MUTUAL AGREEMENT TO RESCIND
THIS MUTUAL AGREEMENT TO RESCIND ("Rescission") is made this day of
November 8, 1996, by and between TAC, Inc. ("TAC"), a Utah corporation with its
principal place of business at 268 West 400 South, Salt Lake City, UT 84101 and
BRIA Communications Corporation ("BRIA"), a New Jersey corporation with its
principal place of business at 147-17 NewPort Avenue, Nephosit, New York 11694.
PREMISES
A. On September 20, 1996, TAC and BRIA (the "parties") executed a certain
Stock Exchange Agreement ("Agreement) whereby the parties agreed to exchange
their respective shares of common stock pursuant to the terms of such Agreement;
B. TAC and BRIA now believe that the terms and objectives of such
Agreement are no longer in the best interest of the parties;
C. TAC and BRIA desire to mutually rescind such Agreement dated September
20, 1996.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises contained
herein, and for other good and valuable consideration, the sufficiency of which
is hereby expressly acknowledged, TAC and BRIA agree as follows:
1. PURPOSE
On the basis of the representations and warranties contained herein and
subject to the terms and conditions set forth herein, TAC and BRIA mutually
agree to rescind the Agreement dated September 20, 1996.
2. EFFECTIVE DATE OF RESCISSION
The Agreement dated September 20, 1996 is hereby void ab initio as of
the 8th of November, 1996.
3. MUTUAL REPRESENTATIONS AND WARRANTIES OF TAC AND BRIA
The parties hereby represent, warrant and covenant that each of the
following are true and complete as of the date of this Rescission:
A. The execution and performance of this Rescission have been duly
authorized by all requisite corporate action. This Rescission
constitutes a valid and binding obligation of the parties. This
Rescission will not violate or result in a breach of, or constitute a
default in any agreement, instrument, judgment, order or decree to
which either party is a party or to which either party is subject.
B. The Agreement dated September 20, 1996, to exchange their respective
stock, was freely entered into, and represents a valid and binding
agreement between the parties. A copy of such Agreement is attached as
Exhibit "A" and incorporated by reference.
C. Each party has fully performed under the terms of the Agreement
dated September 20, 1996 by issuing their respective shares to one
another, as evidenced by certain stock certificates issued as outlined
below, copies of which are attached as Exhibit "B" and incorporated by
reference:
(i) One Million Five Hundred Thousand (1,500,000) shares of BRIA
stock, issued to TAC on October 1, 1996 in the following
denomination:
a. certificate number 1263 in the amount of 1,500,000 shares
(ii) Three Hundred Thousand (300,000) shares of TAC stock, issued to
BRIA on September 30, 1996 in the following denomination:
a. certificate number 1065 in the amount of 300,000 shares
D. Each party shall execute such other documents and take such other
and further action to effect the Rescission of the Agreement dated
September 20, 1996, including canceling the respective stock issued,
and effecting corporate action in the form of appropriate resolutions
to cancel such stock and rescind such Agreement.
E. Neither party will suffer damages, either direct or indirect, as a
result of this Rescission.
F. Each party, in making its decision to execute this Rescission
relied solely on the advice of its principals, or its financial
advisors and not on advice given by the agents, principals,
consultants or employees of the other party.
4. MISCELLANEOUS
A. Entire Agreement. This Rescission sets forth the entire agreement
between the parties as of the date of this Rescission. No prior
written or oral statement or agreement contrary to this Rescission
shall be recognized or enforced.
B. Effect of Partial Invalidity. In the event that any one or more of
the provisions contained in this Rescission shall for any reason be
held to be invalid, illegal, or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other
provisions of this Rescission.
C. Controlling Law. The validity, interpretation, and performance of
this Rescission shall be governed by the laws of the State of Utah,
without regard to its law on the conflict of laws. Any dispute arising
out of this Rescission shall be brought in a court of competent
jurisdiction in Salt Lake County, State of Utah. The parties exclude
any and all statutes, laws and treaties which would allow or require
any dispute to be decided in another forum or by other rules of
decision than provided in this Rescission.
D. Arbitration. Any dispute arising under this Rescission shall be
resolved through a mediation-arbitration approach. The parties agree
to mutually select a neutral third party to help them mediate any
dispute. If the mediation is unsuccessful, the parties agree that the
dispute shall be decided by binding arbitration in accordance with the
rules of the American Arbitration Association then controlling. The
site of any such mediation or arbitration shall be in Salt Lake
County, State of Utah.
E. Attorney's Fees. If any action at law or in equity, including an
action for declaratory relief, is brought to enforce or interpret the
provisions of this Rescission, the prevailing party shall be entitled
to recover actual attorney's fees, court costs, and other costs
incurred in proceeding with the action from the other party. The
attorney's fees, court costs or other costs, may be ordered by the
court in its decision of any action described in this paragraph or may
be enforced in a separate action brought for determining attorney's
fees, court costs, or other costs. Should either party be represented
by in-house counsel, such party may recover attorney's fees incurred
by that in-house counsel in an amount equal to that attorney's normal
fees for similar matters, or, should that attorney not normally charge
a fee, by the prevailing rate charged by attorneys with similar
background in that legal community.
F. Time is of the Essence. Time is of the essence of this Rescission
and of each and every provision.
G. Mutual Cooperation. The parties agree to cooperate with each other
to achieve the purpose of this Rescission, and shall execute such
other and further documents and take such other and further actions as
may be necessary or convenient to effect the purpose of this
Rescission.
H. Indemnification. TAC and BRIA agree to indemnify, hold harmless and
defend the other from and against all demands, claims, actions,
losses, damages, liabilities, costs and expenses, including without
limitation, interest, penalties, court costs, and attorneys' fees and
expenses asserted against or imposed or incurred by either party by
reason of or resulting from a breach of any representation, warranty,
covenant, condition or agreement of the other party to this
Rescission. Neither party shall be responsible to the other party for
any consequential or punitive damages.
I. No Third Party Beneficiary. Nothing in this Rescission, expressed
or implied, is intended to confer upon any person, other than the
parties hereto and their successors, any rights or remedies under or
by reason of this Rescission.
J. Facsimile Counterparts. If a party signs this Rescission and
transmits an electronic facsimile of the signature page to the other
party, the party who receives the transmission may rely upon the
electronic facsimile as a signed original of this Rescission.
IN WITNESS WHEREOF, the parties have executed this Rescission on the of
November 8, 1996.
BRIA Communications Corporation TAC, Inc.
By: /s/ Richard Lifschutz By:/s/ Richard Surber
Richard Lifschutz, Chief Executive Officer Richard Suber, President