the License, which includes the
financial and other assistance of Licensor described herein, is the sum of
21,000,000 shares of Common Stock to include as the Territory the State of
Florida, and the agreement below to pay additional money, or shares for
additional states, which will be paid by the Licensee to the Licensor as
provided below ("Purchase Price").
4. PAYMENT OF PURCHASE PRICE. The Purchase Price shall be paid to Licensor as
follows, subject to the terms and conditions of this Agreement:
(i) a certificate for 21,000,000 shares of Common Stock (unless noted
otherwise herein, all shares shall be "restricted securities" with reference to
Rule 144) will be delivered to Licensor on or about the Closing, with Licensee
to be deemed to have as the "Territory" the State of Florida;
(ii) the Licensee may, only as an option that may be exercised by
Licensee if it elects, to deliver additional shares of Common Stock, or cash as
the parties may agree, to Licensor for the "Remaining States," described above,
over the next three years in installments at such times and amounts as
determined by the Board of Licensee, but not later than two years from the
Closing;
(iii) as to said Remaining States, Licensee may pay same in money or
in shares of Common Stock of Licensee, and if in stock, the following shall be
the number of shares needed for each state: Georgia, 15,003,007 shares; Alabama
8,701,251 shares; Mississippi 5,496,601 shares; Tennessee 10,799,141 shares.
As to the Shares, the following shall apply:
(a) On the Closing, the Licensee shall deliver an initial certificate in
the total of 21,000,000 Shares to the Licensor, of Common Stock of the Licensee.
The Shares shall be
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unregistered, in the common form of "restricted securities" as defined under
Rule 144 of the U.S. Securities and Exchange Commission ("SEC").
(b) After the Closing, as additional shares of Common Stock that become
available due to any recapitalization, or otherwise, the Licensee shall deliver
promptly additional certificates to Licensor of Shares, until the balance of the
Purchase Price is paid in full.
(c) The Licensor will have the right, on no more than 3 occasions per year,
following the Closing, to require that the Licensee use best efforts to register
the Shares with the SEC and applicable states, in order for the Shares to be
free trading securities. While the Licensor will cooperate as to any such
registration, the expense and effort of same shall be borne by the Licensee.
5. ASSUMPTION OF LIABILITIES. A. At Closing, Licensor will not assume any
obligations of Licensee, and Licensee will not assume any obligations of
Licensor.
A. Following the Closing, Licensor shall not assume, or become liable for,
any obligations or liabilities of Licensee due to the operation of its business,
including as to the marketing of the Software, including, without limitation,
liabilities or obligations in respect of (i) as the case may be, the
shareholders, partners, owners, directors or officers of Licensee; (ii) any
pension or profit sharing, bonus or similar compensation or other plan; (iii)
employees for any period; (iv) Federal, state or local taxes measured by or in
respect of Licensee's income for any period; (v) taxes, fines, penalties and the
like imposed by any person (for the purpose of this Agreement, "person" includes
any individual entity or person, natural or otherwise) on Licensee or any
affiliate of Licensee; (vi) any loans, notes or accounts payable; (vii) Federal,
state or local payroll, excise or property taxes and any other type of tax
whatsoever; and (viii) any fines, penalties or the like due to the Federal
government, the State of Florida, or any other state or any instrumentality or
agency of the foregoing for any events, circumstances or facts.
6. CLOSING AND CERTAIN RELATED MATTERS. A. Closing Date. The date for the
closing of the Agreement (herein "Closing") shall be the date first written
above, unless the parties agree otherwise in writing. The Closing shall be held
by overnight mail or fax unless another time and place are mutually agreed upon
by the parties hereto in writing.
B. Conditions Precedent to the Closing.
(i) By Licensor. The obligation of Licensor to consummate this
Agreement shall be subject to, and conditioned upon, the satisfaction, at or
prior to Closing, of each of the following conditions, and as otherwise provided
in this Section, except to the extent of any waiver by Licensor in writing
signed by Licensor:
C. Compliance with Agreement. Licensee shall have performed and complied
with all covenants and agreements of Licensee hereunder, and satisfied all
conditions hereunder, that Licensee is required by this Agreement to perform,
comply with, or satisfy before or at Closing, and all actions,
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proceedings, instruments and documents required of Licensee to carry out the
terms of this Agreement shall have been duly delivered to Licensor.
D. Adverse Changes. No event shall have occurred between the date of this
Agreement and the Closing date which has or might reasonably have a material
adverse affect on the Licensee.
E. Representations. The representations of Licensee hereunder, which shall
be deemed (1) to have been made as of the date of this Agreement and also on the
Closing date and (ii) to continue and survive the Closing, shall be true,
complete and correct.
F. Financial Conditions. There shall have been no material adverse change
in the financial condition of Licensee, including the results of operations and
liquidity.
G. Errors, Etc. Licensor shall not have discovered any material error,
misstatement or omission of Licensee hereunder or in any information, schedule
or exhibit delivered to Licensee on or before the Closing date.
(ii) By Licensee. The obligation of Licensee to consummate this
Agreement shall be subject to and conditioned upon the satisfaction, at or prior
to Closing, the same conditions under (i) above, except as they apply to
Licensor.
(A) Transition. Licensor shall aid and assist Licensee in the transition of the
business focus of the Licensee, and use of the Software related thereto.
(B) CERTAIN REPRESENTATIONS OF LICENSEE. As a material inducement to Licensor
to enter into this Agreement and perform hereunder, Licensee hereby
represents to Licensor, in addition to such other representations contained
elsewhere herein, the following:
A. Financial Statements. The filings with the SEC pertaining to the
Licensee were prepared under generally accepted accounting principles and fairly
represent the financial performance and condition of the Licensee as of the date
hereof with the current financial performance and conditions as of the date
hereof being represented by Licensee to Licensor as being equal to or better
than such past performance and condition.
B. Absence of Specified Changes. Except as provided herein, Licensee has
not, and from the date hereof to and including the Closing, Licensee will not
have: (i) mortgaged, pledged, subjected to lien, charged, encumbered or granted
a security interest, tangible or intangible, in its assets; or (ii) suffered any
damage, destruction or loss (whether or not covered by insurance) or waived any
rights of substantial value, except, notwithstanding anything herein, for the
need of Licensee to compensate certain consultants and professionals with shares
of its Common Stock prior to the Closing, and after giving effect to this and
the issuance of the 21,000,000 Shares above, approximately sixty nine million
shares remain available for issuance subject to proper formalities and issuance
requirements.
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C. Liabilities. Except as disclosed in its SEC filings or herein, Licensee
has no other debts, contracts, liabilities or obligations of any kind, character
or description, whether accrued, absolute, contingent or otherwise, or due or to
become due, for which Licensor shall in any way be directly or indirectly
subject to or liable for.
D. Taxes. Within the times and in the manner prescribed by law, Licensee
has filed all Federal, state and local tax returns required by law and has paid
all taxes, assessments and penalties due and payable. There are no present
disputes as to taxes, of any nature, payable by Licensee.
E. Compliance with Law and Other Instruments. Licensee is a duly organized,
validly existing corporation in good standing in the State of Florida, Licensee
is not in violation or default of any term or provision of any law, charter,
bylaw, mortgage, indenture, contract, agreement, lease, instrument, judgment,
decree, order, statute, rule, regulation or ordinance, and the execution,
delivery and performance of, and compliance with, this Agreement will not result
in the violation of, or be in conflict with, or constitute a default under, any
such term or provision or result in the creation of any mortgage, lien,
encumbrance, or charge upon any assets pursuant to any such term or provision.
II. CERTAIN REPRESENTATIONS OF LICENSOR. As a material inducement to Licensee to
enter into this Agreement and perform hereunder, Licensor hereby represents to
Licensee, in addition to such other representations contained elsewhere herein,
the following:
A. Review. Prior to Closing, Licensor has the opportunity to review, among
other things, SEC filings of Licensee, and any other information requested, and
has had a complete opportunity to ask questions and receive answers.
B. Rights To Software. Licensor has good and marketable rights to the
Software.
C. Compliance with Law and Other Instruments. Licensor is a duly organized,
validly existing limited liability company in good standing in the State of
South Carolina. Licensor is not in violation or default of any term or provision
of any law, charter, bylaw, mortgage, indenture, contract, agreement, lease,
instrument, judgment, decree, order, statute, rule, regulation or ordinance, and
the execution, delivery and performance of, and compliance with, this Agreement
will not result in the violation of, or be in conflict with, or constitute a
default under, any such term or provision or result in the creation of any
mortgage, lien, encumbrance, or charge upon any assets pursuant to any such term
or provision.
D. Software Value, Assistance and Financing. (i). The parties believe the
Software has a multi-millon dollar potential market. The Licensor and its
founders have expended hundreds of thousands of dollars and approximately 15
years of development to create the Software. There is little or no competition
for the type of software at issue considering the intended delivery via the
Internet, and research and comparables in the market place.
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(ii) Licensor will soon have a high-quality multi-linked Internet site
established, and currently market demographics, research, and planning is in
place, having been undertaken by, or at the direction of the Licensor, and all
of such benefits will be made available to Licensee at no additional cost.
Licensor has established numerous industry contacts, and has highly experienced
persons from such companies as Oracle and its business partners, and Price
Waterhouse Coopers, which such people have or will shortly be involved in the
promotion, and business pursuit of the Software, and for the benefit of the
Licensee as well.
(iii) Licensor has already established close ties with investors,
brokers, investment bankers, and institutions as well as banks, who are prepared
to assist in the funding by way of loans, collateralization, private placements,
letter of credits, etc. the necessary funds to not only assist Licensor, but
also for the benefit of Licensee. Licensor acknowledges Licensee is and will be
in need of substantial funding to pursue the exploitation of the License, and
also its responsibilities as a publicly trading company. Licensor is committed
to use its best efforts to establish the necessary funding to assist Licensee.
8. ACCESS TO RECORDS. Prior to this Agreement, Licensee has afforded to Licensor
free and full access to the properties, books and records of Licensee.
9. COVENANT NOT TO COMPETE AND NON-DISCLOSURE. The Licensor further covenants
and agrees that it will not, jointly, individually or collectively as a
participant in a partnership, sole proprietorship, corporation or other entity,
or as an operator, investor, shareholder, partner, director, employee,
consultant, manager, advisor or in any other capacity whatsoever, either
directly or indirectly, compete with Licensee in the Territory, except for
categories of customers not expressly included in the "Territory" described
above.
10. BROKERAGE AND FINDER'S FEES. The parties represent to one another that there
are no brokerage or finder fees due to anyone in connection with this Agreement.
11. LICENSE TERM. The term of the License, as described herein by the Licensee,
shall start from the Closing and shall continue until sooner terminated as the
parties hereto may agree in writing or due to a material breach of the terms
hereof.
12. BOARD OF DIRECTORS. In order to improve the probability of the success of
Licensee in its use of the License, the current sole Director of the Licensee
will appoint the following persons to serve on the Board of Licensee as
replacements for vacant seats, upon the intended resignation of said sole
Director as a Director and officer of Licensee upon the Closing. Licensor
represents that the following persons have qualifications and have agreed to sit
on the Board, and assume positions as the officers of the Licensee:
NAMES:
Xxxx X. Xxxxx, Xx. Director,
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Xxxx X. Xxxxxxxxxx Director
Xxxx Xxxxxxx President, Secretary and Treasurer
13. MISCELLANEOUS PROVISIONS. A. Gender. Wherever the context shall require, all
words herein in the masculine gender shall be deemed to include the feminine or
neuter gender, all singular words shall include the plural, and all plural shall
include the singular.
B. Severability. If any provision hereof is deemed unenforceable by a court of
competent jurisdiction, the remainder of this Agreement, and the application of
such provision in other circumstances shall not be affected thereby.
C. Further Cooperation. From and after the date of this Agreement, each of
the parties hereto agrees to execute whatever additional documentation or
instruments as are necessary to carry out the intent and purposes of this
Agreement or to comply with any law.
D. Waiver. No waiver of any provision of this Agreement shall be valid
unless in writing and signed by the waiving party. The failure of any party at
any time to insist upon strict performance of any condition, promise, agreement
or understanding set forth herein, shall not be construed as a waiver or
relinquishment of any other condition, promise, agreement or understanding set
forth herein or of the right to insist upon strict performance of such waived
condition, promise, agreement or understanding at any other time.
E. Expenses. Except as otherwise provided herein, each party hereto shall
bear all expenses incurred by each such party in connection with preparing and
signing this Agreement and in the consummation of the transactions contemplated
hereby and in preparation thereof.
F. Amendment. This Agreement may only be amended or modified at any time,
and from time to time, in writing, executed by the parties hereto.
G. Captions. Captions herein are for the convenience of the parties and
shall not affect the interpretation of this Agreement.
H. Counterpart Execution. This Agreement may be executed by fax and 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.
I. Assignment. This Agreement is not assignable.
J. Parties in Interest. Provisions of this Agreement shall be binding upon
and inure to the benefit of and be enforceable by Licensee and Licensor, other
permitted successors and assigns, if any. Nothing contained in this Agreement,
whether express or implied, is intended to confer any rights or remedies under
or by reason of this Agreement on any persons other than the parties to it and
their respective successors and assigns, nor is anything in this Agreement
intended to relieve or
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discharge the obligation or liability of any third persons to any party to this
Agreement, nor shall any provision give any third persons any right of
subrogation over, or action against, any party to this Agreement.
K. Entire Agreement. This Agreement and the exhibits attached hereto
constitute the entire agreement and understanding of the parties on the subject
matter hereof and supersede all prior agreements and understandings.
L. Construction. This Agreement shall be governed by the laws of the State
of Florida without reference to conflict of laws and the venue for any action,
claim or dispute in respect of this Agreement shall be such court of competent
jurisdiction as is located in Broward County, Florida. The parties agree and
acknowledge that each has reviewed this Agreement and the normal rule of
construction that agreements are to be construed against the drafting party
shall not apply in respect of this Agreement given the parties have mutually
negotiated and drafted this Agreement
M. Independent Legal Counsel. The parties hereto agree that (i) each has
retained independent legal counsel in connection with the negotiation,
preparation and execution of this Agreement, (ii) each has been advised of the
importance of retaining legal counsel, and (iii) by the execution of this
Agreement, each party who has not retained independent legal counsel
acknowledges having waived such right.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
/s/ Xxxxx X. Xxxxxx LICENSOR:
COMMERCE CAPITAL GROUP, LLC
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Witness
By: /s/ R.E. Xxxxxx
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Its: Managing Member
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LICENSEE:
IRT INDUSTRIES, INC.
/s/ Xxxxxxx Trapper
------------------------ By: /s/ Xxxxxx X. Xxxxxx
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Witness
President and Chief Executive Officer
Its: --------------------------------------
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