AGREEMENT IN SATISFACTION
DATE: February 1, 2006
PARTIES:
"Xxxx" Xxxxxxxx X Xxxx, Xx.
0000 Xxxxx Xxxx, Xxxx Xxxxxx, XX 00000
"Xxxxx" Xxxxx Xxxx
0000 Xxxxx Xxxx, Xxxx Xxxxxx, XX 00000
"Centale" Centale, Inc., a New York corporation
0000 X. Xxxxxxx Xxx., Xxxxx 000, Xx. Lauderdale, FL 33309
PREMISES:
1. Xxxx, Xxxxx, Centale and other parties are party to a Stock Purchase
Agreement dated June 2, 2005 (the "Stock Purchase Agreement"), to
which is annexed, among other things, a Consulting Agreement dated
June 2, 2005 (the "Consulting Agreement").
2. By a Modification to Stock Purchase Agreement dated September 14, 2005
(the "First Modification Agreement"), Centale's payment obligation
under the Consulting Agreement was replaced by a 5% Secured
Convertible Promissory Note dated September 14, 2005 (the "September
14 Note").
3. By a Modification to Stock Purchase Agreement dated October 7, 2005
(the "Second Modification Agreement"), Centale's payment obligation
under the Consulting Agreement was again replaced by a 5% Secured
Convertible Promissory Note dated October 7, 2005 (the "October 7
Note").
4. Centale has defaulted in satisfying its payment obligation under the
October 7 Note.
5. In December 2005 the Parties mutually acknowledged that the October 7
Note was uncollectible. Xxxxx therefore agreed to cancel the payment
obligation at that time on the undertaking by Centale that it would
negotiate with Xxxxx a replacement obligation on terms mutually
satisfactory.
6. The Parties wish to replace the October 7 Note with a new note, and to
cure all defaults existing under the October 7 Note.
7. Xxxxx has recently loaned additional sums to Centale on a demand
basis, none of which have been repaid, and expects to loan additional
sums to Centale after this date.
AGREEMENT:
1. Issuance of Replacement Note. Simultaneous with the execution of
this Agreement, Xxxxxxx will execute and deliver to Xxxxx a Secured
Demand Note in the principal amount of One Hundred Fifty Thousand
Dollars ($150,000) in the form annexed hereto as Appendix A and a
Pledge Agreement in the form annexed hereto as Appendix B.
2. Subsequent Loans. In the event that Xxxxx loans additional sums to
Centale after the date hereof, Centale will issue an Amendment to
Secured Demand Note in the form annexed hereto as Appendix C.
3. Grant of Stock Option. Upon execution of this Agreement, Xxxxxxx will
execute and deliver to Xxxxx the option to purchase up to 6,500,000
shares for a price of $.01 per share in the form annexed hereto as
Appendix D (the "Option").
4. Registration Statement. Promptly after the execution of this
Agreement, Centale shall prepare and file with the Securities and
Exchange Commission a registration statement and such other documents,
including a prospectus, as may be necessary in the opinion of counsel
for Centale in order to comply with the provisions of the Securities
Act, so as to permit a public sale by Xxxxx of the shares that she may
purchase upon exercise of the Option (the "Option Shares"). In
connection with the registration of the Option Shares, Centale
covenants and agrees as follows:
a) Centale will use its best efforts to cause the registration
statement to be declared effective as promptly as practicable.
b) Until either (i) the Option has been converted and all of the
Option Shares have been sold or (ii) Xxxxx will be able to
sell all of the remaining Option Shares in the public market
without a prospectus within a six month period or (iii) the
Option has terminated, the Company will file such amendments
to the registration statement as are necessary in order to
permit continued use of the prospectus.
In the event that Centale fails to file the registration statement by
April 17, 2006, there will be added to the Secured Demand Note, by
Amendment in the form of Appendix C, an amount equal to five percent
(5%) of the Implicit Damages for each month or partial month between
April 17, 2006 and the date on which the Registration Statement is
filed. The "Implicit Damages" will be the sum of (i) 6,500,000 times
(ii) the last sale price reported for Centale's common stock on April
17, 2006 less (iii) $65,000.
5. Consulting and Agency Agreements. Simultaneous with the execution of
this Agreement, Centale and Xxxx will execute a Consulting Agreement
in the form annexed hereto as Appendix E and an Agency Agreement in
the form annexed hereto as Appendix F.
6. Termination of Prior Agreements. The Stock Purchase Agreement, and
all agreements annexed to it (other than the Second Amended and
Restated Common Stock Purchase Warrant), and all modifications
thereof, are hereby terminated, and shall have no further force or
effect. The Second Amended and Restated Common Stock Purchase Warrant
shall remain in full force and effect.
7. Mutual Releases. Xxxxx and Xxxx each hereby releases and discharges
Centale from any claim or liability arising prior to the date of this
Agreement from any source or cause, except such claims and liabilities
that arise under the terms of this Agreement and the several
agreements and obligations appended to it. Centale hereby releases
and discharges each of Xxxxx and Xxxx from any claim or liability
arising prior to the date of this Agreement from any source or cause,
except such claims and liabilities that arise under the terms of this
Agreement and the several agreements and obligations appended to it.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of date
set forth on its top line.
/s/ Xxxxxxxx X. Xxxx, Xx. /s/ Xxxxx X. Xxxx
------------------------- -------------------------
XXXXXXXX X. XXXX, XX. XXXXX X. XXXX
CENTALE, INC.
By: /s Xxxx Xxxxxxxx
--------------------------
Xxxx Xxxxxxxx, President
APPENDIX A
THIS SECURITY HAS NOT BEEN REGISTERED WITH THE UNITED STATES
SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES
COMMISSION OF ANY STATE OR UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"). THE SECURITY IS RESTRICTED AND MAY
NOT BE OFFERED, RESOLD, PLEDGED OR TRANSFERRED EXCEPT AS
PERMITTED UNDER THE ACT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT OR AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS.
CENTALE, INC.
15% SECURED DEMAND PROMISSORY NOTE
Date of Issue: February 1, 2006
THIS PROMISSORY NOTE ("Note") is issued by CENTALE, INC., a New
York corporation (the "Company"), and is designated as its 15% Secured
Demand Promissory Note. This Note has been issued by the Company
pursuant to the terms of an Agreement in Satisfaction, dated as of
February 1, 2006.
FOR VALUE RECEIVED, the Company promises to pay on demand to Xxxxx
X. Xxxx, or assigns (the "Holder"), the principal sum of One Hundred
Fifty Thousand ($150,000) Dollars. Interest shall accrue at the rate of
15% per annum on the principal balance outstanding.
This Note is subject to the following additional provisions:
1. PAYMENTS. The Company shall pay the principal balance of
this Note and all accrued interest on demand of the Holder. The Company
shall also pay all accrued interest to the Holder on March 15, 2006 and
on the 15th day of every month thereafter until this Note has been
satisfied in full. The payments will be made in United States dollars by
wire transfer in accordance with the Holder's written wire transfer
instructions provided by the Holder to the Company from time to time or,
if no such instructions are provided, by delivery of a personal check in
such amount to the Holder at the address of the Holder as designated by
the Holder in writing to the Company.
2. PREPAYMENT. The Company may prepay its obligation under this
Note at any time.
3. NO RECOURSE TO STOCKHOLDERS, ETC. No recourse shall be had
for the payment of the principal of, or any interest on, this Note, or
for any claim based hereon, or otherwise in respect hereof, against any
incorporator, shareholder, employee, officer or director, as such, past,
present or future, of the Company or any successor corporation, whether
by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the
issue hereof, expressly waived and released.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed by an officer thereunto duly authorized.
Dated: February 1, 2006 CENTALE, INC.
By: /s/ Xxxx Xxxxxxxx
--------------------------
Xxxx Xxxxxxxx, President
APPENDIX B
SECURITY AGREEMENT
SECURITY AGREEMENT dated as of February 1, 2006, by and between
CENTALE, INC., a New York corporation (the "Company") and XXXXX X. XXXX
(the "Secured Party"). For value received, the Company hereby covenants
for the benefit of the Secured Party as follows:
SECTION 1. Definitions. The following terms shall have the meanings as
set forth in this Section except as otherwise indicated:
(a) "Account(s)" means all of the Company's existing and future-
created or future-acquired accounts, receivables, rights of any kind to
receive payment for property sold or leased or for services rendered,
contract rights, documents, bills, leases, rents, chattel paper,
licenses, rights to refunds or indemnification, notes, acceptances and
other forms of obligations, tax refunds, insurance proceeds and all
proceeds of the above including the right of stoppage in transit and
all books, records, computer programs, tapes, discs, software and
guaranties with respect to any of the above.
(b) "Equipment" means all of the Company's existing, future-
created and future-acquired equipment, machinery, trade fixtures,
fixtures, tools, appliances, office equipment, server equipment and
peripherals, computer software, furniture, motor vehicles and all
proceeds and products of the above as well as all related warranties,
documents and insurance policies.
(c) "Equipment Leases(s)" means all existing leases of any
Equipment or other personal property presently or in the future entered
into or acquired by the Company together with all renewal or purchase
options.
(d) "Event of Default" means any event of default listed in
Section 5.
(e) "General Intangible(s)" means all of the Company's existing,
future-acquired and future-created trade secrets, proprietary
information, know-how, inventions, good-will, patents, applications for
patents, renewals and continuation of patents, reissues, trademarks,
service marks, customer lists, distribution records and distributor
lists, sales materials and records, purchasing materials and records,
personnel records, sales order files, copyrights, manufacturing
processes, rights of payments from, or performance of, obligations by
any third party, software and computer programs and source code data
relating thereto (including all current and historical data bases) all
intangible property of any kind, all "general intangibles" of any kind
as defined in the New Jersey Uniform Commercial Code, and all rights,
agreements, records and documents relating to any of the property
described in this provision.
(f) "Instrument" means all of the Company's existing, future-
created and future-acquired "instruments" as that term is defined in
the New York Uniform Commercial Code.
(g) "Inventory" means all of the Company's existing, future-
created and future-acquired goods of every nature, kind and descrip-
tion, wherever located including all livestock, raw materials, goods,
work in process, finished goods, materials and supplies of any kind
used, or to be used in the business of the Company, including all pro-
ceeds and products of the above.
(h) "Pledged Collateral" means the collateral as so defined in
Section 2.
(i) "Real Property" means all of the Company's interest (whether
by fee or leasehold) in existing and future-acquired real estate and
buildings, in leases thereon, and in leasehold improvements.
(j) "Indebtedness" means (i) the Note; (ii) all accrued but unpaid
interest on any of the indebtedness described in (i) above, (iii) all
costs and expenses incurred by Secured Party in connection with the
protection or preservation of, or realization upon, the Collateral,
including without limitation all reasonable attorneys' fees, and
(iv) all renewals, extensions, modifications and rearrangements of the
indebtedness and obligations described in (i), (ii) and (iii) above.
(k) "Note" means the 15% Secured Demand Promissory Note dated
February 1, 2006, executed by the Company and payable on demand to the
Secured Party, and all amendments thereto or modifications thereof.
SECTION 2. Pledge. As collateral security for the Indebtedness, the Com-
pany hereby grants to the Secured Party a security interest in, and does
hereby assign to the Secured Party all right, title and interest of the
Company in and to all of the following described property, whether now
owned or hereafter acquired:
(i) Accounts, Inventory, General Intangibles, Chattel Paper,
Documents, Instruments, Equipment, Equipment Leases, and Fixtures;
(ii) Equipment Leases;
(iii) Real Property and Real Property leases;
(iv) proceeds and products of, and substitutions for, the foregoing;
(v) insurance policies and proceeds relating to the foregoing
(collectively the "Pledged Collateral").
All property comprising part of the Pledged Collateral shall
be accompanied by proper instruments of assignment duly executed by the
Company and by such other instruments or documents as the Secured Party or
his counsel may from time to time reasonably request.
TO HAVE AND TO HOLD the Pledged Collateral, together with all
rights, titles, interests, powers, privileges and preferences pertaining
or incidental thereto, unto the Secured Party and to his assigns, forever;
subject, however, to the terms, covenants and conditions hereinafter set
forth.
SECTION 3. Obligations Secured. This Security Agreement is made, and the
security interest created hereby is granted to the Secured Party, to
secure the Indebtedness.
SECTION 4. Remedies upon Default. If an Event of Default shall have
occurred and be continuing, the Secured Party may take any one or more of
the following actions, no one of which shall be deemed the Secured Party's
exclusive remedy:
(a) Repossession. proceed with judicial process, or with the
Company's consent, to take possession of all or any part of the
Pledged Collateral and the Company agrees immediately upon receipt
of notice from the Secured Party to do everything requested by such
persons to assemble, assign, transfer or deliver all Pledged
Collateral to the Secured Party and to provide the Secured Party
immediate access to the Company's principal place of business and to
every other place where any Pledged Collateral or any records of the
Company may be stored or where the Company may conduct any business;
(b) Sell Collateral. sell, assign, lease, transfer and
deliver all, or any part, of any Pledged Collateral at a private
sale or public auction for cash, upon credit or otherwise at such
prices and upon such terms as the Secured Party may deem advisable
and any requirement of reasonable notice to the Company shall be met
if notice is mailed, postage prepaid, to the Company at the address
set forth herein at least five (5) days prior to the sale or other
disposition and Secured Party may be the purchaser at any public
sale of any Pledged Collateral free of any right of redemption,
which right the Company hereby waives, and the Company further
waives any claim that any sale made in compliance with the notice
provisions of this 4(b) as commercially unreasonable;
(c) Collateral Proceeds. apply the proceeds of any sale,
collection or other disposition of any Pledged Collateral first to
all costs and expenses of sale or collection, including but not
limited to any attorneys' fees and disbursements at trial or on any
appeal and, then, to payment of any other Indebtedness in whatever
order the Secured Party may, in his discretion, elect;
(d) Direct Recourse. institute suit directly against the
Company to collect any Obligations without first foreclosing on or
liquidating any Pledged Collateral;
(e) Deficiency. hold the Company liable for any deficiency
that may remain after the sale of any Pledged Collateral;
(f) Appointment of Receiver. without regard to: (i) the ade-
quacy of the security for the obligations by virtue of this Security
Agreement or (ii) the solvency of the Company, seek the appointment
of a receiver or receivers to take possession of any or all of the
Pledged Collateral, with the power to preserve, protect, and operate
the Pledged Collateral preceding foreclosure or sale and apply the
proceeds, over and above the cost of the receivership, against the
Obligations. The receiver or receivers may serve without bond if
permitted by law;
(g) Other Creditor Remedies. exercise any right or remedy
available to a secured party under the Uniform Commercial Code or
under any other applicable law of any jurisdiction.
For purposes hereof, a written agreement to purchase all or
any part of the Pledged Collateral shall be treated as a sale pursuant to
such agreement, and the Company shall not be entitled to the return of any
Pledged Collateral subject thereto, notwithstanding the fact that after
the Secured Party shall have entered into such an agreement all Events of
Default may have been remedied or the Obligations may have been paid or
performed in full. Any sale pursuant to this Section 4 shall conform to
commercially reasonable standards as provided in Section 9-504(3) of the
Uniform Commercial Code as in effect in the State of Florida.
SECTION 5. Events of Default. For purposes of this Security Agreement,
an "Event of Default" shall exist hereunder upon the happening of any of
the following events:
(a) a failure by the Company to pay any principal on demand or to pay
any interest on the Note when due;
(b) all or any part of the Pledged Collateral shall be attached or
levied upon or seized in any legal proceedings or held by virtue of any
lien or distress;
(c) the Company shall fail to pay promptly all taxes and assessments
upon any of the Pledged Collateral; or
(d) the Company shall fail to comply with any other provision of this
Security Agreement.
It is understood and agreed that the occurrence of an event
set forth above shall constitute an Event of Default only if the Company
fails to cure such default within ten (10) days after notice of such
default (the "Default Notice") which may be given at any time after the
occurrence of such default.
SECTION 6. Return of Excess Proceeds of Sale and Cash. Any amounts
remaining from proceeds of sale of Collateral after application of
proceeds to Indebtedness under Section 4(c) shall be promptly remitted to
the Company, its successors and assigns, or as otherwise provided by law.
Application of any proceeds in accordance with the above provisions shall
be deemed to have been made at such time as cash is received.
SECTION 7. Further Assurances. The Company agrees to join with Secured
Party in executing, and to file or record, such notices, financing
statements or other documents as may be necessary to the perfection of the
security interests of Secured Party hereunder, and as Secured Party or his
counsel may reasonably request, such instruments to be in form and
substance satisfactory to Secured Party and his counsel. The Company
agrees to do such further acts and things and to execute and deliver to
Secured Party such additional conveyances, assignments, agreements and
instruments as Secured Party may at any time reasonably request in
connection with the administration and enforcement of this Security
Agreement or relative to the Pledged Collateral or any part thereof or in
order to assure and confirm unto Secured Party the rights, powers and
remedies hereunder.
SECTION 8. Governing Law. This Security Agreement has been executed and
delivered in the State of Florida and shall in all respects be construed
in accordance with and governed by the laws of such State.
SECTION 9. Binding Agreement; Assignment. This Security Agreement, and
the terms, covenants and conditions hereof, shall be binding upon and
inure to the benefit of Secured Party and his heirs, successors and
assigns, and to the Company and its successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Security
Agreement to be executed as of the day and year first above written.
CENTALE, INC.
By: /s/ Xxxx Xxxxxxxx /s/ Xxxxx X. Xxxx
------------------------- -------------------------
Xxxx Xxxxxxxx, President XXXXX X. XXXX
APPENDIX C
THIS SECURITY HAS NOT BEEN REGISTERED WITH THE UNITED STATES
SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION
OF ANY STATE OR UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"). THE SECURITY IS RESTRICTED AND MAY NOT BE OFFERED,
RESOLD, PLEDGED OR TRANSFERRED EXCEPT AS PERMITTED UNDER THE ACT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR AN EXEMPTION
FROM SUCH REGISTRATION REQUIREMENTS.
CENTALE, INC.
AMENDMENT TO
15% SECURED DEMAND PROMISSORY NOTE
Date of Issue: ____________, 2006
Centale, Inc. (the "Company") issued to Xxxxx X. Xxxx ("Xxxx") a 15%
Secured Demand Promissory Note dated February 1, 2006 (the "Note") pursuant
to an Agreement in Satisfaction dated that date. Since that date, Xxxx has
loaned to the Company the additional sum of ___________
__________________($________) Dollars (the "Additional Loan"). In
consideration of the Additional Loan, the principal amount of the Note is
hereby amended, effective on the date of issue set forth above. From this
date forward, the principal amount of the Note shall be
__________________________________ ($________) Dollars.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed by an officer thereunto duly authorized.
Dated: , 2006 CENTALE, INC.
By:___________________________
Xxxx Xxxxxxxx, President
APPENDIX D
February 1, 2006
CENTALE, INC.
COMMON STOCK PURCHASE OPTION
THIS CERTIFIES THAT, for value received, Xxxxx X. Xxxx or
registered permitted assigns (the "Holder") is hereby granted the right to
purchase, during the Exercise Period defined below, up to six million five
hundred thousand (6,500,000) fully paid and non-assessable shares of the
common stock, $.01 par value, ("Common Stock") of Centale, Inc. (the
"Company").
1. Exercise Period. The "Exercise Period" will commence on the
date set forth above. The Exercise Period will terminate on February 28,
2007.
2. Exercise Price. The "Exercise Price" per share will be One
Cent ($.01) per share, subject to adjustment as set forth in Section 6
hereof.
3. Limit to Exercise. Anything in this Option to the contrary
notwithstanding, in no event shall Holder be entitled to exercise this Option
if, upon giving effect to such exercise, the Holder and her "affiliates" (as
defined in Rule 405 under the 1933 Act) would beneficially own an aggregate
number of shares of the Company's Common Stock that would exceed 9.99% of the
outstanding shares of the Common Stock following such exercise.
4. Assignment and Registration
Subject to the provisions hereof, this Option may be transferred
on the books of the Company, wholly or in part, in person or by attorney,
upon surrender of this Option with the form of Assignment attached hereto
duly completed and executed. This Option shall be cancelled upon such
surrender and a new Option or Options shall be issued by the Company, in the
name of the person to whom such transfer is made as to the portion of this
Option transferred, and in the name of the holder of this Option as to any
portion not transferred. Each Holder hereof consents and agrees that the
Company may treat the person in whose name this Option is registered on the
books of the Company as the absolute owner hereof for all purposes and that
the Company shall not be affected by any notice to the contrary. The
foregoing notwithstanding, the Company shall have no obligation to transfer
this Option on its books, and shall not do so, unless it shall have received
evidence satisfactory to counsel for the Company that the transfer will not
violate the Securities Act of 1933, as amended, or any of the rules and
regulations promulgated thereunder, or the securities laws of any state.
5. Exercise of Option.
A. The purchase rights represented by this Option are exercisable
at the option of the Holder hereof, in whole or in part (but not as to
fractional shares of the Common Stock) during the Exercise Period as set
forth above. In the case of the purchase of less than all the shares of
Common Stock purchasable under this Option, the Company shall cancel this
Option upon the surrender hereof and shall execute and deliver a new Option
of like tenor for the balance of the shares of Common Stock purchasable
hereunder.
B. This Option may be exercised by surrender of the Option with
the annexed Exercise Form duly completed and executed together with the full
Exercise Price in cash or by wire transfer for the number of shares of Common
Stock as to which this Option is exercised, at the Company's principal
executive offices. The "Effective Date" of exercise will be the first date
on which the Company has received the completed Exercise Form and the
Exercise Price.
C. If (a) the Company's Common Stock is quoted on a public
market and (b) the Market Value of one share of Common Stock is greater than
the Exercise Price, in lieu of exercising this Option for cash, the Holder
may elect to receive shares equal to the value (as determined below) of this
Option (or the portion thereof being cancelled) by surrender of this Option
at the principal office of the Company together with the properly endorsed
Subscription Form, in which event the Company shall issue to the Holder a
number of shares of Common Stock computed using the following formula:
X = Y (A-B)
------
A
Where x = the number of shares of Common Stock to be issued to the Holder
Y = the number of shares of Common Stock purchasable
under the Option or, if only a portion of the Option
is being exercised, the portion of the Option being
exercised (at the date of such calculation)
A = the Market Value of one share of the Company's Common
Stock (at the date of such calculation)
B = Exercise Price
"Market Value" means the average closing bid price reported for the Common
Stock on its principal trading market for the five trading days preceding the
date on which the Subscription Form is received by the Company.
D. Upon the exercise of this Option, the Holder hereof shall be
entitled to receive a certificate or certificates for the number of shares of
Common Stock purchased upon such exercise and a new Option or Options
representing any unexercised portion of this Option. Each person in whose
name any certificates for Common Stock are issued shall, for all purposes, be
deemed to have become the holder of record of such Common Stock at the close
of business on the Effective Date of exercise of this Option, irrespective of
the date of delivery of such certificate, except that if the transfer books
of the Company are closed on the Effective Date, such person shall be deemed
to have become the holder of record of such Common Stock at the close of
business on the next succeeding date on which the transfer books are open.
Nothing in this Option shall be construed as conferring upon the holder
hereof any rights as a shareholder of the Company.
6. Recapitalization.
A. Stock Splits, Etc. If there is any stock dividend, stock
split, or combination of shares of Common Stock of the Company, the number
and amount of shares then subject to this Option shall be proportionately and
appropriately adjusted. No change shall be made in the aggregate purchase
price to be paid for all shares subject to this Option, but the aggregate
Exercise Price shall be allocated among all shares subject to this Option
after giving effect to the adjustment.
B. Capital Events. If there is any other change in the Common
Stock of the Company, including recapitalization, reorganization, sale or
exchange of assets, exchange of shares, offering of subscription rights, or a
merger or consolidation in which the Company is the surviving corporation, an
adjustment, if any, shall be made in the shares then subject to this Option
as the Board of Directors may deem equitable. Failure of the Board of
Directors to provide for an adjustment pursuant to this subparagraph prior to
the effective date of any Company action referred to herein shall be
conclusive evidence that no adjustment is required in consequence of such
action.
7. Notices to Option Holders.
Nothing contained in this Option shall be construed as conferring
upon the holder hereof the right to vote or to consent or to receive notice
as a shareholder in respect of any meetings of shareholders for the election
of directors or any other matters or as having any rights whatsoever as a
shareholder of the Company. If, however, at any time prior to the expiration
of the Option and prior to its exercise, any of the following events shall
occur:
(a) The Company shall take a record of the holders of its shares
of Common Stock for the purpose of entitling them to receive a dividend or
distribution; or
(b) The Company shall offer to all the holders of its Common
Stock any additional shares of capital stock of the Company or securities
convertible into or exchangeable for shares of capital stock of the Company,
or any option, right or option to subscribe therefor; or
(c) A merger or consolidation of the Company in which the Company
is not the surviving Company or the adoption of a plan of liquidation or a
sale of all or substantially all of its assets shall be proposed;
then, in any one or more of said events, the Company shall give written
notice to all holders of such event at least fifteen (15) days prior to the
date fixed as a record date or the date of closing the transfer books for the
determination of the shareholders entitled to such dividend, distribution,
convertible or exchangeable securities or subscription rights, or entitled to
vote on such proposed dissolution, liquidation, winding up or sale. Such
notice shall specify such record date or the date of closing the transfer
books, as the case may be. Failure to give such notice or any defect therein
shall not affect the validity of any action taken in connection with the
declaration or payment of any such dividend, or the issuance of any
convertible or exchangeable securities, or subscription rights, options or
options, or any proposed dissolution, liquidation, winding up or sale.
8. Successors.
All the covenants, agreements, representations and warranties
contained in this Option shall bind the parties hereto and their respective
heirs, executors, administrators, distributees, successors and assigns.
9. Law Governing.
This Option shall be construed and enforced in accordance with,
and governed by, the laws of the State of New York.
WITNESS the signature of the duly authorized Chief Operating Officer of
the Company.
CENTALE, INC.
By /s/ Xxxx Xxxxxxxx
-------------------------
Xxxx Xxxxxxxx
President
EXERCISE FORM
(To be Executed by the Registered Holder
in order to Exercise the Option)
TO: CENTALE, INC.
The undersigned, pursuant to the provisions set forth in the attached Option,
hereby irrevocably elect to purchase (check applicable box):
___ ____________ shares of the Common Stock covered by the Option; or
___ the maximum number of shares of Common Stock covered by the Option
pursuant to the cashless exercise procedure set forth in Section 3(C).
The undersigned herewith makes payment of the full purchase price for such
shares at the price per share provided for in such Option, which is
$________________. Such payment takes to form of (check applicable box):
___ $_________________ in lawful money of the United States; and/or
___ the cancellation of such portion of the attached Option as is
exercisable for a total of ______________ shares of Common Stock (using
a Market Value of $___________ per share for purposes of this
calculation); and/or
___ the cancellation of such number of shares of Common Stock as is
necessary, in accordance with the formula set forth in Section 3(C), to
exercise this Option with respect to the maximum number of shares of
Common Stock purchasable pursuant to the cashless exercise procedure
set forth in Section 3(C).
The undersigned requests that the certificates for such shares be issued in
the name of, and delivered to
______________________________________________________________ whose
address is __________________________________________________________
Dated:_______________
________________________________
(Signature must conform to name of
holder as specified on the face of
the Option)
________________________________
________________________________
(Address)
ASSIGNMENT
(To be executed by the registered holder in
order to transfer the Option)
FOR VALUE RECEIVED, _____________________________ hereby sells,
assigns and transfers unto ________________________ (Social Security No.
______________) the right to purchase ________________ shares of Common Stock
of Centale, Inc. (the "Company") evidenced by the attached Option and does
hereby irrevocably constitute and appoint
_________________________________________ attorney to transfer the said
Option on the books of the Company, with full power of substitution.
______________________________
Signature
Dated:
______________________________
Name of Registered Owner
(Print)
In the presence of:
______________________________ ______________________________
Address
NOTICE: The signature to the foregoing Assignment must correspond to the name
as written upon the face of the attached Option in every particular, without
alteration or enlargement or any change whatsoever, and must be guaranteed by
a bank (other than a savings bank) or a trust company having an office or
correspondent in New York, or a firm having membership on a registered
national securities exchange.
APPENDIX E
CONSULTING AGREEMENT
AGREEMENT made as of the 1st day of February, 2006 by and between
CENTALE, INC., a New York corporation with offices at 0000 X. Xxxxxxx Xxxxxx,
Xxxxx 000, Xxxx Xxxxxxxxxx, XX 00000 (the "Corporation"), and XXXXXXXX X.
XXXX, XX., residing at 0000 Xxxxx Xxxx, Xxxx Xxxxxx, XX 00000 ("Xxxx").
WHEREAS, the Corporation wishes to retain Xxxx to provide advice and
perform certain services to assist the Corporation in developing and
implementing its business plan, and Xxxx is willing to provide such advice
and assistance.
NOW, THEREFORE, it is agreed:
1. Consulting Services.
(a) Upon request of the Corporation's Board of Directors or its Chief
Executive Officer or its Chief Operating Officer, Xxxx shall provide advice
and consultation. Xxxx will make himself available at such times as he shall
determine in his sole discretion, based on his other business and personal
obligations. Xxxx shall not be required to devote any specific amount of
time to the performance of services hereunder, but shall devote such time as
he determines.
(b) Xxxx agrees to provide consulting services to the Corporation in
the areas of business development, investor relations, public relations, and
finance. Among the services that Xxxx may provide are the following:
* render professional advice and guidance in the development of a
strategic business plan for the Corporation;
* design a strategic financing plan commensurate with the financial
requirements of the Corporation, and assist the Corporation by
answering questions and advising on any financial or strategic
issues that may arise which affect the Corporation;
* target potential merger and acquisition candidates for the
Corporation, including: initiating direct contact with such
candidates; determining if there is an interest on the part of
any such candidate; and establishing the qualification of any
interested candidates;
* provide due diligence and assist with negotiations and
structuring potential business opportunities and operations;
* assist the Corporation with various other transactional services
and/or provide miscellaneous financial advice as may be requested
by the Corporation and which is within the scope of services
provided by Xxxx.
2. Compensation.
(a) Consulting Fee. After the conclusion of each calendar month,
Consultant shall submit an invoice to the Corporation, indicating the actual
time worked and nature of the work performed under this Agreement during the
month. Within ten days after receipt of a monthly invoice from Xxxx, the
Corporation will pay Xxxx a fee of One Hundred Seventy-Five Dollars ($175)
per hour for services identified on the invoice. At Xxxx'x option, as
indicated in the monthly invoice, the fee due to Xxxx will be paid, in whole
or in part, by issuance of common stock of the Corporation. The number of
shares to be issued will equal 200% of (i) the cash fee due divided (ii) the
average last sale price of the common stock for the last five trading days in
the month. Payment by the Corporation to Xxxx shall not be subject to any
deductions; however, Xxxx agrees to indemnify the Corporation should Xxxx
fail to pay any assessments or taxes due on Consultant's compensation
hereunder.
(b) Life Insurance. The Corporation has purchased a universal life
insurance policy on Xxxx'x life which will pay to the beneficiaries
designated by Xxxx from time to time a death benefit of One Million Dollars
($1,000,000) in the event of Xxxx'x death. The Corporation will continue to
pay all premiums on said policy when due throughout the Term of this
Agreement.
(c) Health Insurance. The Corporation will reimburse Xxxx for all
premiums paid by him during the Term of this Agreement for health insurance
covering Xxxx and his immediate family.
(d) Reimbursement of Business Expenses. Xxxx shall be entitled to
reimbursement of all reasonable business expenses actually incurred by Xxxx
in the discharge of Xxxx' duties hereunder, including expenses for
entertainment, travel, employee training and similar items, upon submission
to the Corporation with satisfactory documentation thereof.
3. Term.
(a) The "Term" of this Agreement shall commence on the date of this
Agreement and shall terminate on February 28, 2008.
(b) Prior to the date set forth in Section 3(a), this Agreement may be
terminated as follows:
(i) by Xxxx at any time, upon ten days written notice to the
Corporation;
(ii) by the Corporation for Cause. As used herein, the term "Cause"
shall mean only the following: (A) conviction during the Term of a crime
involving moral turpitude, or (B) material, willful or gross misconduct by
Xxxx in the performance of his duties hereunder.
4. Covenant of Non-Competition. In consideration of the undertakings
by the Corporation herein, Xxxx covenants for the benefit of the Corporation
and the shareholders thereof as follows:
(a) The "Restricted Period" for purposes of this Covenant shall
commence on the date of this Agreement and shall continue for a period ending
on the date which is one year after the date on which this Agreement
terminates.
(b) During the Restricted Period Xxxx shall not, directly or
indirectly, as an employee, consultant or principal, through equity ownership
or otherwise, for himself or for any other person, engage in, or assist any
other person to engage in, any Competitive Activities. For purposes hereof,
"Competitive Activities" shall include the following:
(i) Directly or indirectly soliciting, diverting, taking away or
attempting to solicit, divert, or take away any business opportunities
which became available to the Corporation or any of its subsidiaries or
affiliated entities during the Term of this Agreement;
(ii) Engaging in (A) the business of marketing desktop software
applications, (B) the business of compiling and/or marketing databases,
or (C) the business of generating and/or marketing marketing leads; or
(iii) Hiring, offering to hire, enticing away or in any
manner persuading or attempting to persuade any person affiliated (as
employee or as independent contractor) with the Corporation or any
affiliate or subsidiary of the Corporation to discontinue his
relationship with such company, or to become employed by any other
entity.
5. Indemnification. The Corporation shall indemnify and hold Xxxx
harmless against claims, losses, expenses, damages or other liabilities,
including reasonable attorney's fees and costs of investigation, asserted by
any third party (collectively, "Losses") incurred as a result of Xxxx'x
services on behalf of the Corporation, both prior to and after the date of
this agreement, including services as an officer, executive, or member of the
Board of Directors, except to the extent that such are caused by the
intentional or willful misconduct of Xxxx, which misconduct is proven in an
unappealable judgment of a court of competent jurisdiction. In the event any
action, proceeding or claim is asserted against Xxxx, Xxxx shall promptly
deliver notice of such action, proceeding or claim to the Corporation and
Xxxx shall then cooperate in the defense against the claim. The Corporation
shall defend and pay all costs and expenses (including costs and expenses of
counsel) incurred in such defense. The Corporation shall have the exclusive
right to select legal counsel, reasonably acceptable to Xxxx, and to settle
the action. No settlement of any action against Xxxx shall be made without
Xxxx'x consent, which consent shall not be unreasonably withheld.
6. Governing Law. This Agreement shall be governed by and interpreted
in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
CENTALE, INC.
By: /s/ Xxxx Xxxxxxxx
--------------------------
Xxxx Xxxxxxxx, President
/s/ Xxxxxxxx X. Xxxx, Xx.
--------------------------
XXXXXXXX X. XXXX, XX.
APPENDIX F
AGENCY AGREEMENT
AGREEMENT made this 1st day of February, 2006 between CENTALE, INC., a
New York corporation with offices at 0000 X. Xxxxxxx Xxxxxx, Xxxxx 000, Xxxx
Xxxxxxxxxx, XX 00000 (the "Company") and XXXXXXXX X. XXXX, XX., with
offices at 0000 Xxxxx Xxxx, Xxxx Xxxxxx, XX 00000 (herein referred to as "the
Agent").
WHEREAS, the Company is engaged in the business of developing and
licensing Web-based desktop software applications ("Applications") as well as
email databases and related marketing programs ("Databases"), and Agent
wishes to market the Applications and the Databases.
NOW, THEREFORE, it is agreed:
1. Scope of Appointment as Agent.
1.1 The Company hereby appoints Agent as an authorized sales
representative for the Applications and the Databases. Agent may market the
Applications and Databases to all potential customers, except that the
Company and Agent will from time to time by mutual agreement exclude certain
potential customers from the scope of Agent's agency as necessitated by the
development of the Company's distribution programs.
1.2 During the Term hereof Agent shall be entitled to appear as an
authorized representative of the Company at trade shows, conventions and the
like (e.g. NIBA, FSX, NIRI, etc.) for the purposes of marketing the
Applications and Databases. The Company will reimburse Agent for any
reasonable expenses incurred in making such appearances, including travel,
lodging and food expenses.
1.3 Upon initiating a marketing relationship with a potential
customer, Agent will identify the customer to the Company in writing (the
"Customer Notice"). Unless the Company, within three days of receipt of the
Customer Notice, provides Agent with documentary evidence that the Company
has within the six months prior to receipt of the Customer Notice, carried on
substantial two-way marketing discussions with the customer identified in the
Notice, that customer will be deemed a "Xxxx Customer" for all purposes
hereunder.
1.4 Agent is authorized to utilize independent dealers, distributors
and subcontractors in connection with the marketing of the Applications and
Databases, except that Agent may not assign to any of them the right to use
the Databases provided to him hereunder.
2. Compensation. If the Company licenses an Application or a
Database to a Xxxx Customer within one year after receipt of the Customer
Notice with respect to that Xxxx Customer, the Company shall pay to the Agent
fifty-five percent (55%) of the Gross Revenue received from the Sponsor. For
this purpose, "Gross Revenue" will be the fees and other revenue paid by the
Sponsor to the Company in cash or by transfer of personal property, including
license fee, hosting fee, maintenance fee, and any other payment to the
Company for goods or services. Payment from the Company to the Agent will be
due when the Company receives the related payment from the Sponsor. Payment
by the Company to the Agent will be due with respect to the initial contract
between the Company and the Sponsor and any replacement for same and with
respect to any other business transaction between the Company and the
Sponsor. Payment will be due, notwithstanding the termination of this Sales
Agency Agreement, with respect to any Gross Revenue received from the Sponsor
during the ten years following the initial transaction between the Company
and the Sponsor.
3. Limited Warranties to Agent; Indemnification by the Company.
3.1 The Company warrants that the Applications and Databases will be
free from defect when delivered. However, the Company's sole obligation for
any breach of this limited warranty shall be, in the Company's sole option,
(a) to repair the defect or (b) refund the fees paid by the customer. The
Company further warrants that (a) it is the owner of or has licenses in the
technology and intellectual property underlying the Applications, and (b) it
is not aware of any third party patents, trademarks or copyrights that would
be infringed by the use of the Applications or Databases by Agent or by a
Xxxx Customer.
3.2 THE FOREGOING LIMITED WARRANTIES ARE IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, BY THE COMPANY INCLUDING, BUT NOT LIMITED TO,
THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
3.3 The Company will indemnify and hold the Agent harmless from any
third party claims arising from a breach of any of the foregoing warranties.
4. Exclusive Dealings. During the Term hereof and for six (6)
months following the termination of this Agreement (other than termination by
the Agent for cause), the Agent shall not distribute, or act as an agent or
representative of any developer, publisher, or manufacturer, of (i) any
software program that includes a desktop application or of (ii) email
databases.
5. Term and Termination. The "Term" of this Agreement shall commence
on the date hereof and continue until February 28, 2009. The termination
date may be extended to February 28, 2012 if Agent gives notice of such
extension no less than ten days prior to the termination date. In the event
that within one year after termination of this Agreement the Company licenses
an Application or a Database to a Xxxx Customer, then the Company shall pay
to the Agent the compensation provided in Section 2 hereof.
6. Database License. Throughout the Term hereof, Xxxx shall be
entitled to use any and all Databases owned by the Company or licensed to the
Company. Xxxx may use such Databases for the purpose of marketing the
products and services offered by any entity in which Xxxx or a member of
Xxxx'x immediate family has an ownership interest of at least ten percent
(10%).
7. Successors and Assigns. This Agreement and the rights hereunder
may not be assigned by either party. This Agreement shall be binding upon
and inure to the benefit of the parties and their respective successors,
permitted assigns and legal representatives.
8. Entire Agreement. This Agreement contains the entire agreement
of the parties hereto and supersedes all prior agreements and understandings,
oral or written, between the parties hereto or their respective
representatives with respect to the matters herein and shall not be modified
or amended except by written agreement signed by the parties to be bound
thereby.
9. Governing Law. This Agreement shall be construed and interpreted
in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth on the first page.
CENTALE, INC.
By: /s/ Xxxx Xxxxxxxx /s/ Xxxxxxxx X. Xxxx, Xx.
------------------------ --------------------------
Xxxx Xxxxxxxx, President XXXXXXXX X. XXXX, XX.
