1
EXHIBIT 10.7
AGREEMENT
This agreement ("Agreement") is made by and between MigraTEC, Inc.,
formerly One Up Corporation (hereinafter "MigraTEC"), a corporation at 00000
Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx Xxxxxx, Xxxxx, 00000 and Xxxxxxx X. Xxxx
(hereinafter "Xxxx"), located at XX-00, Xxx 000, Xxxx Xxxxx, Xxxxxxx, 00000.
Whereas, the parties agree and acknowledge that there are outstanding
issues related to matters which have occurred prior to the date of this
Agreement concerning possible claims which MigraTEC may have against Xxxx and
possible claims which Xxxx may have against MigraTEC; and
Whereas, the parties agree and acknowledge that they wish to resolve
and settle any and all of the outstanding issues and claims which either party
might have against the other related to or arising out of the employment of Xxxx
by MigraTEC or the duties of Xxxx as President and a director of MigraTEC; and
Whereas, in addition to settling all issues and claims between the
parties, the parties desire to arrange for the purchase by MigraTEC and sale by
Xxxx of certain shares of common stock in MigraTEC Corporation owned by Xxxx;
and
Whereas, the parties agree and acknowledge that the settlement of all
outstanding issues and claims which either party might have against the other
pursuant to the terms and conditions of this Agreement is fair, equitable and in
the best interests of both parties,
Now, in exchange for the mutual promises and obligations contained
herein, MigraTEC and Xxxx agree according to the terms of this Agreement which
follow:
1. Purchase And Sale Of Shares. MigraTEC agrees to purchase from Xxxx and
Xxxx agrees to sell to MigraTEC Nine Million Four Hundred Thousand
(9,400,000) shares of common stock in MigraTEC (hereinafter "the
Shares") pursuant to the terms of this Agreement.
2. Payment For Shares. MigraTEC agrees to pay Xxxx for the Shares the
amount of Seven Hundred Forty Thousand Dollars ($740,00.00) in the form
of cash or cashier's check at Closing as provided hereunder.
3. Registration Obligation. The parties hereby acknowledge and agree that
Xxxx will continue to own two million one thousand nine hundred
seventy-six (2,001,976) shares of unregistered common stock of MigraTEC
(the "Remaining Stock") after MigraTEC's purchase of the Shares as set
forth above. It is
1
2
agreed that MigraTEC, at its own cost, will file a registration
statement including the registration of such Remaining Stock, or will
take other appropriate and necessary steps including but not limited to
obtaining an attorney's opinion letter as required by the SEC rules and
regulations to allow free trading of such Remaining Stock, no later
than May 1, 1998. MigraTEC will use its best efforts to see that such
stock registration or free trading status becomes effective as soon as
practicable after the filing of said registration statement or the
issuance of said opinion letter. It is expressly understood and agreed
that MigraTEC shall be barred from selling, conveying, or assigning, by
private placement or otherwise, any and all shares purchased by
MigraTEC hereunder unless and until Xxxx' said Remaining Stock shall be
registered, if necessary, and free trading. In no event shall MigraTEC,
after the effective date of this Agreement, undertake the registration
of any common stock in MigraTEC which does not include the registration
of the Remaining Stock.
4. Stock Option. As additional consideration to Xxxx for Xxxx' release of
MigraTEC as set forth herein below, MigraTEC hereby grants Xxxx a
transferable option to purchase up to Six Hundred Thousand (600,000)
shares of unrestricted and free trading common stock in MigraTEC at the
price of Twenty-Five Cents ($.25) per share. Such option shall become
effective on the effective date of this Agreement and shall expire at
5:00 P.M. on the two year anniversary of the effective date of this
Agreement. In order to exercise such option, in whole or in part, it is
agree that MigraTEC must receive payment from Xxxx, prior to the
expiration of the option, in the form of a cashier's check in the
correct amount for the number of shares being purchased. It is agreed
by the parties that the option covered by this section shall be
transferable by Xxxx subject to the exercise terms of the option.
5. Payment of Promissory Note. MigraTEC agrees to pay Xxxx the amount of
Sixty Thousand Dollars ($60,000.00) to Xxxx at Closing as provided
hereunder, in the form of cash or cashier's check, in full and complete
settlement of all obligations related to the Promissory Note from
MigraTEC to Xxxx, a copy of which is attached hereto as Attachment A to
Exhibit C.
6. Mutual Releases. The parties agree that they will execute the
applicable releases attached hereto as Exhibit B and Exhibit C at the
closing along with delivery of such other items as set forth
hereinafter in Section 9 below.
7. Xxxxxxx Xxxxxxx Issues. As further consideration for the obligations of
Xxxx hereunder, MigraTEC agrees to pay to Xxxxxxx Xxxxxxx the amount of
$68,250.00 pursuant to the terms of the Promissory Note attached hereto
as Exhibit D.
2
3
8. Indemnification. With respect to the purchase of the Shares pursuant to
sections 1 and 2 of this Agreement, MigraTEC hereby agrees to indemnify
and hold Xxxx harmless with regard to any obligations which Xxxx might
have, as well as any rights or claims which MigraTEC, EAI Partners,
Inc., and/or Noble International Investments, Inc. might have pursuant
to that certain Stock Option Agreement, dated November 12, 1996, by and
among Xxxx, MigraTEC and EAI Partners, Inc.
9. Closing. The parties hereto agree that a mutually acceptable place,
time and date shall be selected by the parties for closing (hereinafter
the "Closing"). At the Closing, MigraTEC shall deliver to Xxxx the
following: (1) payment by cash or cashier's check in the amount of
Seven Hundred Forty Thousand Dollars ($740,000.00) referenced in
Section 2 hereinabove; (2) payment by cash or cashier's check in the
amount of Sixty Thousand Dollars ($60,000.00) referenced in Section 5
hereinabove; (3) a common stock certificate evidencing Two Million One
Thousand Nine Hundred Seventy-Six (2,001,976) shares of common stock in
MigraTEC, which stock certificate represents the remaining stock of
Xxxx in accordance with Section 3 hereinabove; and, (4) the original
release referred to in Section 6 hereinabove. At the Closing, Xxxx
shall deliver to MigraTEC the following: (1) common stock certificates
no. 2559, 2560, 2561, 2562, and 2563, collectively representing and
evidencing Six Million (6,000,000) shares of common stock in MigraTEC,
duly executed for transfer to MigraTEC by Xxxx, and expressly subject
to the above-referenced Option Agreement dated November 12, 1996, among
Xxxx, MigraTEC and EAI Partners, Inc. as noted on the face of each said
stock certificate; (2) common stock certificate no. 2565 representing
and evidencing Five Million Four Hundred One Thousand Nine Hundred
Seventy-Six (5,401,976) shares of common stock in MigraTEC duly
executed for transfer to MigraTEC by Xxxx, in exchange for which
MigraTEC shall contemporaneously deliver to Xxxx a common stock
certificate evidencing Two Million One Thousand Nine Hundred
Seventy-Six (2,001,976) shares of common stock in MigraTEC, which stock
certificate represents the Remaining Stock of Xxxx in accordance with
Section 3 hereinabove; and, (3) the original release referred to in
Section 6 hereinabove.
10. Notices. Any notice, payment, demand, or communication, required or
permitted to be given by any provision of this Agreement shall be
deemed to have been sufficiently given or served for all purposes if
delivered personally to the party or to an officer of the party to whom
the same is sent or directed or sent by registered or certified mail,
postage and charges prepaid, addressed as follows:
3
4
If to Xxxx: Xxxxxxx X. Xxxx
XX-00, Xxx 000
Xxxxxxxxx, XX 00000
If to MigraTEC, Inc: MigraTEC, Inc.
00000 Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx Xxxxxx, XX 00000
11. Severability. The provisions of this Agreement are severable and, if
any of these provisions shall be held by any Court of competent
jurisdiction to be unenforceable, such holding shall not affect the
validity or impair the remainder of this Agreement. In the event of any
claim or holding regarding the invalidity or illegality of any
provision of this Agreement, it is expressly understood and agreed that
Xxxx shall have no liability whatsoever in such event and that Xxxx
shall be held harmless and be indemnified by MigraTEC for any liability
or loss suffered by Xxxx.
12. Sole Agreement. This Agreement constitutes the entire understanding of
the parties hereto with respect to the subject matter hereof, and no
amendment, modification, or authorization of the terms hereof shall be
binding unless the same shall be in writing, dated subsequent to the
date hereof, and duly approved and executed by the parties hereto.
13. Escrow Agent. It is understood and agreed by the parties that Xxxxxxx
Xxxx Xxxxxxx, Attorney at Law and counsel for Xxxx in this matter,
shall be the designated escrow agent, to whom the parties shall deliver
all payments, stock certificates, and releases as provided in Section 9
hereinabove. Furthermore, the parties authorize said escrow agent to
deliver all such payments, stock certificates, and releases to each
respective party, only upon full and complete compliance with the
provisions in Section 9 hereinabove.
14. Attorney's Fees. In the event that either party commences an action to
enforce, interpret, or modify any term(s) or provision(s) of this
Agreement, the prevailing party shall be awarded his or its reasonable
attorney's fees and expenses incurred therein.
15. Assignability. Subject to the limits of transferability contained
herein, each and all of the covenants, terms, provisions, and
agreements herein contained shall be binding upon and inure to the
benefit of the successors and assigns of the respective parties hereto.
4
5
IN WITNESS WHEREOF, the respective parties have executed this Agreement
effective as of this 25th day of March, 1998.
MigraTEC, Inc. Xxxxxxx X. Xxxx
By: /s/ XXXXXX XXXXXXXXXX /s/ XXXXXXX X. XXXX
--------------------------- ------------------------------------
Print Name: Xxxxxx Xxxxxxxxxx Print Name: Xxxxxxx X. Xxxx
------------------- -------------------------
Title: President
------------------------
Effective Date: March 25, 1998
---------------
STATE OF MONTANA )
: ss.
County of Yellowstone )
On this 25th day of March, 1998, before me, a Notary Public for the State
of Montana, personally appeared Xxxxxxx X. Xxxx, known to me to be the person
whose name is subscribed to the within instrument, and acknowledged to me that
he executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Official
Seal on the day and year in this certificate first above written.
/s/ [ILLEGIBLE]
--------------------------------------
Notary Public for the State of Montana
(SEAL) Residing at Billings
My Commission Expires: December 21, 0000
XXXXX XX XXXXX )
: ss.
County of Dallas )
On this 31st day of March, 1998, before me, a Notary Public for the State
of Texas, personally appeared Xxxxxx Xxxxxxxxxx, known to me to be the
President of MigraTEC, Inc., a Florida corporation, the corporation that
executed the foregoing instrument, and acknowledged to me that such corporation
executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Official
Seal on the day and year in this certificate first above written.
/s/ XXXX XXXXXXXX
------------------------------------
Notary Public for the State of Texas
[SEAL] Residing at ________________________
My Commission Expires: 03/17/99
5
6
EXHIBIT A
PROMISSORY NOTE
$56,000.00 Date: August 15, 1996
For value received, the undersigned One Up Corporation, Westlake, Texas (the
"Promisor") promises to pay to the order of Xxxxxxx X. Xxxx (the "Payee"), at
XX-00, Xxx 000, Xxxxxxxxx, XX 00000, (or at such other place as the Payee may
designate in writing) the sum of $56,000.00 with interest from August 15, 1996,
on the unpaid principal at the rate of 8.00 percent annually.
The unpaid principal and accrued interest shall be payable on demand. All
payments on this Note shall be applied first in payment of accrued interest and
any remainder in payment of principal.
If any payment obligation under this Note is not paid when due, the Promisor
promises to pay all costs of collection, including reasonable attorney fees,
whether or not a lawsuit is commenced as part of the collection process.
If any of the following events of default occur, this Note and any other
obligations of the Promisor to the Payee, shall become due immediately, without
demand or notice:
1) the failure of the Promisor to pay the principal and any accrued interest in
full on or before the Due Date;
2) the death of the Promisor(s) or Payee(s);
3) the filing of bankruptcy proceedings involving the Promisor as a Debtor;
4) the application for appointment of a receiver for the Promisor;
5) the making of a general assignment for the benefit of the Promisor's
creditors;
6) the Insolvency of the Promisor; or
7) the misrepresentation by the Promisor to the Payee for the purpose of
obtaining or extending credit.
If any one or more of the provisions of this Note are determined to be
unenforceable, in whole or in part, for any reason, the remaining provisions
shall remain fully operative.
All payments of principal and interest on this Note shall be paid in the legal
currency of the United States. Promisor waives presentment for payment,
protest, and notice of protest and nonpayment of this Note.
No renewal or extension of this Note, delay in enforcing any right of the Payee
under this Note, or assignment by Payee of this Note shall affect the liability
of the Promisor. All rights of the Payee under this Note are cumulative and
may be exercised concurrently or consecutively at the Payee's option.
This Note shall be construed in accordance with the laws of the State of Texas.
Signed this 15th day of August, 1996 at
Westlake, Texas
--------------------------------------------------
One Up Corporation, Westlake, Texas
By: /s/ XXXXX XXXXXXXXX
-----------------------------------------------
One Up Corporation, Westlake, Texas
Xxxxx Xxxxxxxxx, Vice President
-2-
7
EXHIBIT B
GENERAL RELEASE
For and in consideration of good and valuable consideration, including
without limitation the release of even date herewith from Xxxxxxx X. Xxxx
(hereinafter "Xxxx"), the receipt and sufficiency of which is hereby
acknowledged, MigraTEC, Inc., formerly One Up Corporation (hereinafter referred
to as "MigraTEC"), releases Xxxxxxx X. Xxxx, his successors and assigns
(hereinafter referred to as the "Releasees") of and from any and all actions,
causes of action, suits, charges and obligations, debts, sums of money,
accounts, contracts, controversies, agreements, promises, damages, claims, and
demands whatsoever, in law, or equity which MigraTEC ever had, now has, claims
to have or hereinafter can, shall or may for any reason have, against the
Releases arising out of any matter or event occurring contemporaneously with or
before the execution of this General Release, including, without limiting the
generality of the foregoing, all such claims arising from or related to the
employment of Xxxx by MigraTEC or related to Xxxx' duties as an officer and
director of MigraTEC.
IN WITNESS WHEREOF, this General Release has been executed as of the
Effective Date set forth below.
MigraTEC, Inc.
By: /s/ XXXXXX XXXXXXXXXX
-----------------------------
Print Name: Xxxxxx Xxxxxxxxxx
---------------------
Title: President
--------------------------
Secretary: /s/ XXXX XXXXXXX
----------------------
Print Name: Xxxx Xxxxxxx
---------------------
Corporate Seal:
8
EXHIBIT C
GENERAL RELEASE
For and in consideration of good and valuable consideration, including
without limitation the release of even date herewith MigraTEC, Inc., formerly
One Up Corporation (hereinafter "MigraTEC"), the receipt and sufficiency of
which is hereby acknowledged, Xxxxxxx X. Xxxx (hereinafter referred to as
"Xxxx"), releases MigraTEC, Inc., its officers, directors, employees,
successors and assigns (hereinafter referred to as the "Releasees") of and from
any and all actions, causes of action, suits, charges and obligations, debts,
sums of money, accounts, contracts, controversies, agreements, promises,
damages, claims, and demands whatsoever, in law, or equity which Xxxx ever had,
now has, claims to have or hereinafter can, shall or may for any reason have,
against the Releases arising out of any matter or event occurring
contemporaneously with or before the execution of this General Release,
including, without limiting the generality of the foregoing, all such claims
arising from or related to the employment of Xxxx by MigraTEC or the promissory
note from MigraTEC to Xxxx, a copy of which is attached hereto as Attachment A.
IN WITNESS WHEREOF, this General Release has been executed as of the
Effective Date set forth below.
Xxxxxxx X. Xxxx
Signature: /s/ XXXXXXX X. XXXX
-------------------------------
Print Name: Xxxxxxx X. Xxxx
------------------------------
Closing Date of Agreement, Dated march 25, 1998,
Effective Date: Between the Parties Hereto
--------------------------
Witnessed By: /s/ XXXXXXX XXXX XXXXXXX
----------------------------
Print Name: Xxxxxxx Xxxx Xxxxxxx
------------------------------
9
EXHIBIT D
PROMISSORY NOTE
$68,250.00 March 30, 1998
The undersigned, for value received, promise to pay to the order of
Xxxxxxx Xxxxxxx at 0000 X. Xxxxxxxx #000, X. Xxxxx, XX 00000, the sum of
SIXTY-EIGHT THOUSAND TWO HUNDRED FIFTY AND NO/100 DOLLARS ($68,250.00), with no
interest thereon as hereinafter provided.
Payments of ONE THOUSAND AND NO/100THS DOLLARS ($1,000.00) shall be made
on or before the 10 day of each month with the first of such payments being due
and payable on or before April 10, 1998, and like payments being due on or
before the ___ day of the next sixty-seven months thereafter with the remaining
$250.00 balance of such this Promissory Note being due and payable on or before
December 10, 2003.
Payments are to be made in lawful money of the United States in the form
of cashier's checks.
In addition to, and not in limitation of, the foregoing, the undersigned
further agrees, subject only to any limitation imposed by applicable law, to
pay all expenses, including reasonable attorney's fees and reasonable legal
expenses, incurred by the holder of this Promissory Note in endeavoring to
collect any amounts payable hereunder which are not paid when due, whether by
acceleration or otherwise.
The undersigned hereby waives diligence, presentment, protest and demand,
and also notice of intent to accelerate and of acceleration, notice of default,
notice of protest, demand, dishonor or nonpayment of this Promissory Note.
The undersigned shall have the right to prepay in whole or in part the
unpaid balance of the principal amount of this Promissory Note at anytime or
from time to time.
If any part of this Promissory Note shall be declared invalid, the
remainder thereof shall, nevertheless, remain in full force and effect.
MigraTEC, Inc,
(formerly One Up Corporation)
By: /s/ XXXXXX XXXXXXXXXX /s/ XXXX XXXXXXX
---------------------------- ----------------------------
Xxxxxx Xxxxxxxxxx, President Secretary