EX-10.1 2 v098193_ex10-1.htm
AGREEMENT

This AGREEMENT, dated as of December 28, 2007 (the “Agreement”), by and among TXP Corporation, a Nevada corporation (the “Company”) and the investors named on the signature pages annexed hereto (collectively, the “Investor”). This agreement will expire on January 16, 2009. This agreement also extends the terms of previous JVE-TXP Collateral Agreements dated July 28, 2006 and October 12, 2006 to expire concurrently with this agreement on January 16, 2009. 
 
BACKGROUND
 
WHEREAS, the Investor desires to pledge an aggregate of $2,000,000 in free-trading shares of common stock of Fossil Incorporated (NASDAQ: FOSL), or such other shares of free-trading common stock having a value of $2,000,000 in the aggregate as may be agreed upon after the date hereof between the parties hereto (the “Collateral”), on behalf of the Company in favor of First Bank of Canyon Creek, or such other lending or financing institution as may be agreed upon after the date hereof between the parties hereto (a “Lender”), as Collateral for a loan to the Company from a Lender in an amount up to $2,000,000 (the “Loan”), which will be further guaranteed personally and through the pledge of Common Stock (as defined below) beneficially owned by Michael C. Shores, the Company’s Chief Executive Officer.

WHEREAS, the Company wishes to issue to the Investor warrants (the “Warrants”), in the form annexed hereto as Exhibit “A”, to purchase 1,280,000 shares of the Company’s common stock, par value $.001 per share (the “Common Stock), exercisable into shares of the Company’s Common Stock at a price equal to $0.40, subject to adjustment as set forth in the Warrants, as consideration and in exchange for the Investor agreeing to: (i) pledge the Collateral on behalf of the Company for the Loan, and (ii) execute such additional documentation as may be required to effectuate the pledge of the Collateral to a Lender (collectively, the “Transaction Documents”).

WHEREAS, the issuance of the Warrants will be made in reliance upon the provisions of Section 4(2) ("Section 4(2)") and/or Section 4(6) of the United States Securities Act of 1933, as amended, and/or Regulation D ("Regulation D") and the other rules and regulations promulgated thereunder (the "Securities Act"), and/or upon such other exemption from the registration requirements of the Securities Act as may be available with respect to any or all of the investments in securities to be made hereunder.

All capitalized terms not otherwise defined herein shall have the meanings given to them in the Transaction Documents.
 
NOW THEREFORE in consideration of the premises and the mutual covenants, agreements, representations and warranties contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
 
 
ARTICLE 1.
THE AGREEMENTS

1.1 Agreements. Subject to the terms and conditions set forth in this Agreement, the New Warrants, and Transaction Documents, the Company and the Investor hereby agree to execute this Agreement containing the following provisions which shall be effective as of the date hereof:

1.2 Consideration. In consideration of the Investors agreement to pledge the Collateral to a Lender, the Company agrees to:

(a) issue to the Investor Warrants to purchase an aggregate of 1,280,000 shares of Common Stock at an exercise price equal to $0.40, subject to adjustment as set forth in the Warrants; and

(b) pay to the Investor commitment fee equal of 100,000 shares of TXP stock within 90 days of “FOSL” and/or other shares being deposited into First Bank of Canyon Creek and/or any other agreed upon Federally Regulated Banking Institution account (such stock deposit date shall be the “Closing Date”)
 
1.3 Registration Rights. (a) Piggy-Back Registrations. If, at any time (x) prior to the expiration of the Registration Period (as hereinafter defined) and (y) after the filing of the initial registration statement by the Company pursuant to the March 2007 Registration Rights Agreement between the Company and YA Global Investments, L.P. that there is not an effective Registration Statement covering all of the Warrant Shares, the Company proposes to file with the SEC a Registration Statement for its own account or the account of others under the 1933 Act of any of its securities (other than a Registration Statement on Form S-4 or Form S-8 (or their equivalents at such time) relating to securities to be issued solely in connection with any acquisition of any entity or business or equity securities issuable in connection with stock option or other employee benefit plans), the Company shall promptly send to the Investor written notice of the Company's intention to file a Registration Statement and of the Investor's rights under this Section 1.3(a) and, if within five (5) days after receipt of such notice, the Investor shall so request in writing, the Company shall include in such Registration Statement all or any part of the Warrant shares the Investor requests to be registered for resale, subject to the priorities set forth in this Section 1.3(a). The obligations of the Company under this Section 1.3(a) may be waived by the Investor. In the event that the Registration Statement being filed by the Company under this Section 1.3(a) is for an underwritten offering, the Investor shall, unless otherwise agreed to by the Company, offer and sell the Warrant Shares in an underwritten offering using the same underwriter or underwriters and, subject to the provisions of this Agreement, on the same terms and conditions as other shares of Common Stock included in such underwritten offering. If the managing underwriter(s) advise the Company, in writing, that in their reasonable good faith opinion, marketing or other factors dictate that a limitation on the number of shares of Common Stock which may be included in the Registration Statement is necessary to facilitate and not adversely affect the proposed offering, then the Company shall include in such registration:
 
2
 
(1) first, all securities the Company proposes to sell for its own account; and

(2) second, up to the full number of securities proposed to be registered for the account of the holders of securities entitled to inclusion of their securities in the Registration Statement by reason of demand or mandatory registration rights.

(b)  The Company shall keep each of the Registration Statement required to be filed hereunder effective pursuant to Rule 415 at all times until the earlier of (i) the life that all or a portion of the Collateral is pledged by the Investor; (ii) the date as of which the Investor may sell all of the Warrant Shares covered by such Registration Statement pursuant to Rule 144(k) promulgated under the 1933 Act (or successor thereto) or (iii) the date on which (A) the Investor shall have sold all of the Warrant Shares covered by such Registration Statement and (B) none of the Warrants are outstanding (the "Registration Period"), each of which Registration Statements (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading.

(c) The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective at all times during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Warrant Shares of the Company covered by such Registration Statement until such time as all of such Warrant Shares shall have been disposed of in accordance with the intended methods of disposition by the Investor as set forth in such Registration Statement.

(d)  The Investor agrees that the Company shall not be precluded from registering any additional shares of its Common Stock underlying the securities of the Company in the Registration Statement.

 
1.4
The Loan.

(a) Term of the Loan. The Company agrees that the term of the Loan shall not exceed January 16th, 2009 (the “Term”).

(b) Investor Approval.  The Company agrees that it shall not procure any Loan with a Lender, or execute any definitive documentation in connection with a proposed Loan, without the prior written consent of the Investor, which shall not be unreasonably withheld. The Company shall provide written notice to the Investor which sets forth the terms of a proposed Loan at least 5 business days prior to the execution of definitive documentation in connection with such proposed Loan. The Investor shall have 3 business days following receipt of the notice to reasonably object to the terms proposed Loan. In the event such terms and conditions are modified during the notice period, the Investors shall be given prompt notice of such modification and shall have the right during the 3 business days following the notice of modification, whichever is longer, to reasonably object to the terms proposed Loan.  
 
3

(c) Pledge and Guaranty of the Company’s Chief Executive Officer. The Company shall use its best efforts to cause its Chief Executive Officer to pledge such number of shares of Common Stock beneficially owned by the Chief Executive Officer equal to 100% of the initial amount of the Collateral pledged by the Investor at a price of $.50 per share, as further collateral for the Loan. In addition, the Company shall use its best efforts to cause its Chief Executive Officer to personally guarantee the Loan.

ARTICLE 2.
REPRESENTATIONS AND WARRANTIES OF THE INVESTORS

2.1 Compliance with Law. The Investor’s trading activities with respect to shares of the Company’s Common Stock will be in compliance with all applicable state and federal securities laws, rules and regulations and rules and regulations of the principal market on which the Company’s Common Stock is listed.

2.2 Intent. The Investor is entering into this Agreement for his own account for investment purposes only and not with a view to or for sale in connection with any distribution of the Warrants. The Investor has no present arrangement (whether or not legally binding) at any time to sell the Warrants to or through any person or entity; provided, however, that by making the representations herein, the Investor does not agree to hold such securities for any minimum or other specific term and reserves the right to dispose of the shares underlying the Warrants at any time in accordance with federal and state securities laws applicable to such disposition.
 
2.3 Investment Experience. The Investor acknowledges that he can bear the economic risk and complete loss of its investment in the securities and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment contemplated hereby.
 
2.4. Authorization and Power. The Investor has the requisite power and authority to enter into and perform this Agreement and to purchase the Warrants being issued to him hereunder. The execution, delivery and performance of this Agreement by the Investor and the consummation by him of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate or partnership action, and no further consent or authorization is required. This Agreement has been duly authorized, executed and delivered by the Investor and constitutes, or shall constitute when executed and delivered, a valid and binding obligation of the Investor enforceable against the Investor in accordance with the terms thereof.
 
2.5. No Conflicts. The execution, delivery and performance of this Agreement and the consummation by the Investor of the transactions contemplated hereby or relating hereto do not and will not conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of any agreement, indenture or instrument or obligation to which the Investor is a party or by which his properties or assets are bound, or result in a violation of any law, rule, or regulation, or any order, judgment or decree of any court or governmental agency applicable to the Investor or his properties (except for such conflicts, defaults and violations as would not, individually or in the aggregate, have a material adverse effect on the Investor). The Investor is not required to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency in order for it to execute, deliver or perform any of its obligations under this Agreement or to acquire the Warrants in accordance with the terms hereof, provided that for purposes of the representation made in this sentence, the Investor is assuming and relying upon the accuracy of the relevant representations and agreements of the Company herein.
 
4
 
2.6. Information on Company. The Investor has been furnished with or has had access at the EDGAR Website of the Commission to the Company's Form 10-KSB for the year ended December 31, 2006 as filed with the Commission, together with all subsequently filed Forms 10-QSB, 8-K, and filings made with the Commission available at the EDGAR website (hereinafter referred to collectively as the "SEC Reports"). In addition, the Investor has received in writing from the Company such other information concerning its operations, financial condition and other matters as the Investor has requested in writing (such other information is collectively, the "Other Written Information"), and considered all factors the Investor deems material in deciding on the advisability of investing in the securities. The Investor has had full opportunity to conduct, and has conducted, a complete and thorough due diligence investigation of the Company, and such opportunity has been made available to the Investor’s professional representative(s) to ask questions of and receive answers from representatives of the Company concerning the Company and its financial condition and prospects, as well as request additional information necessary to verify the accuracy of the SEC Reports and Other Written Information provided to Investor.
 
2.7. Information on Investor. The Investor is, and will be at the time of the issuance of the Warrants, an "accredited investor", as such term is defined in Regulation D promulgated by the Commission under the 1933 Act, is experienced in investments and business matters, has made investments of a speculative nature and has purchased securities of United States publicly-owned companies in private placements in the past and, with its representatives, has such knowledge and experience in financial, tax and other business matters as to enable the Investor to utilize the information made available by the Company to evaluate the merits and risks of and to make an informed investment decision with respect to the proposed purchase, which represents a speculative investment. The Investor has the authority and is duly and legally qualified to purchase and own the Warrants. The Investor is able to bear the risk of such investment for an indefinite period and to afford a complete loss thereof. The information set forth on the signature page hereto regarding the Investor is accurate.  The Investor is not required to be registered as a broker-dealer under Section 15 of the Securities Exchange Act of 1934, as amended (the "1934 Act") and the Investor is not a broker-dealer.
 
2.8. Receipt of Warrants. The Investor will receive the Warrants as principal for his own account for investment only and not with a view toward, or for resale in connection with, the public sale or any distribution thereof.
 
5
 
2.9. Compliance with Securities Act. The Investor understands and agrees that the Warrants have not been registered under the 1933 Act or any applicable state securities laws, by reason of their issuance in a transaction that does not require registration under the 1933 Act (based in part on the accuracy of the representations and warranties of Investor contained herein), and that such Securities must be held indefinitely unless a subsequent disposition is registered under the 1933 Act or any applicable state securities laws or is exempt from such registration. Resales of the securities by the Investor will be made in compliance with all applicable securities laws including Regulation M of the Securities Exchange Act and prospectus delivery requirements.
 
2.10. Communication of Offer. The offer to sell the securities was directly communicated to the Investor by the Company. At no time was the Investor presented with or solicited by any leaflet, newspaper or magazine article, radio or television advertisement, or any other form of general advertising or solicited or invited to attend a promotional meeting otherwise than in connection and concurrently with such communicated offer.

2.11. Confidentiality/Public Announcement. From the date of this Agreement and until the Company makes a public announcement of the transactions contemplated by this Agreement by filing a Form 8-K, Investor agrees he will not disclose publicly or privately the nature of the transactions contemplated under this Agreement unless expressly agreed to in writing by the Company, or only to the extent required by law.
 
2.12. Authority; Enforceability. This Agreement and other agreements delivered together with this Agreement or in connection herewith have been duly authorized, executed and delivered by the Investor and are valid and binding agreements enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights generally and to general principles of equity; and Investor has full corporate power and authority necessary to enter into this Agreement and such other agreements and to perform his obligations hereunder and under all other agreements entered into by the Investor relating hereto.

2.13. Restricted Securities. Investor understands that the securities have not been registered under the 1933 Act and the Investor will not sell, offer to sell, assign, pledge, hypothecate or otherwise transfer any of the securities unless pursuant to an effective registration statement under the 1933 Act. Notwithstanding anything to the contrary contained in this Agreement, the Investor may transfer (without restriction and without the need for an opinion of counsel) the securities to his Affiliates (as defined below) provided that each such Affiliate is an “accredited investor” under Regulation D and such Affiliate agrees to be bound by the terms and conditions of this Agreement. For the purposes of this Agreement, an “Affiliate” of any person or entity means any other person or entity directly or indirectly controlling, controlled by or under direct or indirect common control with such person or entity. Affiliate includes each subsidiary of the Company. For purposes of this definition, “control” means the power to direct the management and policies of such person or firm, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise.

2.14. No Governmental Review. The Investor understands that no United States federal or state agency or any other governmental or state agency has passed on or made recommendations or endorsement of the securities or the suitability of the investment in the securities nor have such authorities passed upon or endorsed the merits of the offering of the securities.
 
6
 
2.15. No Market Manipulation. The Investor has not taken, and will not take, directly or indirectly, any action designed to, or that might reasonably be expected to, cause or result in stabilization or manipulation of the price of the Common Stock to facilitate the sale or resale of the securities or affect the price at which the securities may be issued or resold.

2.16. Short Position and Short Sales. The Investor covenants that neither he nor any of his affiliates will engage in any illegal short sales of or illegal hedging transactions with respect to the Common Stock.

2.17. Correctness of Representations. The Investor represents that the foregoing representations and warranties are true and correct as of the date hereof and, unless the Investor otherwise notifies the Company prior to the date hereof, shall be true and correct as of the date hereof.

2.18. Survival. The foregoing representations and warranties shall survive for a period of two years from the date hereof.

ARTICLE 3.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY


3.2. Authority. (i) The Company has the requisite corporate power and corporate authority to enter into and perform its obligations under this Agreement and to issue the Warrants and the Warrant Shares pursuant to their respective terms, (ii) the execution, issuance and delivery of the this Agreement, the Warrants by the Company and the consummation by it of the transactions contemplated thereby have been duly authorized by all necessary corporate action and no further consent or authorization of the Company or its Board of Directors or stockholders is required, and (iii) this Agreement and the Warrants have been duly executed and delivered by the Company and shall constitute valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, or similar laws relating to, or affecting generally the enforcement of, creditors’ rights and remedies or by other equitable principles of general application. The Company has duly and validly authorized and reserved for issuance shares of Common Stock sufficient in number for the conversion of the exercise of the Warrants. The Company further acknowledges that its obligation to issue Warrant Shares upon exercise of the Warrants in accordance with this Agreement is absolute and unconditional regardless of the dilutive effect that such issuance may have on the ownership interests of other stockholders of the Company. 
 
7
 

3.4. SEC Documents. The SEC Reports contain all material information relating to the Company and its operations and financial condition as of their respective dates which information is required to be disclosed therein. Since the date of the financial statements included in the SEC Reports, there has been no material adverse event relating to the Company's business, financial condition or affairs not disclosed in the SEC Reports. The SEC Reports do not contain any untrue statement of a material fact.

3.5. Exemption from Registration; Valid Issuances. Subject to the accuracy of the Investor’s representations in Article 2, the sale of the Warrants and the Warrant Shares will not require registration under the Securities Act and/or any applicable state securities law (other than any SEC, Principal Market or state securities filings that may be required to be made by the Company subsequent to closing and any registration statement that may be filed pursuant hereto). When issued and paid for in accordance with the Warrants, the Warrant Shares will be duly and validly issued, fully paid, and non-assessable. Neither the sales of the Warrants or the Warrant Shares pursuant to, nor the Company’s performance of its obligations under this Agreement and the Warrants will (i) result in the creation or imposition by the Company of any liens, charges, claims or other encumbrances upon the Warrants or the Warrant Shares or, except as contemplated herein, any of the assets of the Company, or (ii) entitle the holders of outstanding capital shares to preemptive or other rights to subscribe for or acquire the capital shares or other securities of the Company. None of the securities shall subject the Investor to personal liability to the Company or its creditors by reason of the possession thereof.


3.7. No Conflicts. The execution, delivery and performance of this Agreement and the consummation by the Company of the transactions contemplated hereby or relating hereto do not and will not (i) result in a violation of the Company’s charter documents or bylaws or other organizational documents or (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of any agreement, indenture or instrument or obligation to which the Company is a party or by which its properties or assets are bound, or result in a violation of any law, rule, or regulation, or any order, judgment or decree of any court or governmental agency applicable to the Investor or its properties (except for such conflicts, defaults and violations as would not, individually or in the aggregate, have a material adverse effect on the Company). The Company is not required to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency in order for it to execute, deliver or perform any of its obligations under this Agreement sell the Warrants in accordance with the terms hereof, provided that for purposes of the representation made in this sentence, the Company is assuming and relying upon the accuracy of the relevant representations and agreements of the Investor herein.
 
8

3.8. No Material Adverse Change. Since December 31, 2005 no material adverse effect has occurred or exists with respect to the Company, except as disclosed in the SEC Reports filed prior to the date hereof and available on EDGAR.

3.9. Litigation and Other Proceedings. Except as disclosed in the SEC Reports, there are no lawsuits or proceedings pending or, to the knowledge of the Company, threatened, against the Company, nor has the Company received any written or oral notice of any such action, suit, proceeding or investigation, which could reasonably be expected to have a material adverse effect. Except as set forth in the SEC Reports, no judgment, order, writ, injunction or decree or award has been issued by or, to the knowledge of the Company, requested of any court, arbitrator or governmental agency which could result in a material adverse effect. There is no action, proceeding or investigation by the Company currently pending or that the Company intends to initiate.

3.10. No Misleading or Untrue Communication. The Company and, to the knowledge of the Company, any person representing the Company, or any other person selling or offering to sell the Warrants in connection with the transaction contemplated by this Agreement, have not made, at any time, any oral communication in connection with the offer or sale of the same which, together with all such communications, including the SEC Reports, taken as a whole, contained any untrue statement of a material fact.

3.11 Reservation of Common Stock. As of the date hereof, the Company has reserved and the Company shall continue to reserve and keep available at all times shares of Common Stock for the purpose of enabling the Company to issue the Warrant Shares pursuant to any exercise of the Warrants in an amount not less than the number needed to provide for the issuance of Warrant Shares, as may be adjusted from time to time. The Company further agrees that if at any time the number of shares of Common Stock issuable upon conversion of the Warrants would cause the Company to be obligated to issue a number of shares of Common Stock in excess of its authorized capital (after taking into account all other capital shares equivalents then existing), it shall promptly commence all necessary corporate and stockholder action necessary to increase its authorized capital so as to eliminate the aforesaid condition.

3.12. Listing of Common Stock. The Company hereby agrees to maintain the listing or quotation of the Common Stock on a principal market, and as soon as required by the rules of the principal market to list the Warrant Shares on the principal market. The Company further agrees, if the Company applies to have the Common Stock traded on any other principal market, it will include in such application the Warrant Shares, and will take such other action as is necessary or desirable in the opinion of the Investor to cause the Warrant Shares to be listed on such other principal market as promptly as possible. The Company will take all action necessary to continue the listing and trading of its Common Stock on a principal market and will comply in all respects with the Company’s reporting, filing and other obligations under the bylaws or rules of the principal market.
 
9
 

3.13. Corporate Existence; Conflicting Agreements. The Company will take all steps necessary to preserve and continue the corporate existence of the Company. The Company shall not enter into any agreement, the terms of which agreement would restrict or impair the right or ability of the Company to perform any of its obligations under this Agreement or any of the other Transaction Documents.

3.14. Issuance of Warrant Shares. The sale of the Warrants and the issuance of the Warrant Shares pursuant to exercise of the Warrants shall be made in accordance with the provisions and requirements Section 4(2), 4(6) or Regulation D and any applicable state securities law. The Company shall make any necessary SEC and “blue sky” filings required to be made by the Company in connection with the sale of such securities to the Investor as required by all applicable laws.

ARTICLE 4.
LEGENDS

4.1
Legends. The Warrant Shares shall bear the following or similar legend:

"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED OR APPLICABLE STATE SECURITIES LAWS. THESE SHARES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAW OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO TXP CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED."
 
(i) Warrants Legend. The Warrants shall bear the following or similar legend:
 
"THIS WARRANT AND THE COMMON SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED OR APPLICABLE STATE SECURITIES LAWS. THIS WARRANT AND THE COMMON SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THIS WARRANT UNDER SAID ACT OR ANY APPLICABLE STATE SECURITIES LAW OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO TXP CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED."
 
10
 
ARTICLE 5.
GENERAL PROVISIONS
 
5.1 Specific Performance. The parties hereto acknowledge and agree that the breach of this Agreement would cause irreparable damage to the non-breaching parties and that the non-breaching parties will not have an adequate remedy at law. Therefore, the obligations of each of the parties under this Agreement, shall be enforceable by a decree of specific performance issued by any court of competent jurisdiction, and appropriate injunctive relief may be applied for and granted in connection therewith. Such remedies shall, however, be cumulative and not exclusive and shall be in addition to any other remedies which any party may have under this Agreement or otherwise.
 
5.2 Further Assurances. The parties hereto each agree to execute and deliver such other documents or agreements and to take such other action as may be reasonably necessary or desirable for the implementation of this Agreement and the consummation of the transactions contemplated hereby.
 
5.3 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
 
5.4 Headings. Section headings of this Agreement are for reference purposes only and are to be given no effect in the construction or interpretation of this Agreement.
 
5.5 Binding Effect. This Agreement is irrevocable and shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
 
5.6 Counterparts. This Agreement may be executed in counterparts, each of which when executed by any party will be deemed to be an original and all of which counterparts will together constitute one and the same Agreement. Delivery of executed copies of this Agreement by telecopier will constitute proper delivery, provided that originally executed counterparts are delivered to the parties within a reasonable time thereafter.
 
5.7 Expenses. Each party shall pay its own expenses incident to the negotiation, preparation and performance of this Agreement and the transactions contemplated hereby, including all fees and expenses of its counsel and accountants for all activities of such counsel and accountants undertaken pursuant to this Agreement, whether or not the transactions contemplated hereby are consummated.
 
11
 
5.8 Amendments; Waivers. This Agreement may not be amended or modified, nor may compliance with any condition or covenant set forth herein be waived, except by a writing duly and validly executed by Investor and the Company, or, in the case of a waiver, the party waiving compliance. No delay on the part of any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any party of any such right, power or privilege, or any single or partial exercise of any such right, power or privilege, preclude any further exercise thereof or the exercise of any other such right, power or privilege.
 
[Remainder of page intentionally left blank.]
 
12
 
IN WITNESS WHEREOF, this Agreement has been duly executed as of the day and year first written above.
     
  TXP CORPORATION
 
 		  
 		  
 
By:   /s/ Michael C. Shores
 
Name: Michael C. Shores
Title: Chief Executive Officer
 
    /s/ James Von Ehr II
 
                       James Von Ehr II
 
13