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EXHIBIT 10.12
PURCHASE AGREEMENT
BETWEEN GLOBAL AND XXXXXXX
This Purchase Agreement dated July 22, 1998, is entered into by and
between GLOBAL RESEARCH SYSTEMS, INC., a Georgia corporation, 000 Xxxxxxxx Xxxxx
Xxxx, XX, Xxxx, Xxxxxxx 00000 (hereinafter "GLOBAL") and XXXXXXX, INC., a
Delaware corporation, 0000X Xxxxxxx Xxxx, Xx. Xxxxx, Xxxxxxxx 00000 (hereinafter
"XXXXXXX").
WHEREAS, GLOBAL desires to sell to XXXXXXX and XXXXXXX desires to
purchase from GLOBAL certain capital assets, properties, and rights related to
an advance notification system for notifying users in advance of the impending
arrival of a transportation vehicle at a particular location subject to the
terms and conditions hereinafter set forth.
NOW, THEREFORE in consideration of the mutual promises and covenants
herein contained, the parties agree as follows:
1. DEFINITIONS: The following terms, whether in all caps or not,
shall have the following meanings as used herein:
a. ADVANCE NOTIFICATION SYSTEM: System having both vehicle tracking and
messaging in the form of notifying users in advance of the impending arrival of
vehicles being tracked at particular locations but shall exclude any system
involving only one of the subsystems of vehicle tracking or messaging used other
than in conjunction with one another.
b. AFFILIATE: With respect to any party, any company, persons or
entities who control, directly or indirectly, more than fifty percent (50%) of
the voting capital or share participation of such party (a party's "parent
company") and any company, firm or other entity more than fifty percent (50%) of
whose issued and voting capital or share participation is owned or controlled,
directly or indirectly, by said party or its parent company, but only for so
long as said ownership or control shall continue.
c. AFTER ACQUIRED INTELLECTUAL PROPERTY: All Patents, Trademark and
Copyrights limited to the Field and the Territory relating to After Acquired
Technology.
d. AFTER ACQUIRED TECHNOLOGY: All improvements, enhancements,
modifications, extensions and other developments to the Technology limited to
the Field and the Territory hereafter owned, licensed, developed, or acquired
during the term of the Technology Agreement.
e. ASSIGNMENT AGREEMENTS: Those certain Assignments of even date
herewith (as same may be amended or supplemented from time to time) made by
XXXXXXX and by GLOBAL as assignors and transferors to the HOLDING VENTURE as
assignee and transferee.
f. COPYRIGHTS: All registered and unregistered copyrights, including
but not limited to all copyrights in and to computer software source code and
object code, relating to the ADVANCE NOTIFICATION SYSTEM limited to the Field
and the Territory now or hereafter owned, licensed, developed or acquired during
the term of the Technology Agreement.
g. DEFERRAL PERCENTAGE: That percentage determined as one (1) minus the
then current highest combined marginal federal and State of Georgia income tax
rate imposed upon a taxpayer (whether corporate or an individual).
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h. FIELD: The tracking through the use of an Advance Notification
System of the transportation of humans via motor vehicle roadways, including,
for example but not limited to, transportation of humans via bus, automobile,
van, taxi, etc., and excluding, for example but not limited to, transportation
of humans via train, plane, boat, etc. Furthermore, FIELD shall not include the
tracking of the transportation of goods, products, freight, objects, or other
nonhuman things by any vehicle or transportation means whatsoever.
i. FORCE MAJEURE: The inability to accomplish an action when
attributable to fires, strikes, riots, explosions, power blackouts, wars, labor
disputes, government requirements, civil or military authorities, acts of God or
the public enemy, outside vendors or transportation facilities, acts or
omissions of carriers or other causes beyond the control of the parties, whether
or not similar to the foregoing conditions. Upon the occurrence of a FORCE
MAJEURE circumstance, the party to the occurrence will immediately notify and
advise the other party in writing.
j. HIGHWAYMASTER PATENTS: U.S. Patent Nos. 5771455, 5539810, 5544225,
5519621, 5579376, 5652707, 5694322, and 5699275.
k. HOLDING VENTURE: Buscall Properties, LLC, a Georgia limited
liability company, the operations of which are governed by the HOLDING VENTURE
OPERATING AGREEMENT.
l. HOLDING VENTURE OPERATING AGREEMENT: That certain Operating
Agreement of even date herewith as may be amended from time to time between
GLOBAL and XXXXXXX, governing HOLDING VENTURE.
m. INTELLECTUAL PROPERTY: All rights and interests in the PATENTS,
COPYRIGHTS and TRADEMARKS, limited to the FIELD and the TERRITORY, including
AFTER ACQUIRED INTELLECTUAL PROPERTY.
n. LICENSE OR LICENSE AGREEMENT: That certain Exclusive License
agreement of even date herewith between HOLDING VENTURE and OPERATING VENTURE as
may be amended from time to time granting OPERATING VENTURE a license in the
INTELLECTUAL PROPERTY and other TECHNOLOGY pursuant to the terms and conditions
set forth therein. Such license is limited to the FIELD and to the TERRITORY.
o. MANUFACTURING AGREEMENT: That certain Manufacturing Agreement of
even date herewith between XXXXXXX and the OPERATING VENTURE (as the same may be
amended from time to time).
p. MIDWEST WIRELESS AGREEMENT: That certain Midwest Wireless Agreement
of even date herewith between GLOBAL and Midwest Wireless Communications, LLC,
dated April 6, 1998.
q. OPERATING VENTURE: NotiCom International, LLC, a Georgia limited
liability company.
r. OPERATING VENTURE OPERATING AGREEMENT: That certain Operating
Agreement of even date herewith between GLOBAL and XXXXXXX governing the
OPERATING VENTURE, as the same may be amended from time to time.
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s. PATENTS: All rights and interests in patents and patent applications
relating to the ADVANCE NOTIFICATION SYSTEM limited to the Field and the
Territory now or hereafter owned, licensed, developed or acquired during the
term of the TECHNOLOGY AGREEMENT. "Patents" shall include all issued patents and
applications, including but not limited to, provisionals, divisions,
continuations, and continuations-in-part, in any country of the world or filed
with a multi-country regional patent office, for example but not limited to, the
European Patent Office (EPO) or a designated office of the Patent Cooperation
Treaty (PCT). "Patents" shall specifically include the patents and patent
applications set forth as follows:
Title of Invention Patent Number/Serial Number and Filing Date
A. Advance Notification System And Method Utilizing A U.S. Serial No. 08/852,119
Distinctive Telephone Ring Filed: May 9, 1995 (Abandoned)
B. Advance Notification System And Method Utilizing a U.S. Serial No. 08/762,052
Distinctive Telephone Ring Filed: December 9, 1996
C. Advance Notification Systems and Methods Utilizing A U.S. Serial No. 08/852,119
Computer Network Filed: May 6, 1997
D. System and Method For Enciphering And Communicating To Be Finalized and Filed In U.S. Patent and
Vehicle Tracking Information Trademark Office
E. System and Method For Activation Of An Advance To Be Finalized and Filed In U.S. Patent and
Notification System For Monitoring And Reporting Trademark Office
Status Of Vehicle Travel
F. System And Method For An Advance Notification System To Be Finalized and Filed In U.S. Patent and
For Monitoring And Reporting Status Of Vehicle Travel Trademark Office
G. Advance Notification System And Method Patent No. 5,400,020
Issued: March 21, 1995
H. Advance Notification System And Method Utilizing Patent No. 5,657,010
Vehicle Progress Report Generator Issued: August 12, 1997
I. Advance Notification System And Method Utilizing Patent No. 5,668,543
Passenger Calling Report Generator Issued: September 15, 1997
J. Advance Notification System And Method Utilizing Patent No. 5,623,543
Passenger-Definable Notification Time Period Issued: April 22, 1997
K. Advance Notification System For Use With Vehicular PCT Application No.: PCT/US96/15983
Transportation Filed: October 3, 1996
L. Advance Notification Systems And Methods Utilizing A PCT Application No.: PCT/US98/04540
Computer Network Filed: March 9, 1998
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t. PRODUCTS: Those devices, systems, or apparatus to implement or
practice the TECHNOLOGY in the FIELD in the TERRITORY, for example but not
limited to, a vehicle control unit as defined in any of said issued patents.
u. PURCHASE AGREEMENT: This Agreement as the same may be amended from
time to time.
v. SUCCESSOR IN INTEREST: Any other person or entity succeeding to the
possession or ownership of any material portion of the HOLDING VENTURE'S assets
or business operations.
w. TECHNICAL INFORMATION: All know-how, trade secrets, data,
manufacturing techniques, proprietary information, business data and plans
relating to the ADVANCE NOTIFICATION SYSTEM limited to the Field and the
Territory now or hereafter owned, licensed, developed or acquired during the
term of the TECHNOLOGY AGREEMENT.
x. TECHNOLOGY: Collectively, the COPYRIGHTS, PATENTS, TECHNICAL
INFORMATION, TRADEMARKS and all other tangible and intangible rights and
property relating to the ADVANCE NOTIFICATION SYSTEM limited to the Field and
the Territory now or hereafter owned, licensed, developed or acquired during the
term of the TECHNOLOGY AGREEMENT, including AFTER ACQUIRED TECHNOLOGY.
y. TECHNOLOGY AGREEMENT: That certain Technology Agreement of even date
herewith as the same may be amended from time to time between XXXXXXX, GLOBAL,
the OPERATING VENTURE and the HOLDING VENTURE.
z. TERRITORY: United States and Canada.
aa.TRADEMARKS: (i) The trademark BUS-CALL, which trademark has been
registered in the United States Patent and Trademark Office as registration
number 1,870,806; (ii) the trademark BUSCALL for which an application has been
filed February 24, 1998, having serial number 75\442993; (iii) all variations
and designs encompassing such trademarks limited to the Field and the Territory;
(iv) all related trade names limited to the Field and the Territory; and (v) all
other trademarks and trade names relating to the ADVANCE NOTIFICATION SYSTEM
limited to the Field and the Territory now or hereafter owned, licensed,
developed or acquired during the term of the TECHNOLOGY AGREEMENT.
2. SALE OF ASSETS: Subject to the terms and conditions hereunder
and the TECHNOLOGY AGREEMENT, GLOBAL does hereby assign, sell, transfer, grant
and convey unto XXXXXXX, and XXXXXXX'x successors and assigns, a fifty percent
(50 %) undivided interest in and to all rights, title and interest owned and
held by GLOBAL in and to the INTELLECTUAL PROPERTY, existing at present and
agrees to assign unto XXXXXXX and XXXXXXX'x successors and assigns, a fifty
percent (50%) undivided interest in and to all rights, title and interest owned
and held by Global in the AFTER ACQUIRED INTELLECTUAL PROPERTY. Subject to the
terms and conditions hereunder and the TECHNOLOGY AGREEMENT, for and in
consideration of GLOBAL'S transfer and conveyance of such rights to XXXXXXX
hereunder, XXXXXXX hereby agrees, subject to the terms and conditions contained
herein, to assign, sell, transfer, grant and convey unto GLOBAL and GLOBAL's
successors and assigns, a fifty percent (50 %) undivided interest in and to all
rights, title and interest owned and held by XXXXXXX in the AFTER ACQUIRED
INTELLECTUAL PROPERTY of XXXXXXX. Each party agrees to execute all such
instruments, agreements, conveyance documents or other items as the any other
party hereto
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reasonably requests in order to fulfill the purposes hereof including the
transfer and conveyance of any future rights acquired, obtained or developed in
the INTELLECTUAL PROPERTY, including AFTER ACQUIRED INTELLECTUAL PROPERTY. All
parties acknowledge and agree that the provisions of this Section 2 shall not
apply to any party's receipt of any INTELLECTUAL PROPERTY or AFTER ACQUIRED
INTELLECTUAL PROPERTY by reason of the dissolution of or the distribution
thereof by the HOLDING VENTURE or the OPERATING VENTURE.
3. CONSIDERATION FOR ACQUIRED ASSETS: As consideration for GLOBAL'S
transfer and assignment to XXXXXXX of those rights in and to the INTELLECTUAL
PROPERTY of GLOBAL as specified hereunder, XXXXXXX shall pay to GLOBAL the
following amounts upon the following terms and conditions:
a. Simultaneously with the execution of this Agreement by XXXXXXX,
XXXXXXX shall pay to GLOBAL cash in the amount of One Million Six Hundred
Eighty-Six Thousand Dollars ($1,686,000) in immediately available funds by wire
transfer to such account as GLOBAL shall designate.
b. In addition to that payment required under Section 3.a. above and as
additional consideration and purchase price paid by XXXXXXX for GLOBAL'S
transfer and conveyance of the aforesaid interest in and to the INTELLECTUAL
PROPERTY of GLOBAL to the extent specified herein, XXXXXXX shall pay the
following amounts to GLOBAL upon the following terms and conditions:
(i) Attached hereto as Exhibit "A" and made a part hereof are
GLOBAL'S projections relating to the combined results of operations of the
HOLDING VENTURE and the OPERATING VENTURE.
(ii) For purposes of the following calculations, the following
terms shall have the following meanings:
A. "EBT" means the combined earnings before taxes of both the
HOLDING VENTURE and the OPERATING VENTURE calculated in accordance with U.S.
generally acceptable accounting principles using normal industry practices by
the independent accountants then performing services for the HOLDING VENTURE and
the OPERATING VENTURE; provided that in the event of the dissolution of either
the HOLDING VENTURE or the OPERATING VENTURE or the distribution by either the
HOLDING VENTURE or the OPERATING VENTURE of any of its respective assets
consisting of or relating to the INTELLECTUAL PROPERTY or the AFTER ACQUIRED
INTELLECTUAL PROPERTY, EBT shall mean all such earnings before taxes of the
recipient of such assets (as well as such recipient's SUCCESSOR IN INTEREST) as
derived from or attributable to such assets.
B. "Cumulative EBT" means the aggregate EBT from July 1, 1998
through the date as of which such calculation is being made.
C. "Projected EBT" means GLOBAL'S projected EBT as set forth
on Exhibit "A".
(iii) If the Cumulative EBT as of any Payment Calculation Date
(the middle column below) is 75% or greater of Projected EBT as of such Payment
Calculation Date, XXXXXXX will pay GLOBAL as additional purchase price hereunder
cash in the amount set forth in the corresponding "Amount" column below on the
corresponding "Due Date" set forth below:
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Amount Payment Calculation Date Due Date
$2,790,000 12/31/99 03/30/00
2,790,000 06/30/00 08/14/00
2,790,000 12/31/00 03/31/01
2,790,000 06/30/01 08/14/01
2,790,000 12/31/01 03/31/02
1,395,000 06/30/02 08/14/02
1,395,000 12/31/02 03/31/03
(iv) If the Cumulative EBT through a Payment Calculation Date
set forth below is 50% or greater but less than 75% of the Projected EBT for
such period, XXXXXXX will pay GLOBAL cash in the amount set forth in the
corresponding "Amount" column below on the corresponding "Due Date" set forth
below:
Amount Payment Calculation Date Due Date
$1,395,000 12/31/99 03/30/00
1,395,000 06/30/00 08/14/00
1,395,000 12/31/00 03/31/01
1,395,000 06/30/01 08/14/01
1,395,000 12/31/01 03/31/02
697,500 06/30/02 08/14/02
697,500 12/31/02 03/31/03
(v) If the Cumulative EBT through a Payment Calculation Date
(middle column below) exceeds the Projected EBT through such Payment Calculation
Date by 25% or more, XXXXXXX shall pay to GLOBAL, as additional purchase price
and in addition to amounts payable by XXXXXXX pursuant to Sections 3.b.(iii) or
3.b.(iv) above, cash in the amount set forth in the corresponding "Amount"
column below on the corresponding "Due Date" set forth below:
Amount Payment Calculation Date Due Date
$ 930,000 12/31/99 03/30/00
1,860,000 12/31/00 03/31/01
1,860,000 12/31/01 03/31/02
1,860,000 12/31/02 03/31/03
(vi) If on any Payment Calculation Date, Cumulative EBT is
less than the required percentage of Projected EBT, the Amount with respect to
such Payment Calculation Date shall not be paid, even if in subsequent periods
the deficit is made up.
(vii) The parties agree that in the event XXXXXXX takes any
income tax reporting position (whether with any federal, state, local or any
other taxing authority) that any payments made by XXXXXXX to GLOBAL hereunder
are other than capital expenditures being required to be capitalized and
depreciated over the useful life of the INTELLECTUAL PROPERTY conveyed
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hereunder, then all payments set forth in any of the foregoing Amount columns
shall be increased by 7.527% of the amount otherwise set forth in such column.
(viii) All parties hereto agree that the Projected EBT is not a
guarantee or warranty of GLOBAL of actual EBT or profitability and GLOBAL shall
have no liability to XXXXXXX, the HOLDING VENTURE, the OPERATING VENTURE, or any
other person or entity if Projected EBT is not achieved.
(ix) In the event Projected EBT is not achieved on account or as
a result of either (a) XXXXXXX'x default under the terms of the MANUFACTURING
AGREEMENT, as determined thereunder, or (b) the delay of XXXXXXX'X performance
of its obligations under the MANUFACTURING AGREEMENT by reason of the occurrence
of any event constituting "Force Majeure" (as defined and determined under the
MANUFACTURING AGREEMENT), then, in such event, the periods or dates provided for
any calculations and payments required pursuant to this Section 3.b. shall be
tolled until either such default is cured by XXXXXXX or the expiration of any
tolling period provided under the MANUFACTURING AGREEMENT with respect to any
Force Majeure, whichever is applicable.
(x) In the event any Projected EBT as of any date or for any
period not be achieved by reason of the occurrence of any event of FORCE MAJEURE
(as defined under this Agreement) affecting any one or more of the HOLDING
VENTURE, the OPERATING VENTURE, then, in such event, the periods or dates
provided for any calculations and payments pursuant to this paragraph 3.b shall
be tolled until such event of FORCE MAJEURE no longer exists; provided (i) any
tolling shall only apply if the HOLDING VENTURE or the OPERATING VENTURE
reasonably substantiates that the FORCE MAJEURE was the substantiating cause of
nonachievement of any Projected EBT; (ii) no single tolling shall exist for more
than three months; (iii) the HOLDING VENTURE or the OPERATING VENTURE must
notify XXXXXXX of any claim of tolling within thirty (30) days of the beginning
occurrence claimed to be a FORCE MAJEURE; (iv) no tolling shall occur on a claim
of FORCE MAJEURE relating to a potential or prospective customer but shall only
apply (if to a customer) in relation to actual purchase orders; and (v) all
tolling shall not exceed in the aggregate more than six (6) months.
(xi) Any dispute between GLOBAL and XXXXXXX with respect to the
determination of EBT which cannot be resolved by them within thirty (30) days
after the receipt by them of EBT from the independent accountants (the "Venture
Accountants") performing services for the HOLDING VENTURE and the OPERATING
VENTURE, such dispute will be submitted by the Venture Accountants to a
nationally recognized independent accounting firm for determination which
determination shall be final, binding and conclusive upon all parties.
(xii) As of any Due Date set forth above, in the event XXXXXXX does
not received cumulative cash distributions (determined on a combined basis) from
the OPERATING VENTURE and the HOLDING VENTURE equal or greater than the
cumulative payments due from XXXXXXX to GLOBAL under Section 3.b. as of such Due
Date, then XXXXXXX may, at its option, elect to further defer a portion not
greater than the DEFERRAL PERCENTAGE of the payment then due and owing from
XXXXXXX to GLOBAL on such Due Date hereunder provided that in no event shall the
payment so deferred be deferred for longer than two (2) years from and after the
Due Date thereof and all payments so deferred shall bear interest at the rate of
two percent (2%) above the base rate (prime rate) then charged by the primary
financial institution utilized by the OPERATING VENTURE from the original Due
Date thereof until the date such amount is actually paid with all such interest
being paid by XXXXXXX to GLOBAL not less frequently than quarterly.
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4. ASSIGNMENT TO HOLDING VENTURE. GLOBAL AND XXXXXXX each agrees to
transfer and assign to the HOLDING VENTURE its respective fifty percent (50%)
interest in the INTELLECTUAL PROPERTY pursuant to valid assignments
substantially in the form of the Assignment Agreement. Except as otherwise
mutually agreed to, during the term of this Agreement, GLOBAL and XXXXXXX each
agree to promptly transfer and assign to the HOLDING VENTURE all AFTER ACQUIRED
INTELLECTUAL PROPERTY owned or held by such party pursuant to a valid assignment
substantially in the form of the Assignment Agreements.
5. TERM. The term of this Agreement shall commence upon the date hereof
and shall continue indefinitely until terminated upon the earlier of (i) the
termination of the TECHNOLOGY AGREEMENT or (ii) such time as GLOBAL or XXXXXXX
ceases to be a party to the TECHNOLOGY AGREEMENT. All obligations of XXXXXXX to
make any payments to GLOBAL under Section 3.b. of this Agreement shall survive
the Termination of this Agreement only in the event XXXXXXX acquires or
otherwise succeeds to the interest of GLOBAL in the HOLDING VENTURE or OPERATING
VENTURE or acquires or otherwise succeeds to the operations of the HOLDING
VENTURE or the OPERATING VENTURE.
6. WARRANTIES:
a. WARRANTIES BY GLOBAL: GLOBAL expressly warrants and represents to
XXXXXXX that:
(i) GLOBAL is a corporation duly organized, validly existing and in
good standing under the laws of the State of Georgia and is qualified to do
business under the laws of any jurisdiction in which it has any activities
related to the INTELLECTUAL PROPERTY of GLOBAL and under the laws of which it is
required to obtain qualification under the laws of such states; and has the
power, right and authority to enter into and perform its obligations under this
Agreement;
(ii) GLOBAL has taken all necessary corporate action to authorize
its execution, delivery and performance of this Agreement;
(iii) this Agreement when duly signed by GLOBAL and XXXXXXX will be
a binding obligation of GLOBAL, enforceable in all respects as against GLOBAL;
(iv) GLOBAL is the owner of the INTELLECTUAL PROPERTY of GLOBAL,
including all common law, statutory and other rights therein, free and clear of
any rights, claims or licenses of others (other than trademark rights, if any,
of unrecorded trademark owners; provided, however, that GLOBAL is not aware of
any such rights) and except for the MIDWEST WIRELESS AGREEMENT);
(v) GLOBAL has not entered into any agreements or contracts
authorizing others to use the INTELLECTUAL PROPERTY of GLOBAL except for the
MIDWEST WIRELESS AGREEMENT;
(vi) to the best of GLOBAL's knowledge, no person or entity is
infringing or has threatened to infringe any of the INTELLECTUAL PROPERTY of
GLOBAL;
(vii) GLOBAL has not requested any person or entity to cease or
modify any activity or product or to take out a license for such activity or
product by reason of past, present or prospective infringement of any
INTELLECTUAL PROPERTY of GLOBAL;
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(viii) to the best of GLOBAL's knowledge, the existing patents
included in the Patents are valid and enforceable;
(ix) to the best of GLOBAL's knowledge, the manufacture, use, and
sale of PRODUCTS bearing the TRADEMARKS of GLOBAL in the FIELD in the TERRITORY
by the OPERATING VENTURE as contemplated by the parties will not constitute
infringement of any third party's marks, patent rights or copyrights or
otherwise constitute unfair competition or trade secret infringement; provided
however no representations and warranties are made herein with respect to the
HIGHWAYMASTER PATENTS.
(x) there is no pending or threatened litigation related in any
way to the validity, use or enforceability of any of the INTELLECTUAL PROPERTY
of GLOBAL;
(xi) all of the right, title and interest in and to the
INTELLECTUAL PROPERTY of GLOBAL acquired by XXXXXXX under this Agreement are
free and clear of all liens, encumbrances or other claims of creditors of
GLOBAL; and
(xii) no AFFILIATE of GLOBAL owns or possesses any TECHNOLOGY of
GLOBAL or rights with respect thereto or any tangible or intangible property or
rights which would be TECHNOLOGY if owned or possessed by GLOBAL.
b. WARRANTIES BY XXXXXXX: XXXXXXX represents and warrants to GLOBAL as
follows:
(i) XXXXXXX is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has the power, right
and authority to enter into and perform its obligations under this Agreement;
(ii) XXXXXXX has taken all necessary corporate action to authorize
its execution, delivery and performance of this Agreement; and
(iii) this Agreement when duly signed by GLOBAL and XXXXXXX will be
a binding obligation of XXXXXXX, enforceable in all respects as against XXXXXXX.
7. GENERAL TERMS AND CONDITIONS.
7.1 Entire Agreement. This Agreement together with the HOLDING VENTURE
OPERATING AGREEMENT, OPERATING VENTURE OPERATING AGREEMENT, ASSIGNMENT
AGREEMENTS, MANUFACTURING AGREEMENT, LICENSE, and TECHNOLOGY AGREEMENT
constitutes the entire agreement between the parties and supersedes any prior
understanding or agreement among them respecting the subject matter hereof or
thereof.
7.2 Application of Georgia Law. This Agreement, and the application of
interpretation hereof, shall be governed exclusively by its terms and by the
laws of the State of Georgia.
7.3 Construction. Whenever the singular number is used in this
Agreement and when required by the context, the same shall include the plural
and vice versa, and the masculine gender shall include the feminine and the
neuter genders and vice versa.
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7.4 Headings. The headings in this Agreement are inserted for
convenience only and are in no way intended to describe, interpret, define, or
limit the scope, extent or intent of this Agreement or any provision hereof.
7.5 Waivers. The failure of any party to seek redress for violation of
or to insist upon the strict performance of any covenant or condition of this
Agreement shall not prevent a subsequent act, which would have originally
constituted a violation, from having the effect of an original violation.
7.6 Rights and Remedies Cumulative. The rights and remedies provided
by this Agreement are cumulative and the use of any one right or remedy by any
party shall not preclude or waive the right not to use any or all other
remedies. Such rights and remedies are given in addition to any other rights the
parties may have by law, statute, ordinance or otherwise.
7.7 Severability. If any provision of this Agreement or the
application thereof to any person or circumstance shall be invalid, illegal or
unenforceable to any extent, the remainder of this Agreement and the application
thereof shall not be affected and shall be enforceable to the fullest extent
permitted by law.
7.8 Assignment. GLOBAL and XXXXXXX may each assign their respective
interests under this Agreement to any permitted assignee of its respective
interest under the OPERATING VENTURE OPERATING AGREEMENT.
7.9 Heirs, Successors and Assigns. Each and all of the covenants,
terms, provisions and agreements herein contained shall be binding upon and
inure to the benefit of the parties hereto and, to the extent permitted by this
Agreement, their respective heirs, legal representatives, successors and
assigns.
7.10 Creditors. None of the provisions of this Agreement shall be for
the benefit of or enforceable by any creditors of any party hereto. This
Agreement is entered into among the parties for the exclusive benefit of the
parties and their successors and assignees. Except and only to the extent
provided by applicable statute, no such creditor or third party shall have any
rights under this Agreement.
7.11 Counterparts; Copies. This Agreement may be executed in
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument. One or more copies of this Agreement may
be executed but it shall not be necessary, in making proof of the existence of
this Agreement, to provide more than one original copy.
7.12 Amendments. Any amendment to this Agreement shall be made in
writing and signed by all parties.
7.13 Notices. Whenever this Agreement requires notice to be given to
any party, the notice may be given by mail, in person by courier delivery, or by
overnight delivery. All notices required hereunder shall be addressed and sent
to the party at the address set forth on page one of this Agreement. Any such
written notice shall for all purposes of this Agreement be deemed as being
delivered hereunder (i) if mailed, three (3) days after being deposited with the
United States Postal Service, postage prepaid and designated as certified with
return receipt requested, and properly addressed to the addressee, (ii) if sent
via overnight delivery, one (1) day after being deposited with a nationally
recognized next day delivery service with all delivery fees prepaid or (iii) if
personally delivered, when so delivered. Any party may change the address
located within
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the United States at which such party is to receive notice hereunder by
delivery of notice of such change of address to the other parties in accordance
with this Section 7.13. Any party's failure or refusal to accept any notice or
the inability to deliver notice to any address last reflected on the books and
records of the Company shall constitute delivery of such notice to the party to
whom addressed.
7.14 Affiliates. The covenants, agreements, and licenses of and granted
to each party hereunder shall also be covenants, agreements, and licenses of and
to such party's Affiliates. Each party hereunder shall be responsible for
compliance of its Affiliates with the covenants and agreements under this
Agreement.
7.15 Further Assurances. The parties agree to fully cooperate and
execute any documents to effectuate or perfect the transactions and matters set
forth herein.
7.16 Time of the Essence. Time is of the essence with respect to the
performance of each party's obligations hereunder.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of
the date first written above.
GLOBAL RESEARCH SYSTEMS, INC. XXXXXXX, INC.
By:/s/ M. Xxxxx Xxxxx By:/s/ Xxxxx X. XxXxxxx
----------------------------- ------------------------
M. Xxxxx Xxxxx, President Xxxxx X. XxXxxxx, President
Attest:/s/ Xxxx Xxxxx
-------------------------
Xxxx Xxxxx, Secretary
(CORPORATE SEAL)
-11-
12
EXHIBIT "A"
GLOBAL'S PROJECTIONS
DATE PERIOD EBT CUMULATIVE EBT
12/31/99 $12,878,275 $12,878,275
06/30/00 12,745,420 25,623,695
12/31/00 19,118,130 44,741,825
06/30/01 22,158,730 66,900,555
12/31/01 33,238,095 100,138,650
06/30/02 27,716,230 127,854,880
12/31/02 41,574,345 169,429,225
