RECISSION AGREEMENT made and entered into as of the th day of April, 2000,
by and among Xxxxxx X. Xxxxxxx ("Xxxxxxx") and Spherics Limited ("Spherics",
Cardone and Spherics shall be collectively known as the "Parties").
W I T N E S S E T H
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WHEREAS, the Parties are desirous for the termination of the Letter of
Intent dated December 8, 1999 to which Cardone and Spherics are parties (the
"Letter of Intent"); and
WHEREAS, the Parties are desirous of releasing each other from all legal
liability associated with the Letter of Intent.
NOW, THEREFORE, in consideration of the foregoing premises and covenants,
agreements, representations and warranties herein contained, the parties hereto
agree as follows:
1. Transfer of the Funds. (a) The Parties hereby agree that no funds were
transferred pursuant to the Letter of Intent and that the Escrow Agent does not
presently hold nor did it ever hold funds pursuant to the Letter of Intent.
2. The Closing. The date of closing shall be when all of the conditions set
forth in this Agreement have been satisfied or waived by the respective parties
in writing.
3. Mutual Releases. All of the parties to this Agreement, as well as any
officers, directors, shareholders, agents, successors, assignees and
representatives of the parties, for valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, does hereby release, remise, acquit
and forever discharge the others and all of their respective executors, heirs,
affiliates, representatives, administrators, predecessors, successors and
assigns, from any and all known, unknown, matured and unmatured, liquidated and
unliquidated, contingent and non-contingent, actions, causes of action, claims,
demands, damages, costs, suits, debts, dues, sums of money, accounts,
reckonings, bills, covenants, contracts, liens, controversies, agreement,
promises, variances, trespasses, extents and executions whatsoever, at law or in
equity (collectively, the "Claims") which the Parties had, have or may have
arising out of or in whole or in part at any time prior to the execution of this
Agreement related to the transaction effected under the Letter of Intent dated
as of December 8, 1999. The release given herein shall be and remain in effect,
as a full and complete release of such Claims, notwithstanding discovery or
existence or any additional or
different claims or facts. Provided that nothing in this release shall act to
release any party from any claims which arise as a result of a breach of this
Agreement notwithstanding the basis for such claim. THIS RELEASE MAY NOT BE
CHANGED ORALLY.
4. Choice of Law. This Agreement shall be governed by, and construed with,
the laws of the State of New York, without giving effect to conflict of laws
principals thereof, and in any action to enforce or interpret or arising under
any of the provisions of this agreement, the parties expressly agree to submit
to the jurisdiction of any Federal or State court sitting in New York County,
State of New York.
5. Escrow Agent's Rights and Duties. (a) All of the parties to this
Agreement agree to indemnify Xxxxxxx, Xxxxxxx & Xxxxxxx, LLP, the Escrow Agent
as that term is defined in the Letter of Intent for and hold it harmless against
any loss, liability, damage, claim or expense (including the reasonable fees and
disbursements of its attorneys) incurred by or asserted against the Escrow
Agent, arising out of or in connection with its entering into the escrow account
herein referenced, the performance of its duties hereunder and otherwise in
respect hereof, including the costs and expenses of defending itself against any
claim or liability in the premises, except that we shall not be liable hereunder
as to matters in respect of which the Escrow Agent is determined to have acted
with gross negligence or in bad faith. The Escrow Agent shall have no liability
to any of the parties to this Agreement or to any person in respect to any
action taken or any failure to act in respect of this Escrow Agreement if such
action was taken or omitted to be taken in good faith, and Escrow Agent shall be
entitled to rely in this regard on the advice of counsel.
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(b) The Escrow Agent may assume that any notice or instruction received by
it hereunder is authentic and has been duly and validly given, pursuant to due
authorization by or on behalf of the person by which or on behalf of which it
purports to be given, and the Escrow Agent shall have no duty to inquire with
respect thereto.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and
seals as of the date first above written.
XXXXXX X. XXXXXXX
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
SPHERICS LIMITED
By: Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Corporate Counsel and
Authorized Agent
As Escrow Agent:
XXXXXXX, XXXXXXX & XXXXXXX, LLP
By:
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Xxxxxx X. Xxxxxxx
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