ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (the "Agreement") is entered into
as of May ___, 2004 by and among Xxxxxxx X. Xxxxxxx (the "Seller"), on the one
hand, and Xxxxx X. Xxxxx, Xxxx XxXxxx, and International Capital Advisory, Inc.,
a Canada corporation (collectively, the "Buyer" or "Buyers").
WHEREAS, subject to the terms and conditions set forth herein, the Seller
wishes to assign, and Buyer wishes to assume, the rights and obligations of the
Seller under that certain Promissory Note dated May __, 2004, in the principal
amount of U.S. $75,000, by Technology Acquisition Corporation, a Nevada
corporation (the "Company"), in favor of the Seller, a copy of which is attached
hereto as Exhibit A (the "Promissory Note");
WHEREAS, this Agreement is one of a series of mutually dependent
agreements and instruments for the sale of Seller's debt and stock of the
Company, including a securities purchase agreement ("Securities Purchase
Agreement") by and between Seller and Buyer (and others) of even date herewith.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. ASSIGNMENT. At the Closing (as hereinafter defined), the Seller does
hereby irrevocably sell, convey, transfer, assign, grant, bargain and deliver to
Buyer and its successors and assigns forever, effective as of Closing, free and
clear of all liens, claims, security interests, mortgages, charges, encumbrances
and other restrictions, all rights of Seller under the Promissory Note. The
Seller hereby irrevocably constitutes and appoints Buyer as its true and lawful
attorney, with full power of substitution, in Seller's name and stead, but on
behalf and for the benefit of Buyer to demand and receive Seller's interest in
the Promissory Note, and from time to time to take any and all actions in
Seller's name, for the benefit of Buyer for the collection and/or reduction to
possession of the Promissory Note. Such powers of attorney are coupled with an
interest and are irrevocable by Seller.
2. PURCHASE AND ASSUMPTION. In consideration for the assignment set forth
in Section 1 above, Buyer has agreed to assist Seller in connection with that
certain Securities Purchase Agreement referenced above. In connection therewith,
at the Closing, Buyer does hereby purchase and assume, in accordance with the
terms thereof, all of Seller's interest in the Promissory Note.
3. CLOSING; AUTHORIZATION.
(A) The closing (the "Closing") of the transaction contemplated
hereunder will take place at the law office of the Xxxxxxx X. Xxx, attorney for
the Seller, on May ___, 2004. The date of the Closing is referred to herein as
the "Closing Date."
4. REPRESENTATIONS AND WARRANTIES OF THE SELLER. Seller represents and
warrants to Buyer that each of the statements contained in this Section 4 is
true and correct as of the date hereof and as of the Closing:
(A) VALIDITY AND ENFORCEABILITY. The execution, delivery and
performance of this Agreement by the Seller is within the Seller's powers, has
been duly authorized by all necessary action on the part of Seller and will not
result in any violation of, be in conflict with or constitute a default under,
the Company's organizational documents or any law, statute, regulation,
ordinance, contract, agreement, instrument, judgment, decree or order to which
the Seller is a party or by which Seller is bound. This Agreement is, and each
of the other agreements and instruments of the Seller contemplated hereby will
be, as of the Closing, the valid and binding obligations of the Seller,
enforceable in accordance with their respective terms.
(B) REQUIRED CONSENTS. No consent, order, authorization, or other
approval, including, without limitation, any consent, order, approval or
authorization of or declaration or filing with any governmental authority or any
party to the Promissory Note, is required on the part of Seller for or in
connection with the execution, delivery or performance of this Agreement by
Seller.
(C) ASSIGNED AGREEMENT. The Promissory Note sets forth the entire
agreement and understanding between the Seller and the Company with respect to
the subject matter thereof, and there have been no amendments or side or
supplemental arrangements to or in respect of any such agreement, document or
instrument. The Promissory Note is valid and binding and in full force and
effect. There is no event which has occurred or existing condition which
constitutes or which, with notice, the happening of an event and/or the passage
of time, would constitute a material default or breach under the Promissory Note
by Seller, or give rise to any right of termination or cancellation by any party
other than Seller. The provisions of the Promissory Note are effective to create
(and have created) in favor of and for the benefit of Seller, and at and after
the Closing, the Buyer, legal, valid, enforceable interests. At the Closing,
Buyer shall acquire from Seller all of his rights under the Promissory Note,
free and clear of all liens, claims, security interests, mortgages, charges,
encumbrances and other restrictions, and Buyers expressly reserves the right to
assign rights in the promissory note to designates of Buyers.
(D) REPRESENTATIONS AND WARRANTIES OF THE STOCK PURCHASE AGREEMENT.
In connection with the execution of this Agreement, the Seller has also entered
into the Securities Purchase Agreement. The Buyer is a designated third party
beneficiary of the representations and warranties and indemnification made by
Seller and the Company in Sections 4 and 7 of such Securities Purchase
Agreement, and those respective Sections of the Securities Purchase Agreement
are incorporated herein by reference as an inducement for Buyer to enter into
this Agreement.
5. REPRESENTATIONS AND WARRANTIES OF THE BUYER. The Buyer represents and
warrants to the Seller that each of the statements contained in this Section 5
is true and correct as of the date hereof and as of the Closing:
(A) VALIDITY AND ENFORCEABILITY. The execution, delivery and
performance of this Agreement by Buyer and the other instruments and agreements
contemplated hereby are within
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Buyer's powers, have been duly authorized by all necessary action on the part of
the Buyer and will not result in any violation of, be in conflict with or any
material law, statute, regulation, ordinance, contract, agreement, instrument,
judgment, decree or order to which Buyer is a party or by which Buyer is bound.
This Agreement is, and each of the other agreements and instruments of Buyer
contemplated hereby will be, the valid and binding obligations of Buyer,
enforceable in accordance with their respective terms.
(B) REQUIRED CONSENTS. No consent, order, authorization, or other
approval, including, without limitation, any consent, order, approval or
authorization of or declaration or filing with any governmental authority or any
third party, is required on the part of Buyer for or in connection with the
execution, delivery or performance of this Agreement by Buyer.
6. INDEMNIFICATION. The representations, warranties and covenants
contained herein shall survive indefinitely after the Closing and any
investigation made by or on behalf of Buyer or the Seller. The Seller shall,
indemnify and hold harmless the Buyer from any and all claims, liabilities,
obligations, costs (including reasonable attorneys' fees), damages, losses and
expenses of any nature ("Damages") relating to or arising out of any breach of
any representation, warranty, covenant or agreement of the Seller contained
herein. Buyer shall indemnify and hold harmless the Seller from any Damages
relating to or arising out of any breach of any representation, warranty,
covenant or agreement of Buyer contained herein.
7. COUNTERPARTS; HEADINGS. This Agreement may be executed in two or more
counterparts, all of which shall together constitute one and the same
instruments. One or more counterparts may be delivered via telecopier, and any
such telecopied counterpart shall have the same force and effect as an original
counterpart hereof. The headings herein are inserted for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
8. NOTICES. Any notices or other communications required or permitted to
be given hereunder shall be made in writing and shall be sufficiently given if
delivered in person or mailed by registered or certified mail, return receipt
requested, or sent by nationally recognized overnight delivery service,
addressed (a) if to any of the Buyers, to Xxxxx X. Xxxxx, 00000 X. Xx Xxxx Xxxx,
Xxxxx 000, Xxxxxxxxx, XX 00000 and (b) if to Seller, at the Law Office of
Xxxxxxx X. Xxx, Esq., Attorney-At-Law, 0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxx
Xxxxx, XX 00000.
9. EXPENSES; NO PUBLICITY. All legal and other costs and expenses incurred
in connection with this agreement and the transactions contemplated hereby shall
be paid by the party incurring such costs and expenses, except as otherwise
provided herein. No party shall make any public disclosures or announcements
concerning the transactions contemplated by this Agreement without the prior
written consent of the Buyer and the Seller, except to the extent required by
law.
10. AMENDMENTS AND WAIVERS. This Agreement may be waived, modified or
amended only by a writing signed by the Buyer and the Seller. No failure to
exercise or delay in exercising any right, power or remedy hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power or remedy hereunder preclude any other or further exercise thereof
or the exercise of any other right, power or remedy.
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11. INTERPRETATION. This writing, together with Exhibits and Schedules
hereto, embodies the entire agreement and understanding between the parties with
respect to the transaction contemplated by this Agreement and supersedes all
prior discussions, understandings and agreements concerning the matters covered
hereby. If any provision of this Agreement is unenforceable or illegal, such
provision shall be enforced to the fullest extent permitted by law and the
remainder of the Agreement shall remain in full force and effect if agreed to in
writing by the Buyer. The parties hereto have participated jointly in the
negotiation and drafting of this Agreement and the other agreements contemplated
herein. In the event an ambiguity or question of intent or interpretation arises
under any provision of this Agreement or any other agreement contemplated
herein, this Agreement and such other agreements shall be construed as if
drafted jointly by the parties thereto, and no presumption or burden of proof
shall arise favoring or disfavoring any party by virtue of authoring any of the
provisions of this Agreement or any other agreements contemplated herein.
Nothing in the Agreement shall be construed to confer any right, benefit or
remedy upon any person or entity that is not a party hereto or a permitted
assignee of a party hereto. This Agreement shall be binding upon and inure to
the benefit of the Seller and Buyer and to their respective successors and
assigns, and shall be construed and enforced in accordance with the laws of
California, without regard to the choice of law provisions thereof.
[SIGNATURES FOLLOW]
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IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement as a
sealed instrument as of the date first above written.
BUYER
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Xxxxx X. Xxxxx, an individual
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Xxxx XxXxxx, an individual
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International Capital Advisory, Inc.
SELLER
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Xxxxxxx X. Xxxxxxx
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SCHEDULE 1
BUYER NAME ADDRESS/CONTACT AMOUNT OF NOTE
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EXHIBIT A
PROMISSORY NOTE
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EXHIBIT B
SECURITIES PURCHASE AGREEMENT
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