Exhibit 10.2
AGREEMENT
This Agreement is dated March 10, 2005, by and between ERC Solutions, Inc.,
a Delaware corporation ("ERC") and New Century Energy Corp., formerly Vertica
Software, Inc., a Colorado corporation ("New Century") (the "Agreement").
W I T N E S S E T H:
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WHEREAS, New Century recently completed a reverse merger transaction,
pursuant to an Agreement and Plan of Reorganization ("Reorganization"), with
Century Resources, Inc., a Delaware corporation ("Century"), whereby Century
became a wholly owned subsidiary of New Century;
WHEREAS, pursuant to the terms of the Reorganization, New Century was to
have no liabilities on September 30, 2004 at the time of the closing of the
Reorganization (the "Closing");
WHEREAS, at the Closing, New Century had approximately $1,048,671 in
liabilities; and
WHEREAS, ERC desires to assume and New Century desires for ERC to assume
the Liabilities.
NOW, THEREFORE, in consideration of the premises and the mutual covenants,
agreements, and considerations herein contained, and in the Reorganization, the
parties hereto agree as follows:
1. Assumption of the Liabilities.
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ERC acknowledges its obligation to assume the $1,048,671 in
liabilities which were listed on the books of New Century at the time
of the Closing and any liabilities incurred by New Century in
connection with, and/or related to the business of ERC, either before
or after the Closing (the "Liabilities"). ERC additionally agrees that
the assumption of the Liabilities should relate back to the date of
the Closing, and that therefore, the effective date of this agreement
shall be the date of the Closing.
2. Legal Fees and Costs Associated with the Liabilities
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ERC agrees that any and all legal fees and/or costs incurred by New
Century in connection with any litigation, arbitration, discovery
and/or research in connection with the Liabilities shall be paid by
ERC ("Costs").
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3. Consideration for the Assumption of Liabilities.
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ERC acknowledges that, pursuant to, and in connection with the
Reorganization, Trust Receipt and Irrevocable Instructions, Agreement
and Plan of Distribution Agreement, and Technology Assignment
Agreement (the "Closing Agreements"), New Century was to have no
liabilities at the time of the Closing, and therefore in connection
with the Reorganization and spinoff transaction involving ERC, ERC
agrees to assume the Liabilities and Costs of New Century.
Furthermore, ERC agrees that this Agreement does not alter, amended,
supplement or otherwise modify any of ERC's obligations and duties
under the Closing Agreements, including, but not limited to, Article 2
and Article 3 of the Agreement and Plan of Distribution Agreement,
dealing with indemnification.
In connection with the Reorganization and spinoff transaction
involving ERC, New Century agrees to allow ERC to assume the
Liabilities.
4. Indemnification. ERC shall indemnify, defend and hold harmless
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New Century and each of New Century's officers, directors, agents and
affiliates from and against any damage, loss, claim, liability, cost
or expense, including fees and disbursements of counsel, accountants,
experts and other consultants (collectively, "Damages"), resulting
from, arising out of, or based upon the Liabilities and/or Closing
Documents.
5. Indemnification Procedures. Promptly after receipt by New
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Century (the "Indemnitee"), of notice of any action, suit, proceeding, audit,
claim or potential claim (any of which is hereinafter individually referred to
as a "Circumstance"), which could give rise to a right to indemnification for
damages pursuant to Section 4, the Indemnitee shall give the party who may
become obligated to provide indemnification hereunder, ERC (the "Indemnitor")
written notice describing the Circumstance in reasonable detail; provided, that
failure of an Indemnitee to give such notice to the Indemnitor shall not relieve
the Indemnitor from any of its indemnification obligations hereunder unless (and
then only to the extent) that the failure to give such notice prejudices the
defense of the Circumstance by the Indemnitee. Such Indemnitor shall have the
right, at its option and upon its acknowledgment to the Indemnitee of
Indemnitor's liability to indemnify Indemnitee in respect of such asserted
liability, to compromise or defend, at its own expense and by its own counsel,
any such matter involving the asserted liability of the Indemnitee; provided,
that any such compromise (i) shall include as an unconditional term thereof the
giving by the claimant or the plaintiff to such Indemnitee of a release from all
liability in respect of such claim and (ii) shall not result in the imposition
on the Indemnitee of any remedy other than monetary damages to be paid in full
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by the Indemnitor. If any indemnitor shall undertake to compromise or defend
any such asserted liability, it shall promptly notify the Indemnitee of its
intention to do so, and the Indemnitee agrees to, and to cause its own
independent counsel to, cooperate fully with the Indemnitor and its counsel in
the compromise of, or defense against, any such asserted liability. All
reasonable out-of-pocket costs and expenses incurred by the Indemnitee in
connection with such cooperation (including, without limitation, the reasonable
fees and expenses of the Indemnitee's own independent counsel) shall be borne by
the Indemnitor. In any event, the Indemnitee shall have the right to
participate with its own counsel (the reasonable fees and expenses of which will
be borne by Indemnitor) in the defense of such asserted liability; provided that
if with respect to a Circumstance, Indemnitor shall have acknowledged
Indemnitor's liability to indemnify Indemnitee if and to the extent of any loss
arising out of such Circumstance and Indemnitor shall be diligently defending
such matter, Indemnitor shall not be obligated to indemnify Indemnitee for the
cost of Indemnitee's participation in such defense, including Indemnitee's
attorney's fees. Under no circumstances shall the Indemnitee compromise any
such asserted liability without the written consent of the Indemnitor (which
consent shall not be unreasonably withheld), unless the Indemnitor shall have
failed or refused to undertake the defense of any such asserted liability after
a reasonable period of time has elapsed following the notice of a Circumstance
received by such Indemnitor pursuant to this Section.
5. Miscellaneous
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(a) Assignment. All of the terms, provisions and conditions of this
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Agreement shall be binding upon and shall inure to the benefit of and
be enforceable by the parties hereto and their respective successors
and permitted assigns.
(b) Applicable Law. This Agreement shall be construed in
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accordance with and governed by the laws of the State of Texas,
excluding any provision which would require the use of the laws of any
other jurisdiction.
(c) Entire Agreement, Amendments and Waivers. This Agreement
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constitutes the entire agreement of the parties hereto and expressly
supersedes all prior and contemporaneous understandings and
commitments, whether written or oral, with respect to the subject
matter hereof. No variations, modifications, changes or extensions of
this Agreement or any other terms hereof shall be binding upon any
party hereto unless set forth in a document duly executed by such
party or an authorized agent or such party.
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(d) Waiver. No failure on the part of any party to enforce any
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provisions of this Agreement will act as a waiver of the right to
enforce that provision.
(e) Section Headings. Section headings are for convenience only
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and shall not define or limit the provisions of this Agreement.
(f) Effect of Facsimile and Photocopied Signatures. This Agreement
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may be executed in several counterparts, each of which is an original.
It shall not be necessary in making proof of this Agreement or any
counterpart hereof to produce or account for any of the other
counterparts. A copy of this Agreement signed by one party and faxed
to another party shall be deemed to have been executed and delivered
by the signing party as though an original. A photocopy of this
Agreement shall be effective as an original for all purposes.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first written above.
ERC SOLUTIONS, INC. NEW CENTURY ENERGY CORP.
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/s/ Xxxxxxx Xxxxx /s/ Xxxxxx X. XxXxxxxxx
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Xxxxxxx Xxxxx Xxxxxx X. XxXxxxxxx
President President
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