ASSIGNMENT ASSUMPTION AND CONFIRMATION
This Assignment Assumption and Confirmation (this "Agreement") is
entered into as of July 27th, 2006 by SH Celera Capital Corporation, a
Maryland corporation ("Assignor") G/O Business Solutions, Inc. (formerly G/O
International, Inc.), a Colorado corporation ("Assignee"), and X-tra Light
Manufacturing, Inc. and X-tra Light Services LLC each Texas Limited Liability
companies (collectively referred to as "X-tra Light").
RECITALS
A. Assignor and X-tra Light have entered into that certain Retainer
Agreement dated June 9, 2006, a copy of which is attached here as Exhibit A
(the "Retainer Agreement"), pursuant to which Assignor undertook to provide
certain Business Development Services, as described in Schedule A to the
Retainer Agreement, for the payments set forth in Schedule B of the Retainer
Agreement and for further compensation and reimbursements as otherwise set
forth in the Retainer Agreement.
B. Assignor has acquired controlling interest in and is the principal
shareholder of Assignee, which has undertaken to engage in providing business
development services such as those set forth in Schedule A to the Retainer
Agreement, and both Assignor and X-tra Light consider it in each of their best
interests that all of the rights and duties of Assignor under the Retainer
Agreement be assigned over to Assignee and that Assignee undertake and assume
the duties of Assignor as set forth in the Retainer Agreement.
C. Assignor is willing to assign all of its rights under the Retainer
Agreement, Assignee is willing to accept such assignment and assume all of
Assignor's duties under the Retainer Agreement, and X-tra Light is willing to
consent to and confirm such assignment and assumption.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises, the
covenants and agreements in this Assignment and additional consideration of $1
U.S. dollar, the parties hereto agree as follows
1. Assignor does hereby sell, transfer, convey, assign and deliver to
Assignee all of Assignor's right, title, benefits, compensation and interest
in and to the Retainer Agreement, the same to be held by Assignee for
Assignee's own use and enjoyment, and for the use and enjoyment of Assignee's
successors, assigns and other legal representatives, as fully and entirely as
the same would have been held and enjoyed by Assignor if this assignment had
not been made; together with all claims for damages by reason of violations of
any terms of the Retainer Agreement, along with the right to sue for and
collect such damages for the use and benefit of Assignee and its successors,
assigns and other legal representatives. This Agreement replaces and
supersedes any prior written or verbal agreements, understandings,
communications or representations concerning the Retainer Agreement.
2. Assignor hereby represents and warrants that: (a) there has been no
previous transfer or assignment of any rights in the Retainer Agreement by
Assignor to any third party, and (b) that it has full power, and has taken all
necessary action (if applicable), to make the present assignment.
3. Assignor warrants unto Assignee and further agrees that Assignor
will, without demanding any further consideration therefor other than such
consideration as agreed upon by the parties from time to time, at the request,
but at the charge of Assignee, do all lawful and just acts including the
execution and acknowledgment of instruments, that may be or become necessary
for maintaining and perfecting Assignee's rights in and to Retainer Agreement,
particularly in cases of interference and litigation.
4. Assignee hereby agrees to assume all of the duties and
responsibilities of Assignor under the Retainer Agreement as set forth therein
and as contemplated by the parties thereto. In connection therewith, Assignee
shall faithfully perform such duties to the same standard as undertaken by
Assignor.
5. Assignee hereby represents and warrants that: (a) it possesses the
skill, knowledge and expertise necessary to fully perform all duties under the
Retainer Agreement and (b) that it has full power, and has taken all necessary
action (if applicable), to enter into the present assignment.
6. X-tra Light hereby consents to the assignment and the assumption set
forth herein and hereby confirms its obligations and duties under the Retainer
Agreement shall run to the benefit of Assignee, as though Assignee were the
original party to the Retainer Agreement. X-tra Light represents and warrants
that it has full power, and has taken all necessary action (if applicable), to
execute and deliver this Agreement.
7. X-tra Light hereby releases Assignor from any further duties under
the Retainer Agreement (including those set forth in Schedule A) other than
the duty of confidentiality, which Assignor will observe.
8. Assignor hereby releases X-tra Light from any further duties to
tender the compensation due pursuant to Schedule B of the Retainer Agreement
and the reimbursement of out-of-pocket expenses set forth in paragraph 7 of
the Retainer Agreement provided that such payments are made to Assignee
pursuant to the terms of the Retainer Agreement and this Agreement.
9. Each of Assignor, Assignee and X-tra Light agree X-tra Light's
undertakings respecting the limitation of Assignor's liability under
paragraphs 8 and 11 or the Retainer Agreement and X-tra Light's undertaking
regarding indemnification under paragraph 10 shall continue as to Assignor and
shall be binding upon X-tra Light, as respect to Assignee. Further, X-tra
Light acknowledges that paragraphs 12, 13, and 14 of the Retainer Agreement
shall apply to Assignee.
10. Each of Assignor, Assignee and X-tra Light hereby acknowledge that
the duty to continue confidentiality set forth in paragraph 9 of the Retainer
Agreement, as memorialized in the Non-Disclosure and Non-Circumvention
Agreement, attached as Exhibit 2 to the Retainer Agreement (the "ND-NC
Agreement"), shall apply to each of them and to Assignee, as though Assignee
were an original party thereto, it being expressly acknowledged that Assignee
is a designated third-party beneficiary as provided in paragraph 24 of the ND-
NC Agreement.
11. X-tra Light hereby consents to the assignment and transfer of all
rights under Schedule B-1 to the Retainer Agreement and Exhibit B-1(a) the
Registration Undertaking Agreement, attached thereto.
12. This Agreement shall be controlled, construed and enforced in
accordance with the laws of the State of Texas, without regard to the
conflicts of law provisions thereof.
13. This Agreement shall not be assignable by any party without prior
written consent of the others.
14. All paragraph headings herein are inserted for convenience only.
This Agreement may be executed in several counterparts, each of which shall be
deemed an original, which together shall constitute one and the same
instrument.
15. This Agreement shall be binding upon and shall inure to the benefit
of the heirs, executors, administrators and assigns of the Assignor, X-tra
Light and the Assignee.
16. All notices, requests, instructions, or other documents to be given
hereunder shall be in writing and sent by registered mail:
If to any Assignor: The address set forth in such Assignor's
Counterpart Signature Page, delivered in connection with this
Agreement.
If to the Assignee: The address set forth in such Assignee's
Counterpart Signature Page, delivered in connection with this
Agreement.
If to the X-tra Light: The address set forth in such X-tra Light's
Counterpart Signature Page, delivered in connection with this
Agreement.
17. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original, but all such counterparts shall together
constitute one agreement.
SIGNATURES ON THE FOLLOWING PAGE
IN WITNESS WHEREOF, each of the parties hereto has executed this Assignment on
the date first above written.
ASSIGNOR
SH Celera Capital Corporation, a Maryland
corporation
X/s/David Strawn
David Strawn,
Its Chief Executive Officer
14360 Sylvanfield Dr.
Houston, Texas 77014
ASSIGNEE
G/O Business Solutions, Inc. (formerly
G/O International, Inc.), a Colorado corporation
X/s/Brian Rodriguez
Brian Rodriguez
Its President
18205 Burkhardt
Tomball, Texas 77377
X-TRA LIGHT
X-tra Light Manufacturing Inc., a
Texas Limited Liability Company
X/s/Jerry Caroom
Jerry Caroom
Its Managing Member
8812 Frey Road
Houston, Texas 77034
X-tra Light Services LLC, a
Texas Limited Liability Company
X/s/Jerry Caroom
Jerry Caroom
Its Managing Member
8812 Frey Road
Houston, Texas 77034
Exhibit A
Copy of Retainer Agreement
EXHIBIT B-1(a)
UNDERTAKING AGREEMENT
UNDERTAKING AGREEMENT
THIS UNDERTAKING AGREEMENT (this "Agreement") is entered into as of June 9,
2006, by and among X-tra Light Manufacturing, Inc., a Texas Limited Liability
Company ("XM"), X-tra-Light Services, LLC, a Texas Limited Liability Company
("XS") ( (XM and XS shall herein after be referred to, collectively as the
"Company"), and SH Celera Capital Corporation, a Maryland corporation or its
assigns (hereinafter referred to as "Consultant").
RECITALS:
WHEREAS, pursuant to the Retainer Agreement dated June 9, 2006 (the "Retainer
Agreement") between and among the Company, its Principal Members and SH Celera
Capital Corporation ("SHCCC"), the Company and the Principal Members have,
undertaken and agreed to: (i) form a new entity that will hold all of the
interests of XM and XS owned by Jerry Caroom ("Newco") and (ii) issue to the
shareholders of SHCCC or its assign, as designated by SHCCC, shares of Newco's
common stock (the "Shares"), as partial consideration for the Services
rendered under the Retainer Agreement;
WHEREAS, as partial consideration for SHCCC's rendering of the Services under
the Retainer Agreement, the Company has agreed and undertaken to complete
and/or cause Newco to complete those activities necessary to register the
Shares for distribution to the shareholders of SHCCC or its assign, as set
forth in this Agreement;
TERMS:
NOW, THEREFORE, in consideration of the mutual promises, representations,
warranties, covenants and conditions set forth in this Agreement and in the
Retainer Agreement and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Certain Definitions. As used in this Agreement (including the Recitals
above), the following terms shall have the following meanings (such meanings
to be equally applicable to both singular and plural forms of the terms
defined):
"Common Stock" shall mean Newco's common stock.
"Controlling Interest" shall mean the possession of in excess of 50% of the
voting control of another entity.
"Covered Security" shall have the meaning set forth in Section 18 of the
Securities Act of 1933, as amended and the rules and regulations promulgated
thereunder.
"Due Date" shall mean the date that is two hundred and fifty five (255) days
after the date of the Retainer Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
together with the rules and regulations promulgated thereunder.
"Exchange Act Registration" shall mean and refer to a registration by the
Company of the Company's Common Stock pursuant to Section 13 or 15(d) of the
Exchange Act.
"Exchange Act Registration Filing Deadline" shall mean the date that is thirty
(30) days after the date of the Newco Formation Deadline, subject to
extension, as provided herein.
"Holder" shall mean SHCCC or its assign, which may be any entity in which
SHCCC possesses a Controlling Interest, directly, or indirectly, through one
or more entities.
"Listing Application Filing" shall mean and refer to the filing by the Company
of an application for listing with an exchange or market system that, upon
approval for listing, will qualify the Company's shares of Common Stock,
including the Registerable Securities, as a Covered Security.
"Listing Application Filing Deadline" shall mean a date that is 30 days after
the completion of the Exchange Act Registration, subject to extension, as
provided herein.
"Newco" shall mean a newly formed "C" corporation that shall hold all of the
interests in XM and XS owned by Jerry Caroom, who shall, upon formation of
Newco, contribute his interests in XM and MS on or before the "Newco Formation
Deadline."
Newco Formation Deadline shall mean a date that is 30 days after the execution
and delivery of the Retainer Agreement.
"Register," "Registered," and "Registration" shall mean and refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act, or the Exchange Act,
as the case may be, or any successor rule, and the declaration or ordering of
or automatic effectiveness of such registration statement or document.
"Registerable Securities" shall mean those shares of the Common Stock
together with any capital stock issued in replacement of, in exchange for or
otherwise in respect of such Common Stock, that are issuable or issued to the
shareholders of SHCCC or its assigns pursuant to the Retainer Agreement.
"SEC" shall mean the United States Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended, together
with the rules and regulations promulgated thereunder.
"Securities Act Registration" shall mean and refer to a Registration by Newco
of the Registerable Securities pursuant to the Securities Act for distribution
to the shareholders of Holder or its assign.
"Securities Act Registration Filing Deadline shall mean a date that is 30 days
after the completion of the Exchange Act Registration, subject to extension as
provided herein.
"SHCCC" shall have the meaning set forth in the preamble to this Agreement.
2. Newco Formation. Within 30 days after the date of the Retainer Agreement
(the Newco Formation Deadline") the Company shall cause Newco to be formed
under the laws of the State of Texas, and immediately, thereafter, Jerry
Caroom shall contributed to Newco any an all right title and interest he
possesses in and to the Company.
3. Required Registrations.
3.1 Exchange Act Registration. Within 30 days after the date Newco Formation
Deadline, (the "Exchange Act Registration Filing Deadline"), Newco shall
complete and file an Exchange Act Registration respecting the Common Stock.
Provided, however, that the Exchange Act Registration Filing Deadline may be
extended by Newco, if Newco shall furnish to Holder a certificate signed by
the Chief Executive Officer of Newco stating that, in the good faith judgment
of the Board of Director of Newco, it would be significantly disadvantageous
to Newco and its shareholders for such an Exchange Act Registration to be
filed, in which case the Exchange Act Registration Filing Deadline shall be
extended for a period of not more than 30 days after the Exchange Act
Registration Filing Deadline.
3.2. Securities Act Registration and Listing Application. Within 30 days after
completion of the Exchange Act Registration (the Securities Act Registration
Filing Deadline"), Newco shall, file a registration statement ("Registration
Statement") on Form S-4 (or other suitable form, at Newco's discretion, but
subject to the reasonable approval of SHCCC), covering the distribution and
resale of the Registerable Securities to the shareholders of Holder, or its
assign. Simultaneous therewith (the "Listing Application Filing Deadline")
Newco shall file an application for listing of the Common Stock for trading on
an exchange or market system that, when authorized for listing, would qualify
its Common Stock as a "Covered Security" as provided in Section 18 of the
Securities Act (the "Listing Application Filing") Provided, however, that the
Securities Act Registration Filing Deadline and/or the Listing Application
Filing Deadline may be extended by Newco, if Newco shall furnish to Holder a
certificated signed by the Chief Executive Officer of Newco stating that in
the good faith judgment of the Board of Director of Newco it would be
significantly disadvantageous to Newco and its shareholders for such a
Securities Act Registration Statement or Listing Application Filing to be
filed, in which case the Securities Act Registration Filing Deadline and the
Listing Application Filing Deadline shall be extended for a period of not more
than 30 days after the Securities Act Registration Filing Deadline and/or the
Listing Application Filing Deadline; provided, that the combined extensions of
the Securities Act Registration Filing Deadline and the Listing Application
Filing Deadline may not exceed 45 days.
3.3. Securities Act Registration Effective Date. Newco shall use its best
efforts to have the Securities Act Registration Statement declared effective
by the SEC (the date of such effectiveness is referred to herein as the
"Effective Date") by the Due Date and Newco shall keep effective any
Securities Act Registration or qualification contemplated by paragraph 3.2 and
shall from time to time amend or supplement each applicable registration
statement, preliminary prospectus, final prospectus, application, document and
communication for such period of time as shall be required to permit the
Holder to complete the distribution of the Registerable Securities covered
thereby to its shareholders. Newco shall in no event be required to keep any
such Securities Act Registration or qualification in effect for a period in
excess of six months from the date on which the Holder and such holders are
first free to distribute such Registered Securities; provided, however, that
if Newco is required to keep any such registration or qualification in effect
beyond such period with respect to securities other than the Registered
Securities, Newco shall keep such registration or qualification in effect as
it relates to the Registerable Securities for so long as such registration or
qualification remains or is required to remain in effect in respect of such
other securities.
3.4 Provision of Offering Materials. In the event of a Securities Act
Registration pursuant to the provisions of paragraph 3.2, Newco shall furnish
to the Holder and to each such holder such reasonable number of copies of the
registration statement and of each amendment and supplement thereto (in each
case, including all exhibits), such reasonable number of copies of each
prospectus contained in such registration statement and each supplement or
amendment thereto (including each preliminary prospectus), all of which shall
conform to the requirements of the Securities Act and the rules and
regulations there under, and such other documents as the Holder or such
holders may reasonably request in order to facilitate the disposition of the
Registered Securities included in such Registration.
3.5 Provision of Legal Opinion. In the event of a Securities Act Registration
pursuant to the provisions of paragraph 3.2, Newco shall furnish the Holder
and each holder of any shares so registered with an opinion of its counsel to
the effect that (i) the registration statement has become effective under the
Act and no order suspending the effectiveness of the registration statement,
preventing or suspending the use of the registration statement, any
preliminary prospectus, any final prospectus, or any amendment or supplement
thereto has been issued, nor to such counsel's actual knowledge has the
Securities and Exchange Commission or any securities or blue sky authority of
any jurisdiction instituted or threatened to institute any proceedings with
respect to such an order, and (ii) the registration statement and each
prospectus forming a part thereof (including each preliminary prospectus), and
any amendment or supplement thereto, complies as to form with the Act and the
rules and regulations thereunder. If applicable, such counsel shall also
provide a Blue Sky Memorandum setting forth the jurisdictions in which the
Registerable Securities have been registered or qualified for distribution to
the shareholders of Holder or its assigns, pursuant to the provisions of
paragraph 3.
4. Obligations of the Company and of Newco.
(a) Newco Formation. Whenever required under this Agreement to
complete the Formation of Newco, the Company and the Principal
Members shall, as expeditiously as possible organize and form
Newco and effect the transfer of any and all interest in the
Company held by Jerry Caroom to Newco.
(b) Exchange Act Registration. Whenever required under this Agreement
to effect the registration of the same class of Newco's shares as
the Registerable Shares, pursuant the Exchange Act, Newco shall,
as expeditiously as possible:
a. Prepare and file with the Securities and Exchange
Commission ("SEC") a Form 10 (with accompanying
attachments) with respect to the same class of shares as
the Registerable Securities and use its best efforts to
cause such Registration Statement to become effective;
b. Prepare and file with the SEC such amendments and
supplements to such Form 10 as may be necessary to
comply with the provisions of the Exchange Act.
c. Promptly respond to any comment letters or inquiries
received from the SEC in connection with the Form 10 or
any documents filed in connection therewith in order to
assure the effectiveness of the Form 10 as quickly as
possible.
(c) Obtaining Covered Securities Status. Whenever required under this
Agreement to obtain Covered Securities status for the same class of
securities as the Registerable Securities, Newco shall, as
expeditiously as possible, take all actions as necessary to qualify
Newco for listing (including all actions necessary to comply with
corporate governance rules and regulations) and prepare and file an
application with such exchange or market system the listing of the
same class of shares as the Registerable Securities and use its best
efforts to cause such listing to be approved and, upon distribution
of the Registerable Securities, to become effective.
(d) Securities Act Registration. Whenever required under this Agreement
to effect the registration of any Registerable Securities under the
Securities Act, Newco shall, as expeditiously as possible:
a. Prepare and file with the Securities and Exchange Commission
("SEC") a Registration Statement with respect to such
Registerable Securities and use its best efforts to cause
such Registration Statement to become effective and to
remain effective until all Registerable Securities are
distributed pursuant to such Registration Statement,
notwithstanding any Termination or Automatic Termination;
b. Prepare and file with the SEC such amendments and
supplements to such Registration Statement and the
prospectus used in connection with such Registration
Statement ("Amended Registration Statement") or prepare and
file any additional registration statement ("Additional
Registration Statement," together with the Amended
Registration Statement, "Supplemental Registration
Statements") as may be necessary to comply with the
provisions of the Securities Act with respect to the
disposition of all securities covered by such
Supplemental Registration Statements or such prior
registration statement and to cover the distribution of all
Registerable Securities.
c. Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and
such other documents as they may reasonably request in order
to facilitate the disposition of Registerable Securities
owned by them.
d. Use its best efforts to register and qualify the securities
covered by such Registration Statement under such other
securities or Blue Sky laws of the jurisdictions in which
the Holders are located, of such other jurisdictions as
shall be reasonably requested by the Holders of the
Registerable Securities covered by such Registration
Statement and of all other jurisdictions where legally
required.
e. As promptly as practicable after becoming aware of such
event, notify each Holder of Registerable Securities of the
happening of any event of which Newco has knowledge, as a
result of which the prospectus included in the Registration
Statement, as then in effect, includes an untrue statement
of a material fact or omits to state a material fact
required to be stated therein or necessary to make the
statements therein, in light of the circumstances under
which they were made, not misleading, use its best efforts
promptly to prepare a supplement or amendment to the
Registration Statement to correct such untrue statement or
omission, and deliver a number of copies of such supplement
or amendment to each Holder as such Holder may reasonably
request.
f. Provide Holders with notice of the date that a Registration
Statement or any Amended Registration Statement registering
the resale of the Registerable Securities is declared
effective by the SEC, and the date or dates when the
Registration Statement is no longer effective;
g. Provide each Holder and their representatives the
opportunity to review the Registration Statement and all
amendments or supplements thereto prior to their filing with
the SEC by giving each Holder at least ten (10) business
days advance written prior to such filing.
h. Provide each Holder with prompt notice of the issuance by t
the SEC or any state securities commission or agency of any
stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceeding for such
purpose. Newco shall use its best efforts to prevent the
issuance of any stop order and, if any is issued, to obtain
the removal thereof at the earliest possible date.
5. Furnish Information. At Newco's request, each Holder and its assign shall
furnish to Newco such information regarding Holder or its assign, the
Registerable Securities held by him, her or it, and the intended method of
disposition of such securities to the extent required to effect the
registration of its Registerable Securities under the Exchange Act and the
Securities Act and under any Listing Application Filing. Newco shall include
all information provided by such Holder pursuant hereto in the Registration
under the Exchange Act and the Securities Act Registrations and the Listing
Application Filing, substantially in the form supplied, except to the extent
such information is not permitted by law.
6. Expenses. All expenses, other than commissions and fees and expenses of
counsel to the selling Holders, incurred in connection with registrations,
filings or qualifications pursuant hereto, including (without limitation) all
registration, filing, listing and qualification fees, printers' and accounting
fees, fees and disbursements of counsel for Newco, shall be borne by Newco.
7. Indemnification. In the event any Registerable Securities are included in a
Registration Statement under this Agreement:
(a) To the extent permitted by law, Newco will indemnify and
hold harmless each Holder, the officers, directors, partners, legal
counsel, and accountants of each Holder, any underwriter (as defined
in the Securities Act, or as deemed by the Securities Exchange
Commission, or as indicated in a registration statement) for such
Holder and each person, if any, who controls such Holder or
underwriter within the meaning of Section 15 of the Securities Act
or the Exchange Act, against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject
under the Securities Act, the Exchange Act or other federal or state
law, insofar as such losses, claims, damages, or liabilities (or
actions in respect thereof) arise out of or are based upon any of
the following statements or omissions: (i) any untrue statement or
alleged untrue statement of a material fact contained in such
registration statement, including any preliminary prospectus or
final prospectus contained therein or any amendments or supplements
thereto, or (ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make
the statements therein not misleading, and Newco will reimburse each
such Holder, officer or director, underwriter or controlling person
for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim,
damage, liability, or action; provided, however, that the indemnity
agreement contained in this subsection 6(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage,
liability, or action if such settlement is effected without the
consent of Newco (which consent shall not be unreasonably withheld),
nor shall Newco be liable in any such case for any such loss, claim,
damage, liability, or action to the extent that it arises out of or
is based upon a violation which occurs in reliance upon and in
conformity with written information furnished expressly for use in
connection with such registration by any such Holder, officer,
director, underwriter or controlling person; provided however, that
the above shall not relieve Newco from any other liabilities which
it might otherwise have.
(b) Each Holder of any securities included in such
registration being effected shall indemnify and hold harmless Newco,
its directors and officers, each underwriter and each other person,
if any, who controls (within the meaning of the Securities Act)
Newco or such other indemnified party, against any liability, joint
or several, to which any such indemnified party may become subject
under the Securities Act or any other statute or at common law,
insofar as such liability (or actions in respect thereof) arises out
of or is based upon any omission or alleged omission by such Holder
to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, to the
extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in
such registration statement, preliminary or final prospectus,
amendment or supplement thereto in reliance upon and in conformity
with information furnished in writing to Newco by such Holder
specifically for use therein. Such Holder shall reimburse any
indemnified party for any legal fees incurred in investigating or
defending any such liability; provided, however, that such Holder's
obligations hereunder shall be limited to an amount equal to the
proceeds to such Holder of the securities sold in any such
registration; and provided further, that no Holder shall be required
to indemnify any party against any liability arising from any untrue
or misleading statement or omission contained in any preliminary
prospectus if such deficiency is corrected in the final prospectus
or for any liability which arises out of the failure of such party
to deliver a prospectus as required by the Securities Act.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in
respect thereof is to be made against any indemnifying party under
this Section 7, deliver to the indemnifying party a written notice
of the commencement thereof and the indemnifying party shall have
the right to participate in, and, to the extent the indemnifying
party so desires, jointly with any other indemnifying party
similarly noticed, to assume, the defense thereof with counsel
mutually satisfactory to the parties; provided, however, that an
indemnified party shall have the right to retain its own counsel,
with the reasonably incurred fees and expenses of one such counsel
to be paid by the indemnifying party, if representation of such
indemnified party by the counsel retained by the indemnifying party
would be inappropriate due to actual or potential conflicting
interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to
deliver written notice to the indemnifying party within a reasonable
time of the commencement of any such action, if materially
prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under
this Section 7, but the omission so to deliver written notice to the
indemnifying party will not relieve it of any liability that it may
have to any indemnified party otherwise than under this Section 7.
(d) In the event that the indemnity provided in paragraphs (a)
and/or (b) of this Section 6 is unavailable to or insufficient to
hold harmless an indemnified party for any reason, Newco and each
Holder agree to contribute to the aggregate claims, losses, damages
and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same)
(collectively "Losses") to which Newco and one or more of the
Holders may be subject in such proportion as is appropriate to
reflect the relative fault of Newco and the Holders in connection
with the statements or omissions which resulted in such Losses.
Relative fault shall be determined by reference to whether any
alleged untrue statement or omission relates to information provided
by Newco or by the Holders. The Company and the Holders agree that
it would not be just and equitable if contribution were determined
by pro rata allocation or any other method of allocation that does
not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person
guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 6, each person who
controls a Holder of Registerable Securities within the meaning of
either the Securities Act or the Exchange Act and each director,
officer, partner, employee and agent of a Holder shall have the same
rights to contribution as such holder, and each person who controls
Newco within the meaning of either the Securities Act or the
Exchange Act and each director and officer of Newco shall have the
same rights to contribution as Newco, subject in each case to the
applicable terms and conditions of this paragraph (d).
(e) The obligations of Newco and Holders under this Section 7
shall survive the resale, if any, of the Common Stock, the
completion of any offering of Registerable Securities in a
Registration Statement under this Agreement, and otherwise.
8. Reports Under Exchange Act. The Company agrees, following the Exchange Act
Registration to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144; and
(b) use its best efforts to file with the SEC, in a timely
manner, all reports and other documents required of Newco under the
Securities Act and the Exchange Act.
9. Remedy Upon Failure to Meet Deadlines. If the Company fails to: (i) form
Newco by the Newco Formation Deadline, or if Newco fails to: (ii) file the
Exchange Act Registration by the Exchange Act Registration Filing Deadline; or
(iii) to file the Securities Act Registration by the Securities Act
Registration Deadline; or (iv) file the Listing Application by the Listing
Application Filing Deadline, subject to any extensions as provided herein, or
(iv) by the Due Date, deliver the Registerable Shares to the Holder or its
assign, for further distribution of such Shares to the shareholders of Holder
or its assign, in fully registered form, the Company and/or Newco shall pay
Holder a cash fee of $175,000, unless such failure results primarily from
delays of the SEC or other regulatory body in connection with the Securities
Act Registration, in which case, the Company and Newco, as of the Due Date,
unless the Due Date is mutually extended by the Company and the Consultant,
shall have no further obligation to issue the Shares or to pay the Share
Compensation.
10. Amendment of Undertaking Agreement. Any provision of this Agreement may be
amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company and Newco and the written consent of each
Holder affected thereby. Any amendment or waiver effected in accordance with
this paragraph shall be binding upon each Holder, each future Holder, and the
Company and Newco.
11. Notices. All notices required or permitted under this Agreement shall be
made in writing signed by the party making the same, shall specify the section
under this Agreement pursuant to which it is given, and shall be addressed if
to:
The Company:
X-tra Light Manufacturing, Inc.
X-tra Light Services, LLC
8812 Frey Road
Houston, Texas 77034
The Holder
SH Celera Capital Corporation
14360 Sylvanfield Drive
Houston, Texas 77014
Any notice, except as otherwise provided in this Agreement, shall be made by
fax and shall be deemed given at the time of transmission of the fax.
12. Termination. This Agreement shall terminate on the date all Registerable
Securities are delivered by the Company as set forth in this Agreement or
otherwise as provided in paragraph 9, herein above; but without prejudice to
(i) the parties' rights and obligations arising from breaches of this
Agreement occurring prior to such termination, and (ii) other indemnification
obligations under this Agreement.
13. Assignment. No assignment, transfer or delegation, whether by operation of
law or otherwise, of any rights or obligations under this Agreement by the
Company or any Holder, respectively, shall be made without the prior written
consent of the majority in interest of the Holders or the Company,
respectively; provided that the rights of a Holder may be transferred to a
subsequent holder of the Holder's Registerable Securities (provided such
transferee shall provide to the Company, together with or prior to such
transferee's request to have such Registerable Securities included in a
Registration, a writing executed by such transferee agreeing to be bound as a
Holder by the terms of this Agreement), and the Company hereby agrees to file
an amended registration statement including such transferee or a selling
security holder thereunder; and provided further that the Company may transfer
its rights and obligations under this Agreement to a purchaser of all or a
substantial portion of its business if the obligations of the Company under
this Agreement are assumed in connection with such transfer, either by merger
or other operation of law (which may include without limitation a transaction
whereby the Registerable Securities are converted into securities of the
successor in interest) or by specific assumption executed by the transferee.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas applicable to agreements made
in and wholly to be performed in that jurisdiction, except for matters arising
under the Securities Act or the Exchange Act, which matters shall be construed
and interpreted in accordance with such laws. Any dispute arising out of or
relating to this Agreement or the breach, termination or validity hereof shall
be finally settled by the federal or state courts located in Harris County,
Texas.
15. Execution in Counterparts Permitted. This Agreement may be executed in any
number of counterparts, each of which shall be enforceable against the parties
actually executing such counterparts, and all of which together shall
constitute one (1) instrument.
16. Specific Performance. The Holder shall be entitled to the remedy of
specific performance in the event of the Company's breach of this Agreement,
the parties agreeing that a remedy at law would be inadequate; provided,
however, that such remedy shall not be available if the Company's failure
results from delays or impediments caused by any regulatory authority.
17. Indemnity. Each party shall indemnify each other party against any and all
claims, damages (including reasonable attorney's fees), and expenses arising
out of the first party's breach of any of the terms of this Agreement.
18. Entire Agreement; Written Amendments Required. This Agreement, the
Retainer Agreement, and the other documents delivered pursuant hereto and
thereto constitute the full and entire understanding and agreement between the
parties with regard to the subjects hereof and thereof, and no party shall be
liable or bound to any other party in any manner by any warranties,
representations or covenants except as specifically set forth herein or
therein. Except as expressly provided herein, neither this Agreement nor any
term hereof may be amended, waived, discharged or terminated other than by a
written instrument signed by the party against whom enforcement of any such
amendment, waiver, discharge or termination is sought.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of June 9,
2006.
X-tra Light Manufacturing, Inc.
By/s/Jerry Caroom
Jerry Caroom
Its Managing Member
X-tra Light Services, LLC
Its Managing Member
By/s/Jerry Caroom
Jerry Caroom
Its Managing Member
SH Celera Capital Corporation,
A Maryland corporation
By /s/George Jarkesy
George Jarkesy,
Its President