Exhibit 10.3
AGREEMENT
This Agreement is made and entered into as of June 6, 2002, by and between
Multimedia Concepts International, Inc., a Delaware corporation ("MCII"), having
an address at 0000 Xxxxxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx, X.X. Biomedical
Corp., a Delaware corporation ("USBC"), having an address at 0000 Xxxxxxxx,
Xxxxx 000, Xxx Xxxx, Xxx Xxxx, and European American Capital Corp., a British
Virgin Island corporation ("EACC"), having an address at X.X. Xxx 00, Xxxx Xxxx
Xxxxxxx, Xxxxxxx Xxxxxx Xxxxxxx.
Recitals
WHEREAS, MCII is a publicly traded company whose common stock trades on
the Over the Counter Bulletin Board ("OTCBB") under the symbol "MMCI".
WHEREAS, shares of MCII's Common Stock currently trade at a price of
$.03 per share as reported on the OTCBB;
WHEREAS, USBC is a publicly traded company whose common stock trades on
the OTCBB under the symbol "USBH".
WHEREAS, MCII owns 3,571,249 shares of common stock, $.001 par value
per share, constituting approximately 78.5% of the issued and
outstanding shares of Common Stock of USBC, and Xxxx Xxxxx serves as an
executive officer and director of USBC;
WHEREAS, EACC is a privately held company of which Xxxx Xxxxx is an
executive officer and a director;
WHEREAS, by virtue of Xxxx Xxxxx'x position as an executive officer and
director and as a result of his beneficial ownership of shares of MCII,
each of the companies are under the common control of Xxxx Xxxxx;
WHEREAS, USBC is currently in debt to EACC in the amount of $230,986.59
(the "Debt");
WHEREAS, due to its current financial situation, USBC is currently
unable to repay the Debt to EACC;
WHEREAS, in lieu of payment by USBC and release by EACC of all of
USBC's obligations and responsibilities owed to EACC in connection with
the Debt, MCII has agreed to deliver 3,299,808 shares of Common Stock
of MCII to EACC (the "Shares");
WHEREAS, the Shares are being issued to EACC at a valuation of $.07 per
share, which is $.04 above MCII's current market price of $.03 per
share as reported on the OTCBB. MCII acknowledges that EACC is paying
$.04 over the current market value for the Shares and that the delivery
of the Shares to EACC is on terms that are more than favorable;
WHEREAS, in consideration of the issuance of the Shares by MCII to
EACC, USBC has agreed to deliver a promissory note, whereby it has
agreed to pay $230,986.59 to MCII;
NOW, THEREFORE, in consideration of the foregoing premises and
representations, warranties and agreements contained herein, and for
good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEBT
Section 1.1 Release of Debt
EACC hereby releases and forever discharges USBC and its officers, directors,
agents, employees, successors, assigns and legal representatives from all
actions, causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims, demands and/or liabilities of any nature whatsoever in
connection with the Debt, whether or not now known, suspected or claimed,
arising on or before the date hereof, relating to any matter whatsoever, which
EACC, had, now has or may claim to have now against USBC and its officers,
directors, agents, employees, successors, assigns and legal representatives.
Section 1.2 Issuance of Promissory Note
In consideration of the issuance of the Shares by MCII to EACC, USBC hereby
agrees to deliver a promissory note to MCII, whereby USBC promises to pay to
MCII (the "Holder"), the principal sum of $230,986.59 in such coin or currency
of the United States of America as at the time of payment shall be legal tender
for the payment of public and private debts (the "Note"). USBC further promises
to pay interest on the unpaid principal balance hereof at the rate of ten
percent (10%) per annum, such interest to be paid annually, on the last day of
each year, commencing on December 31, 2002. The principal sum is to be paid
three years from the date on which the Note is dated. Interest shall be
calculated on the basis of a 360 day year and actual days elapsed.
ARTICLE II
ISSUANCE OF COMMON STOCK
2.1 Issuance and Delivery of the Shares
(a) In consideration of the release and discharge of the Debt set forth under
Section 1.1 of this Agreement, the Shares shall be delivered to EACC and consist
of newly issued shares of Common Stock.
(b) The Shares to be delivered shall be fully paid and non-assessable and shall
be free and clear of all liens, levies and encumbrances except that such shares
shall be "restricted securities" as that term is defined pursuant to Rule 144,
promulgated under the Securities Act of 1933 ("Rule 144"), as amended (the "1933
Act").
(c) MCII shall deliver certificates evidencing the Shares to EACC upon the
execution of this Agreement.
2.2 Investment Intent
(a) EACC is acquiring the Shares for its own account, not as nominee or
agent, for investment and not with view to, or for resale in connection
with, any distribution or public offering thereof within the meaning of
the 1933 Act.
(b) EACC understands: (a) that the Shares have not been registered
under the 1933 Act by reason of a specific exemption therefrom, that
they must be held by EACC, indefinitely, and that EACC must, therefore,
bear the economic risk of such investment indefinitely, unless a
subsequent disposition thereof is registered under the 1933 Act or is
exempt from such registration; (b) the stock certificates representing
the Shares will be endorsed with the following legend:
"THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), AND MAY NOT BE
SOLD, TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL
REGISTERED UNDER THE 1933 ACT, OR UNLESS THE COMPANY HAS RECEIVED AN
OPINION OF COUNSEL OR OTHER EVIDENCE SATISFACTORY TO THE COMPANY AND
ITS COUNSEL, THAT SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS
EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF
THE 1933 ACT."
(c) MCII may instruct any transfer agent not to register the transfer
of any of the Shares unless the conditions specified in the foregoing
legend are satisfied.
(d) EACC acknowledges that it is a sophisticated investor, can bear the
economic risk of its investment in the Shares, and has such knowledge
and experience in financial or business matters that it is capable of
evaluating the merits and risks of this transaction and the investment
in the Shares.
(e) EACC further represents that it is an "accredited investor" within
the meaning of SEC Rule 501 of Regulation D, as presently in effect and
promulgated under the 1933 Act.
ARTICLE III
REQUIRED ACTIONS
All actions and proceedings necessary to be taken by or on the part of
MCII, USBC and EACC in connection with the transactions contemplated by
this Agreement have been duly and validly taken, and this Agreement and
each other agreement, document and instrument to be executed and
delivered by or on behalf of MCII, USBC or EACC pursuant to, or as
contemplated by, this Agreement (collectively, the "Documents") has
been duly and validly authorized, executed and delivered by MCII, USBC
or EACC and no other action on the part of MCII, USBC or EACC or its
representatives is required in connection therewith. MCII, USBC and
EACC have full right, authority, power and capacity to execute and
deliver this Agreement and each other Document and to carry out the
transactions contemplated hereby and thereby. This Agreement and each
other Document constitutes, or when executed and delivered will
constitute, the legal, valid and binding obligation of MCII, USBC or
EACC, enforceable in accordance with its respective terms.
ARTICLE IV
MISCELLANEOUS
4.1 Notices
All notices requests, demands, waivers and other communications
required or permitted to be given under this Agreement shall be in
writing and shall be deemed to have been duly given on the date if
delivered personally, or upon the second business day after it shall
have been deposited by certified or registered mail with postage
prepaid, or upon the next business day after it shall have been
deposited with a nationally recognized overnight courier such as
federal express, or sent by telex, telegram or telecopier, as follows
(or at such other address or facsimile number for a party as shall be
specified by like notice):
(a) if to MCII, to it at: with a copy to:
Multimedia Concepts Xxxxxxx Xxxxxxxxx, Esquire
International, Inc. Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP
0000 Xxxxxxxx, Xxxxx 000 1065 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, XX 00000
Fax: (000) 000-0000 Fax: (000) 000-0000
(b) if to USBC, to it at: with a copy to:
U.S. Biomedical Corp. Xxxxxxx Xxxxxxxxx, Esquire
0000 Xxxxxxxx, Xxxxx 000 Sichenzia Xxxx Xxxxxxxx Xxxxxxx XXX
Xxx Xxxx, Xxx Xxxx 00000 1065 Avenue of the Americas
Fax: (000) 000-0000 Xxx Xxxx, XX 00000
Fax: (000) 000-0000
4.2 Assignability; Binding Effect
This Agreement shall not be assignable by any party except with the
written consent of all other parties to this Agreement. This Agreement
shall be binding upon and shall inure to the benefit of, the parties
hereto and their respective successors and assigns.
4.3 Headings
The subject headings used in this Agreement are included for purposes
of convenience only and shall not affect the construction or
interpretation of any of its provisions.
4.4 Amendments; Waivers
This Agreement may not be amended or modified, nor may compliance with
any condition or covenant set forth herein be waived, except by a
writing duly and validly executed by MCII, USBC and EACC or, in the
case of a waiver, the party or parties waiving compliance. No delay on
the part of any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any waiver on
the part of any party of any such right, power or privilege, or any
single or partial exercise of any such right, power or privilege,
preclude any further exercise thereof or the exercise of any other such
right, power or privilege.
4.5 Entire Agreement
This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and supersedes and cancels
any and all prior or contemporaneous arrangements, understandings and
agreements between them relating to the subject matter hereof.
4.6 Severability
In the event that any provision or any portion of any provision of this
Agreement shall be held to be void or unenforceable, then the remaining
provisions of this Agreement (and the remaining portion of any
provision held to be void or unenforceable in part only) shall continue
in full force and effect.
4.7 Governing Law
This Agreement and the transactions contemplated hereby shall be
governed and construed by and enforced in accordance with the laws of
the State of New York, without regard to conflict of laws principles.
4.8 Counterparts
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original and all of which shall constitute the
same instrument.
4.9 Expenses
Each party shall pay its own expenses incident to the negotiation,
preparation and performance of this Agreement and the transactions
contemplated hereby, including all fees and expenses of its counsel and
accountants for all activities of such counsel and accountants
undertaken pursuant to this Agreement, whether or not the transactions
contemplated hereby are consummated.
4.10 Remedies
It is specifically understood and agreed that certain breaches of this
Agreement will result in irreparable injury to the parties hereto, that
the remedies available to the parties at law alone will be an
inadequate remedy for such breach, and that, in addition to any other
legal or equitable remedies which the parties may have, a party may
enforce its rights by an action for specific performance and the
parties expressly waive the defense that a remedy in damages will be
adequate.
4.11 Dispute Resolution
Except as provided below, the parties agree to submit disputes between
them relating to this Agreement and its formation, breach, performance,
interpretation and application to arbitration as follows. Each party
will provide written notice to the other party of any dispute within
one year of the date when the dispute first arises or occurs. If a
party fails to provide such notice, recovery on the dispute will be
barred. Arbitration will be conducted in New York, New York pursuant to
the Rules of the American Arbitration Association ("AAA"), as modified
herein. The arbitration shall be conducted by one (1) arbitrator chosen
in accordance with the rules of the AAA. Unless the arbitrator finds
that exceptional circumstances require otherwise, the arbitrator will
grant the prevailing party in arbitration its costs of arbitration and
reasonable attorneys' fees as part of the arbitration award. Either
party will be entitled to receive in any court of competent
jurisdiction injunctive, preliminary or other equitable relief, in
addition to damages, including court costs and fees of attorneys and
other professionals, to remedy any actual or threatened violation of
its rights with respect to which arbitration is not required hereunder.
4.12 Third Party Rights
This Agreement is for the benefit of the parties hereto and is not
entered into for the benefit of, and shall not be construed to confer
any benefit upon, any other party or entity.
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IN WITNESS WHEREOF, MCII, USBC and EACC have caused this Agreement to
be executed as of the date first above written.
Multimedia Concepts International, Inc.
By: ____________________________
Name: Xxxx Xxxxx
Title: President
U.S. BIOMEDICAL CORP.
By: ____________________________
Name: Xxxx Xxxxx
Title: President
EUROPEAN AMERICAN CAPITAL CORP.
By: ____________________________
Name:
Title:
