Item 1. Security and Issuer
State the title of the class of equity securities to which
this statement relates and the name and address of the principal executive
offices of the issuer of such securities.
Common Stock, no par value
The issuer’s name and address is: Tigrent, Inc. (the “
Issuer
”), 1612 East Cape
Coral Parkway, Cape Coral Florida 33904
Item 2. Identity and Background
Pursuant to Rule 13d-1(k)(1) of the Securities
Exchange Act of 1934, as amended (the “
Act
”), this Statement is
being filed by: Rich Global, LLC, a Wyoming limited liability company (“
Rich Global
”); Rich Dad
Operating Company, LLC, a Nevada limited liability company (“
RDO
”); Robert T. Kiyosaki;
and Kim M. Kiyosaki (each a “
Reporting Person
” and
collectively, the “
Reporting
Persons
”), each of which is described below.
Rich Global, LLC, a Wyoming limited liability company
(“
Rich
Global
”).
Rich Dad Operating Company, LLC, a Nevada limited liability
company (“
RDO
”)
Robert T. Kiyosaki
Kim M. Kiyosaki
As of the date hereof, Rich Global beneficially owns
1,290,000 shares of Common Stock, representing 9.9% of the Issuer’s outstanding
shares of Common Stock as of June 2, 2010. RDO owns 100% of the issued and
outstanding membership interests of Rich Global. Mr. Kiyosaki and Ms.
Kiyosaki each own 50% of the issued and outstanding membership interests of
RDO. Mr. Kiyosaki and Ms. Kiyosaki are the managing members of
RDO.
The stock ownership percentages contained in this Statement
and the cover pages hereto are based upon information provided by the
Issuer to the Reporting Persons that 11,738,587 shares of Common Stock were
outstanding as of June 2, 1010.
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(b)
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Business address: The business address of
each of the Reporting Persons is:
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4330 North Civic Center Plaza, Suite 101, Scottsdale,
Arizona, 85251
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(c)
|
Present principal occupation or employment and the
name, principal business and address of any corporation or other
organization in which such employment is
conducted:
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The Rich Dad companies were formed based on the teachings
of Robert Kiyosaki and Kim Kiyosaki. In 1996, the Kiyosakis formed certain of
the Rich Dad group of entities to raise global financial literacy. The Kiyosakis
continue their efforts on an international basis through the use of the Rich Dad
series of books, CASHFLOW games, audio/video products, Internet channels, live
seminars, and educational programs. The Rich Dad series of books, launched with
the "
Rich
Dad Poor Dad
" book, was a New York Times bestseller for over 5 years and
has sold copies throughout the world, translated into multiple languages. "
Rich Dad Poor
Dad"
has been followed by additional books in the Rich Dad series and the
Rich Dad's Advisor series. Kim Kiyosaki is the author of the "
Rich
Woman
" book; which is one of the top 50 best-selling personal finance
books of all time.
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CUSIP NO.
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Mr. Kiyosaki and Ms. Kiyosaki are the managing members of
RDO. RDO is a holding company and is the managing member of Rich
Global. RDO owns 100% of the issued and outstanding membership
interests of Rich Global. Certain activities of the Rich Dad
businesses are conducted through Rich Global.
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(d)
|
Whether or not, during the last five years, such
person has been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) and, if so, give the dates, nature of
conviction, name and location of court, and penalty imposed, or other
disposition of the case:
|
None of the Reporting Persons has ever been convicted in a
criminal proceeding.
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(e)
|
Whether or not, during the last five years, such
person was a party to a civil proceeding of a judicial or administrative
body of competent jurisdiction and as a result of such proceeding was or
is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, federal
or state securities laws or finding any violation with respect to such
laws; and, if so, identify and describe such proceedings and summarize the
terms of such judgment, decree or final
order:
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None of the Reporting Persons have, during the last five
years, been a party to a civil proceeding of a judicial or administrative body
of competent jurisdiction and, as a result of such proceeding, were, or are
subject to, a judgment, decree or final order enjoining future violations of, or
prohibiting or maintaining activities subject to, federal or state securities
laws or finding any violation with respect to such laws.
Each of Mr. Kiyosaki and Ms. Kiyosaki is a U.S.
citizen.
Item 3. Source and Amount of Funds or Other
Consideration
The information contained in Item 4 of this Statement is
hereby incorporated by reference into this Item 3.
Item 4. Purpose of Transaction
The information contained in Items 2, 5 and 6 of this
Statement is hereby incorporated by reference into this Item 4.
On May 26, 2010,the Issuer entered into definitive
agreements with Rich Global and RDO to restructure the agreements under which
the Issuer licenses and operates under the Rich Dad brand. Rich Global and
RDO (collectively, the “
Rich
Dad Parties
”) are entities controlled by Robert and Kim Kiyosaki.
Mr. Kiyosaki is the author of the internationally best selling
Rich Dad Poor
Dad
and other books that teach readers about financial literacy.
The Issuer provides courses that are based on the teachings and philosophies
outlined by Mr. Kiyosaki in the
Rich Dad Poor
Dad
book series. The Issuer has entered into a
(i) License Agreement, dated May 26, 2010 (the “
License Agreement
”), with
Rich Global and RDO, for the Rich Dad Brand, and (ii) Settlement Agreement
and Release, dated May 26, 2010 (the “
Settlement Agreement
”), with
Rich Global and RDO, related to the Issuer’s previous licensing agreement for
the Rich Dad brand and which commits the parties to enter into a cooperative
marketing agreement that contemplates the development and implementation of
improved customer contact management strategies.
The Settlement Agreement provides for the issuance of 9.9%
of the Issuer’s outstanding common stock (i.e., 1,290,000 shares) to Rich Global
on or about June 2, 2010 and the redemption of Rich Global’s 49% interest in a
related entity, the limited liability company that was formed by the Issuer and
Rich Global to operate the Rich Dad business. The Issuer’s common stock issued
to Rich Global will be subject to a registration rights agreement (the “
Rights Agreement
”) with the
Issuer, which will give Rich Global demand and piggyback registration rights
after January 1, 2011. The registration rights terminate on
March 16, 2013. The Issuer has agreed to release Rich Global from
certain general claims.
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The above descriptions of the Settlement Agreement and
Rights Agreement are qualified in their entirety by reference to the Settlement
Agreement and Rights Agreement, which are attached to this Schedule 13D as
Exhibit B and Exhibit C, respectively, and are incorporated herein by
reference.
None of the persons listed in Item 2 has any present plans
or proposals that relate to or would result in the occurrence of any of the
events specified in clauses (a) through (j) of the instructions to
Item 4 of Schedule 13D. The Reporting Persons reserve the right to
formulate plans or make proposals, and take such actions with respect to their
investment in the Issuer, including any action that relates to or would result
in the occurrence of any or all of the events specified in clauses
(a) through (j) of the instructions to Item 4 of
Schedule 13D, and any other actions, as they may determine. The Reporting
Persons intend to review continually their investment in the Issuer, depending
upon future evaluations of the business prospects of the Issuer and upon other
developments, including but not limited to, general economic and business
conditions and stock market conditions. The Reporting Persons may determine to
increase or decrease their equity position in the Issuer by acquiring additional
shares or disposing of some of the shares they may hold.
Item 5. Interest in Securities of the
Issuer
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(a)
|
Aggregate number and percentage of the class of
securities beneficially owned:
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The information contained in Items 2, 4 and 6 of this
Statement is hereby incorporated by reference into this Item 5.
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(b)
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Number of shares as to which there is sole power to
vote or to direct the vote, shared power to vote or to direct the vote,
sole power to dispose or to direct the disposition, or shared power to
dispose or to direct the
disposition:
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The information contained in Items 2, 4 and 6 of this
Statement is hereby incorporated by reference into this Item 5.
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(c)
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Transactions in the securities effected during the
past sixty days:
None, except as described in Item
4.
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(d)
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No other person has the right to receive or the power
to direct the receipt of dividends from, or the proceeds from the sale of,
such securities.
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(e) Not
applicable.
Item 6. Contracts, Arrangements, Understandings
or Relationships with Respect to Securities of the Issuer.
On June 2, 2010, the Reporting Persons entered into a Joint
Filing Agreement in which the Reporting Persons agreed to the joint filing on
behalf of each of them of statements on Schedule 13D, with respect to securities
of the Issuer, to the extent required by applicable law. A copy of
this agreement is attached hereto as Exhibit A and is incorporated herein
by reference.
Pursuant to the Settlement Agreement, effective as of June
2, 2010, Rich Global was issued 1,290,000 shares of the Issuer’s Common
Stock. The Issuer’s common stock issued to Rich Global will be
subject to the Rights Agreement with the Issuer, which will give Rich Global
demand and piggyback registration rights after January 1,
2011. The registration rights terminate on March 16,
2013.
None of the Reporting Persons, nor to the knowledge of the
Reporting Persons, any of the persons listed in Item 5, except as described in
this Item 6, has any contract, arrangement, understanding, or relationship
(legal or otherwise) with any person with respect to any securities of the
Issuer, including but not limited to transfer or voting of such securities,
finder’s fees, joint ventures, loan or option arrangements, puts or calls,
guarantees of profits, division of profits or loss, or the giving or withholding
or proxies.
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Item 7. Material to Be Filed as
Exhibits.
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Exhibit A
Exhibit B
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Agreement as to joint filings pursuant to Regulation
Section 240.13d-1(k)(1)(iii)
Settlement
Agreement
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Exhibit C
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Rights
Agreement
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CUSIP NO.
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Page 10
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SCHEDULE 13D
SIGNATURE
The undersigned, after reasonable inquiry and to the best
of his/its knowledge and belief, certifies that the information set forth in
this statement is true, complete and correct.
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Dated: June 25,
2010
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RICH GLOBAL, LLC
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By:
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Rich Dad Operating
Company, LLC
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By:
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/s/ Robert T.
Kiyosaki
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Robert T. Kiyosaki,
Managing Member
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By:
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/s/ Kim M.
Kiyosaki
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Kim M. Kiyosaki, Managing
Member
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RICH DAD OPERATING COMPANY,
LLC
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By:
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/s/ Robert T.
Kiyosaki
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Robert T. Kiyosaki,
Managing Member
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By:
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/s/ Kim M.
Kiyosaki
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Kim M. Kiyosaki,
Managing Member
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/s/ Robert T.
Kiyosaki
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Robert T.
Kiyosaki
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/s/ Kim M.
Kiyosaki
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Kim M.
Kiyosaki
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EXHIBIT A
AGREEMENT AS TO JOINT FILING
Pursuant to Regulation Section
240.13d-1(k)(1)(iii), the undersigned acknowledge and agree that the attached
Schedule 13D relating to Tigrent, Inc. is being filed on behalf of each of the
undersigned.
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Dated: June 25,
2010
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RICH GLOBAL, LLC
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By:
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Rich Dad Operating
Company, LLC
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By:
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/s/ Robert T.
Kiyosaki
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Robert T. Kiyosaki,
Managing Member
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By:
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/s/ Kim M.
Kiyosaki
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Kim M. Kiyosaki, Managing
Member
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RICH DAD OPERATING COMPANY,
LLC
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By:
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/s/ Robert T.
Kiyosaki
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Robert T. Kiyosaki,
Managing Member
|
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By:
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/s/ Kim M.
Kiyosaki
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Kim M. Kiyosaki,
Managing Member
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/s/ Robert T.
Kiyosaki
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Robert T.
Kiyosaki
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/s/ Kim M.
Kiyosaki
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Kim M.
Kiyosaki
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EXHIBIT
B
RICH
DAD EDUCATION, LLC
SETTLEMENT
AGREEMENT AND RELEASE
Rich
Global, LLC, a Wyoming limited liability company, with its principal place of
business at 4330 N. Civic Center Plaza, Suite 100, Scottsdale, Arizona 85251
("RG"), Tigrent Inc., a Colorado corporation, with its principal place of
business at 1612 E. Cape Coral Parkway, Cape Coral, Florida 33904
("Tigrent"),
Rich Dad Education, LLC, a Wyoming limited liability company, with its
principal place of business at 1612 E. Cape Coral Parkway, Cape Coral, Florida
33904
("RDE"),
and Rich Dad Operating Company, LLC, a Nevada limited liability company,
with its principal place of business at 4330 N. Civic Center Plaza, Suite 100,
Scottsdale, Arizona 85251
("RDOC")
(each, a
"Party"
and collectively, the
"Parties")
hereby enter into this Settlement Agreement and Release
("Agreement")
effective
March
16,
2010
(the
"Effective
Date").
RDOC is an intended third-party beneficiary to certain rights
established within this Agreement.
RECITALS
WHEREAS,
the Parties are parties to a certain Letter of Intent dated
March
16,
2010;
and
WHEREAS,
the Letter of Intent calls for the Parties to enter into certain
additional agreements, including this Agreement;
NOW,
THEREFORE,
in consideration of the mutual promises and obligations
contained herein, the Parties agree as follows:
COVENANTS
Section
1
Settlement
Terms
Section
1.1
Equity
Grant.
In settlement of the claims set forth
herein,
Tigrent hereby agrees to transfer to RDE, without additional
consideration
from RDE or RG, an aggregate of
1,290,000
shares of
Tigrent's
common
stock, which represents a
9.9%
ownership
interest in Tigrent on a
fully-diluted
basis (the
"Shares").
Section
1.2
Redemption
of RDE Membership Interest.
RDE hereby
redeems
RG's entire membership interest in RDE (49%) in exchange for RDE's distribution
to RG of
(a)
the Shares and
(b)
the Data Base (as defined below) both free and clear of any liens or
encumbrances.
Section
1.3
Shares
Distribution.
RDE hereby distributes
concurrently
to RG the Shares, free and clear of any liens or encumbrances.
Once
Tigrent has completed the issuance of shares to RG, RG shall promptly
file on
its own behalf a
Form
13 D
filing, indicating that RG holds in excess of
5%
of the
outstanding shares in Tigrent. Tigrent shall reimburse RG for
certain
of RG's expenses in connection with this filing pursuant to
Section
10.3
of this
Agreement. The Shares issued herein shall be subject to a
separate
shareholder rights agreement, which will include piggyback rights and demand
rights exercisable after
January
1, 2011,
in the
form attached
hereto as
Exhibit
A
(the
"Registration
Rights Agreement"),
Section
1.4
Data
Base Distribution.
The Data
Base"
means the
Data Base
referenced in
Section
2.8
of the Rich Dad Education, LLC Limited Liability Company Agreement
("Operating
Agreement").
RDE hereby agrees to immediately distribute the Data Base to
RG. The Parties hereby agree that:
(a)
RG will be the sole owner of the leads contributed to the Data Base by
the Company so long as RG uses and discloses each lead in conformance with the
privacy policy under which it was collected and all applicable law and
(b)
Tigrent forfeits its rights in the Leads and will have access to and use
the Leads solely as permitted by the Cooperative Marketing and Advertising
Agreement contemplated by this Agreement. RG assumes responsibility for and will
comply with all current and future laws, rules, regulations and official
guidelines regarding the distribution of the Data Base to RG as contemplated
herein or the use or disclosure of any information within the Data Base,
including any use or disclosure by RG to Tigrent or PEI (as defined
below).
Section
1.5
Cooperative
Marketing and Advertising Agreement.
In
addition
to the other agreements contemplated by this Agreement, Tigrent and RDOC will
enter into a Cooperative Marketing and Advertising Agreement
("Cooperation
Agreement").
Tigrent and RG will use best efforts to join Legacy
Learning, LLC, a Delaware limited liability company dba Professional Education
Institute
("PEI")
to the Cooperation Agreement as well. The Cooperation Agreement is
intended to align the interests of all
3
companies that are core to the Rich Dad brand, and to create and
implement a cross-company marketing strategy that is transparent, creates a
seamless experience for Rich Dad customers and is fair to all the
partners.
Section
1.6
RG
Specific Release.
RG on behalf of itself, Robert T.
Kiyosaki,
Kim Kiyosaki, CASHFLOW Technologies, Inc., RDOC and their affiliates, past,
present and future officers, directors, shareholders, parent corporations,
subsidiary corporations, agents, attorneys, and employees (the
"RG
Parties"]
hereby fully and forever release, remise and discharge RDE,
Tigrent, its past, present and future officers, directors, shareholders, parent
corporations, subsidiary corporations, agents, attorneys, and employees (each a
"Tigrent
Party"),
of and from certain claims and demands arising out of the
relationship between the parties, any agreement executed between the parties,
including the Administrative Services Agreement, the WIN License Agreement, the
Rich Dad Operating Agreement and the Rich Dad License Agreement (each as defined
below), which are specifically limited to: any and
all such
claims and demands directly or indirectly, known or unknown, suspected or
unsuspected but arising out of claims and demands previously made by RG related
to (each of the following are individually and collectively referred to herein
as the
"RG
Claims"):
Section 1.6.1
Expenditures.
Past
expenditures related to the
operation
of RDE of approximately
$583,075;
and
Section 1.6.2
Claims.
The release
of specified Claims related to
the
operations of RDE approximately $10,050,000, detailed as follows:
Section 1.6.2.1
Rich Global had been
underpaid
$1,050,339
in
royalties as of the date of the Notice;
Section 1.6.2.2
Whitney Education
Group
("WEG")
has failed
to ensure
that state sales tax payments are made on a timely basis, subjecting RDE to
penalties in addition to the tax payments;
Section 1.6.2.3
WEG had been
overpaid in excess of
$4,000,000
in management fees
as of the date of the Notice pursuant to the only effective agreements in
place;
Section 1.62.4
The offset credit of
$5,000,000
that WEG
claimed
against RDE for fulfilling RDE's obligation to students who do not attend the
seminars for which they paid by sending those students DVDs of the course
materials;
Section 1.6.2.5
allegations of brand
damage in an
unspecified
amount; and
Section 1.6.2.6
any and all claims
alleged by RG in its
purported
letter of default dated
March
27, 2009.
Section 1.6.3
Limitation on
Release.
Notwithstanding the
specific
nature of the release of the RG Claims, this
Section 1.6
will not apply to
any claims for indemnification or contribution based on or arising out of claims
made by the Learning Annex.
Section 1.6.4
Covenant Not to Sue.
RG, on behalf of itself and
each RG
Party, covenants not to sue or to initiate any legal or administrative
proceeding against any Tigrent Party with regard to any or all of the RG Claims
released in this Agreement.
Section
1.7
Tigrent
General Release.
Tigrent, on behalf of itself and
the
Tigrent Parties, hereby fully and forever releases, remises and discharges
the RG
Parties, of and from any and all claims and demands of every kind and
nature,
known and unknown, regarding the RG Parties, or arising out of the
relationship
between the parties, any agreement executed between the
parties,
including the Administrative Services Agreement, the WIN License
Agreement,
the Rich Dad Operating Agreement and the Rich Dad License
Agreement,
or arising out of any liability due or fees and expenses owed by
any RG
Party to any Tigrent Party at any time prior to and including the
execution
date hereof, suspected and unsuspected, disclosed and
undisclosed,
including, without limitation, with respect to all claims and
demands
for breach of contract, promissory estoppel, detrimental reliance,
fraud,
and misrepresentation, and for any and all damages actual and
consequential,
past, present and future, claims for attorneys fees, and all
other
forms of relief (the
"Tigrent
Claims").
Section
1.7.1
Limitation
on Release.
Notwithstanding the
general
nature of the release, this
Section
1.6
will not apply to any claims for indemnification or contribution
based on or arising out of claims made by the Learning Annex.
Section
1.7.2
Covenant
Not to Sue.
Tigrent, on behalf of itself
and each
Tigrent Party, hereby covenants not to sue or to initiate any legal or
administrative proceeding against any RG Party with regard to any or all Tigrent
Claims released in this Agreement.
Section
2
Student
Fulfillment.
Tigrent retains sole responsibility for
fulfillment
of the student coursework, including but not limited to the student course work
related to RDE. Tigrent agrees to fulfill all student course work required by
those students who paid for RDE basic training, Rich U or Tigrent's Advanced
Training. Further, Tigrent covenants and agrees that, subject to the provisions
of that certain Licensing Agreement dated as of
March
16, 2010
by and among RDOC and Tigrent (the
"2010
License Agreement")
and the attainment of the Reserve Goal set forth
therein, it will maintain a cash position of not less than
30%
of its deferred revenue, so as to have ample funds to address student
fulfillment.
Section
3
Terminated
and Additional Agreements.
Section
3.1
Terminated
Agreements.
The Parties hereby agree to
terminate
the following agreements as of the Effective Date, through
the
Termination Agreements attached hereto:
Section
3.1.1
Administrative
Services Agreement by and
between
Tigrent Group Inc. formerly known as Whitney Education
Group,
Inc. and RDE dated
July
18, 2006,
as amended, if any (the
"Administrative
Services Agreement"),
attached
hereto as
Exhibit
B;
Section
3.1.2
License Agreement by
and between Tigrent
formerly
known as Whitney Information Network, Inc., as licensor and RDE, as licensee
dated
July
18, 2006,
as amended, if any (the
"Tigrent
License Agreement"),
attached hereto as
Exhibit
C;
and
Section
3.1.3
License Agreement by
and between RG as
licensor
and RDE as licensee dated
July
18, 2006
(the
"RG
License
Agreement"),
attached hereto as
Exhibit
D.
Any Royalties due and owing as of the termination date shall paid
payable to RG by RDE in accordance with the royalty rates set forth in the
2010
License Agreement (as set forth below).
Section
3.2
Additional
Agreements.
In addition to this Agreement,
the
Parties hereby agree to execute (or cause the execution of) the following
additional agreements as of the Effective Date:
Section
3.2.1
Cooperation
Agreement as set forth in
Section
1.5
above;
Section
3.2.2
The
2010
License Agreement in the form
attached
hereto as
Exhibit
E
by and
between RDOC and Tigrent
("2010
License Agreement");
Section
3.2.3
Registration Rights
Agreement; and
Section
3.2.4
Cash Collateral and
Escrow Agreement by and
among
Tigrent, RDOC, and U.S. Bank, N.A., an escrow agent qualified in
the form
attached hereto as
Exhibit
F.
Section
4
Winding
Up and Dissolution of RDE.
Tigrent agrees to take
reasonable
steps to promptly wind up and dissolve RDE. The parties agree that RDE will
conduct no new business of any form. Tigrent acknowledges that
1
of the effects of the RDE's redemption of RG's interest in RDE is that
Tigrent will be solely responsible for any and all liabilities related to the
operation of RDE. Prior to the dissolution of RDE, Tigrent shall
(a)
assume RDE's outstanding debts and liabilities, including but not limited
to those obligations and duties related to fulfillment of student course work
and
(b)
transfer, deposit assign or otherwise designate all funds from the
accounts of RDE into Tigrent accounts.
Section
5
Tigrent
Board of Directors; Consultation Right on Certain
Hires.
Tigrent will consult with Rich Dad prior to hiring any Chief Executive Officer,
Chief Financial Officer, or any officer that reports directly to the Chief
Executive Officer. All information disclosed as part of the search will be
considered the Confidential Information (as defined in the
2010
License Agreement) of Tigrent and shall be subject to the provisions of
Section
4.1
of the
2010
License Agreement.
Section
6
Amendment
to Operating Agreement.
The Operating
Agreement
is hereby amended to read as follows:
Section
6.1
Built
In Gain Property.
The Members hereby
acknowledge
and agree that they have not contributed any property to a
company
where the Internal Revenue Code (the
"Code")
Section 704 (b)
book
value of the property differs from the contributing partner's adjusted
tax basis
in such property. There is no property contributed to the company
with
built-in gains or built-in losses are commonly known as
"Section
704
(c)
property."
Section
6.2
Amendment
and Restatement of
Section
3.1.
Section
3.1
shall be deleted in its entirety and replaced with the
following:
"3.1
Distributions.
Except as expressly set forth in
Section
9
or as otherwise proved below, and subject to the provisions of
Section
2.7
hereof, Members have no right to receive, demand or expect any
distributions of cash or property prior to dissolution. Each calendar quarter,
the Manager shall determine in its reasonable judgment Net Cash Flow, if
available, which shall be distributed to the Members, which distributions of Net
Cash Flow shall be made in the following priority:
"First,
proportionate
to their respective Unreturned Capital
Contributions
until each Member's Unreturned Capital
Contribution
has been reduced to
zero
(the
parties hereto
acknowledge
that as of the date of this Operating Agreement,
Unreturned
Capital Contributions for each Member is
zero);
"Second,
to the Members until their pro rata portion of their capital accounts are
equal to the percentage of profits interest as set forth on
Exhibit
A
of all capital account balances.
"Third,
Net Cash
Flow shall be distributed to all Members
based on
their percentage of profits interest as set forth on
Exhibit
A.
"Such
distributions, if any, shall be made at the times and in the amount and manner
set forth in writing in a resolution of the Manager. Such distributions, if any,
shall be in cash, as determined by the Manager and shall be made within
60
days
following the end of each calendar quarter during which such Net
Cash Flow is available."
Section
6.3
Amendment
and Restatement of
Section
4.1.
Section
4.1
shall be deleted in its entirety and replaced with the
following:
"4.1
Allocation of
Profits and Losses.
"4.1.1
Profits shall be allocated and credited to the Capital Accounts of the
Members as follows and in the following order of priority:
"First,
among the Members in an amount equal to the Losses, if any, allocated to
their Membership Interests pursuant to
Section
4.1.2
and not previously offset by Profits allocated to their Membership
Interests pursuant to this
Section
4.1.1.
The Profits allocated pursuant to this
Section
4.1.1
shall be allocated among such Members to offset Losses on a
year-by-year basis, with the Profits first offsetting the Losses allocated in
the year most recent to the year of such Profits allocation and then to offset
Losses in the preceding years with the most recent Losses being offset first in
the proportion that each such Member's allocable share of the Losses for each
such years bears to the total Net Loss allocated for such year; and
"Second,
to such Members, in
proportion to their
Profits Interest set forth on
Exhibit
A.
"4.1.2
Losses for each year shall be allocated and charged to the Capital
Accounts of the Members as follows and in the following order of
priority:
"First,
among the Members in an amount equal to
the
Profits previously allocated
to the Members and not previously offset by losses allocated pursuant to this
Section
4.1.2.
The Losses allocated pursuant to this
Section
shall be allocated between the Members to offset Profits on a
year-by-year basis, with the Losses first offsetting the Profits allocated in
the year most recent to the year of such Profit allocation and then to offset
Profits in the preceding years, with the most
recent
Profit being offset first in the proportion that each Members' allocable share
of the Profits for such year bears to the total Profits allocated for such
year;
"Second,
among such Members in an amount up to but not exceeding such Member's
positive Capital Account in the proportion that each such Member's Capital
Account bears to the aggregate Capital Accounts of all such
Members;
"Third,
among such Members in an amount up to be not exceeding their at-risk
basis in their Membership Interest under
Code
Sections 704(d)
and
465
(which would permit the Members with at-risk basis to incur negative
capital accounts);
"Fourth,
any suspended Losses which have been allocated to a Member for which a
Member has no at-risk basis and for which the suspended Losses have been carried
over to another year in which the Member has no at-risk basis, and if such other
Member has at-risk basis, such gross income shall be reallocated from the Member
which has no at-risk basis to the Member which has the at-risk basis in an
amount equal to the Suspended Losses, at the earliest time practicable;
and
"Thereafter,
to such
Members, in proportion to
their
Profits
Interest
set forth
on
Exhibit
A."
Section
7
Recitation
of Prior Tax Status.
Tigrent managed the prior
business
as Manager, and served as tax matters partner in that capacity. Rich Global, LLC
did not have any authority to change or vary those decisions.
Section
8
Tax
Matters.
Section
8.1
The
Parties hereby agree that effective
February
28,
2010,
at
11:59
p.m.,
RG has withdrawn as a Member of RDE and that Tigrent, after such
date is the sole member of RDE. From and after such date, RG shall not be
allocated any items of income, loss or credit from the business or operations of
RDE.
Section
8.2
The
Parties acknowledge and agree that Tigrent has
served as
the Tax Matters Member in connection with RDE. The
Tax
Matters
Member
was and is authorized and empowered to act for and represent RDE and each of its
members before the Internal Revenue Service in any audit or examination of any
RDE tax return and before any court selected by the Tax Matters Member for
judicial review of any adjustment assessed by the Internal Revenue Service
("IRS"),
The Parties specifically acknowledge that the Tax Matters Member shall be
liable to RG for any loss, damage, liability or expense suffered by RG on
account of any failure or action taken or omitted to be taken by the Tax Matters
Member in his or her capacity as
"Tax
Matters
Member"
or in the preparation of tax returns, if the Tax Matters Member
has not discharged his or her duties as
"Tax
Matters Member"
in good faith and in the best interest of RG and RDE. All
reasonable out-of-pocket expenses incurred by the Tax Matters Member in his or
her capacity as such shall be considered expenses of RDE for which the Tax
Matters Member shall be entitled to full reimbursement. No reimbursement shall
be due or owing from RG in connection with Tigrent acting as a Tax Matters
Member. Nothing in this
Section
1.2
shall limit the ability of the Members to take any action in their
individual capacity relating to tax audit matters that is left to the
determination of an individual member under
Code
Sections
6222-6232.
Section
8.3
Tax
Returns/Representations and Warranties.
Tigrent
and the
Tax Matters Member hereby represent and warrant to RG that:
Section
8.3.1
RDE has filed or
caused to be filed (on a timely
basis
since
2006)
all federal, state and local income, employment and other tax returns
("Tax
Returns")
that are or were required to be filed by or with respect to the
business and operations of RDE pursuant to applicable state, local and federal
laws
("Legal
Requirements").
Tigrent and the Tax Matters Member have delivered to RDE true and correct
copies of all federal and state income Tax Returns filed since
2006.
RDE has paid, or made provision for the payment of, all taxes that have
or may have become due by RDE pursuant to the Tax Returns or otherwise
("Taxes"),
or pursuant to any assessment received by RDE and Tigrent, except such
Taxes, if any, which are being contested in good faith and as to for which
adequate reserves (determined in accordance with GAAP) have been provided and
have provided true, correct and accurate
Form
K1
s
to its members;
Section 8.3.2
The United States
federal and state income Tax
Returns
of RDE subject to the Taxes have been audited by the IRS or are closed by the
applicable statute of limitations for federal tax purposes for all taxable years
through
2005.
No audits
are being contested as of the date hereof. Tigrent and the Tax Mattes Member
have not been given any notice of any audit or adjustments to the United States
federal income or state Tax Returns filed by RDE and
RDE has
not given or been requested to give waivers or extensions (or is or would be
subject to a waiver or extension given by any other person) of any statute of
limitations relating to the payment of taxes of RDE or for which RDE may be
liable;
Section
8.3.3
There exists no
proposed tax assessment against
RDE. No
consent to the application of
Section
341(0(2) of the
Internal
Revenue Code
has been filed with respect to any property or assets held,
acquired, or to be acquired by RDE. All taxes that RDE is or was required by
Legal Requirements to withhold or collect have been duly withheld or collected
and, to the extent required, have been paid to the proper governmental body or
other person;
Section
8.3.4
All Tax Returns
filed by RDE are true, correct,
and
complete other than federal and state amended returns for
2007
to be filed;
Section
8.3.5
As of the end of
2008,
RG's tax capital account
was
($2,142,240)
of which
($565,938)
resulted from tax losses from operations, which losses were suspended for
tax purposes because of the at-risk provisions of the IRC
("Suspended
Losses"), $1,576,302
was a withdrawal or distribution in
2008
for which no income was allocated to RG as a result of such withdrawal or
distribution;
Section
8.3.6
As
of the end of
2009
for the period commencing
January
1, 2009
and ending
December
31, 2009 ("2009 Tax
Period"),
RG's tax capital account is estimated to be
($2,398,405)
of which an additional
($0)
resulted from losses from operations, which losses were suspended for tax
purposes because of the at-risk provisions of the IRC and
$256,165
was a withdrawal or distribution in
2009
for which no income was allocated to RG as a result of such withdrawal or
distribution; and
Section
8.3.7
As of
February
28, 2010
for the
period
commencing
January
1, 2010
and ending
February
28, 2010 ("2010
Stub
Period"),
RG's tax capital account immediately prior to the redemption of
its units is estimated to be
($1,832,467)
of which the
$565,938
increase resulted from a reallocation of income to restore the full
amount of tax losses previously allocated to RG that were greater than the
member's at-risk basis. RG has no obligation to restore the negative capital
account in RDE.
Section
8.4
Notwithstanding
the foregoing:
Section
8.4.1
The
parties hereto acknowledge that no
allocations
of taxable income, gain and loss from RDE on
Form
K-1(s)
shall be
made to RG after the
2010
Stub Period. No taxable income or
gain
shall be allocated to RG from RDE for the
2009
Tax
Period and
for the
2010
Stub
Period except in connection with any: (i) failure to
restore
RG's capital account or make up a deficit in its capital account,
or
(ii)
income
recognized as a result of any curative or remedial
allocations
under
Internal
Revenue Code Regulations 1.7043(c)(1) and 1.704-3(d).
Notwithstanding
the forgoing, if any such
allocations
of taxable income or gain, are made for the
2009
Tax
Period,
the
2010
Stub
Period or pursuant to any amended return for
any prior
period, which income or gain exceeds the suspended losses
of RG as
of the end of the Stub Period, or thereafter, Tigrent shall
remit to
RG, upon issuance of the
K-1(s),
the
amount of any tax
liabilities
(including tax, interest or penalty) incurred by RG for such
period,
based upon a presumed
45%
combined
federal and state
income
tax rate. Any and all other items of income or gain, other than
the
qualified income offset, for RDE for the
2009
Tax
Period and for
the
2010
Stub
Period, and thereafter, shall be allocated to Tigrent.
With
respect to the
2009
Net
Taxable Income (Loss) allocated to RG,
such
allocation shall be made by
September
15, 2010
and with
respect to the
2010
Stub
Period Taxable Income (Loss) allocated to
RG, such
allocation shall be made by
November
15, 2010.
Section
8.4.2
RG
shall have the right to review, comment and
approve
(such approval shall not be unreasonably withheld) the
Form
1065
and on all
Form
K-is
in which any income or loss from RDE is allocated to RG
10
business days
before they are issued for the
2009
Tax Period and for the
2010
Stub Period. Also, RG shall have the right to review, comment and approve
(such approval shall not be unreasonably withheld) on all amended
Form
K-1s,
or amended tax returns, for any prior tax years in which RG is
allocated income, loss or gain from RDE
10
business days
before they are issued. If RG shall disagree with and
Form
1065, Schedule K-1s,
or amendments thereto, it shall notify the Tax
Matters Member and Tigrent of such disagreement in writing within
30
days
after delivery of the
Schedule
K-1s, Form 1065
or amendments thereto, which notice shall set forth in
reasonable detail the particulars of such disagreement. If RG fails to provide
such a notice of disagreement within such
30
-day
period, then RG shall be deemed to have accepted the
Schedule
K-is, Form 1065
or amendments thereto and the
Schedule
K-1s, Form 1065
or amendments thereto delivered by the Tax Matters Member
and Tigrent shall be final, binding and conclusive for all purposes hereunder.
If any such notice of disagreement is timely provided by RG, then the Tax
Matters Member, RG and Tigrent shall use their reasonable best efforts for a
period of
30
days
(or such longer period as they may mutually agree) to resolve any
disagreements with respect to the
Schedule
K-1s, Form 1065
or amendments thereto.
If,
at the end of such period, they are unable to
resolve
such disagreements, then the division of McGladrey & Pullen, UP responsible
for, and familiar with, preparing tax returns for corporations and other
entities (or such other independent accounting firm of recognized national or
regional standing as may be mutually selected by the Tax Matters Member, RG and
Tigrent) (the
"Tax
Firm")
shall resolve any remaining disagreements relating to the
Schedule
K-1s, Form 1065
or amendments thereto. The Tax Firm shall determine, as
promptly as practicable, but in any event within
60
days
of the date on which such dispute is referred to the Tax Firm, based
solely on written submissions forwarded by the Tax Matters Member, RG and
Tigrent to the Tax Firm within
10
business days
following the Tax Firm's engagement and such other
information that the Tax Firm reasonably requests in order to resolve the issues
in such written submissions, whether and to what extent (if any) the
Schedule
K-1s, Form 1065
or amendments thereto require adjustment. The Tax Matters
Member and Tigrent shall provide the Tax Firm access to the employees, books and
records of RDE to the extent necessary or requested by the Tax Firm for the
purpose of the Tax Firm making its determination. The determination of the Tax
Firm shall be final, conclusive and binding on the
parties.
Section
8.4.3
Tigrent and the Tax
Matters Member shall
provide
to RG, within
15
business days
after receipt by Tigrent and the Tax Matters Member, copies
of all IRS notices or adjustments relating to RDE. In addition, except as may be
prohibited by applicable law, Tigrent, the Tax Matters Member and RG agree to
make available to the other at the requesting party's sole expense any of the
RDE's records in the non-requesting party's custody or control for the purpose
of preparing any tax return or preparing for or defending any tax related
examination of the requesting party by any governmental authority. The party
requesting such record shall reimburse the non-requesting party for
out-of-pocket costs and expenses incurred by the non-requesting party. The
non-requesting party shall afford access to records during normal business hours
and upon not less than
5
business days
prior request, shall be subject to such reasonable
limitations as the non-requesting party may impose to delete competitively
sensitive information and shall not extend to any information subject to a claim
of privilege unless expressly waived by the party entitled to claim the
privilege. Access to records pursuant to this
Subsection
1.4.3
shall be subject to the confidentiality provisions of
Section
1.4.4.
The Parties shall make such requests set forth above pursuant to
the notice provisions set forth in the Definitive Settlement
Agreement.
Section
8.4.4
The
Parties agree as follows:
(a)
with respect to
tax
returns not yet filed with the IRS or any state relating to the
2009
Tax
Period and for the
2010
Stub Period, the Parties will file their returns consistent with
K-1s
prepared by Ehrhardt Keefe Steiner & Hottman PC, which are consistent
with the terms and conditions of this Agreement, and will not take positions
with the IRS or state tax authorities which are inconsistent with such
K-1s
(this assumes that any differences between the returns and drafts
provided are agreed to by the parties), and
(b)
with respect to tax returns filed for tax years prior to the
2009
Tax Period, the Parties will not take any positions with the IRS or state
tax authorities which are inconsistent with the
Form
K-1s
filed for the Companies for those years. The Parties are aware of
the income tax consequences of the allocations made by this Agreement and the
economic impact of the allocations on the amounts receivable by them under this
Agreement. Each Party agrees not take a position on his, her or its own tax
return that is inconsistent with a position taken on the Company's tax return. A
Party's filing of a tax return containing such an inconsistent position shall
constitute a breach of this Agreement. Any Party breaching this Agreement shall
be required to hold each of the Companies and the other Parties harmless for,
from, and against any and all costs, liability and damages that they may incur
(including, but not limited to, incremental tax liability and attorneys' fees
and expenses) as a result of such breach, but net of any tax benefit inuring to
the Indemnified Party.
Section
8.4.5
The
parties agree that no deferred gain shall be
allocated
to RG relating to assets described in
Section
751(a) of the
Internal
Revenue Code.
Section
9
Investment
Representations.
Section
9.1
RDE
and RG understand that the Shares have not been
registered
under the Securities Act. RDE and RG also understand that the Shares are being
offered and sold pursuant to an exemption from registration contained in the
Securities Act of
1933,
as amended (the
"Securities
Act"),
based in part upon the following representations of RDE and RG,
individually. RDE and RG hereby represent and warrant as
follows:
Section
9.1.1
RDE
and RG Bear Economic Risk.
RDE and RG
each have
substantial experience in evaluating and investing in the securities of
companies similar to Tigrent so that it is capable of evaluating the merits and
risks of its investment in Tigrent and each have the capacity to protect its own
interests. RDE and RG must each bear the economic risk of this investment
indefinitely unless the equity securities are registered pursuant to the
Securities Act, or an exemption from registration is available. RDE and RG each
understand
that Tigrent has no present intention of registering the equity securities. RDE
and RG each also understand that there is no assurance that any exemption from
registration under the Securities Act will be available and that, even if
available, such exemption may not allow RDE or RG to transfer all or any portion
of the equity securities under the circumstances, in the amounts or at the times
RDE or RG might propose.
Section
9.1.2
Acquisition
for Own Account.
RDE and RG are
each
acquiring the equity securities for their own account for investment only, and
not with a view towards their distribution.
Section
9.1.3
RDE
and RG Can Protect Their Interest.
RDE and
RG each
represent that by reason of its, or of its management's, business or financial
experience, RDE and RG each have the capacity to protect its own interests in
connection with the transactions contemplated in this Agreement. Further, RDE
and RG each are aware of no publication of any advertisement in connection with
the transactions contemplated in this Agreement.
Section
9.1.4
Accredited
Investor.
RDE and RG each represent
that it
is indirectly wholly-owned, and controlled by, accredited
investors
within the meaning of Regulation D under the Securities Act.
Section
9.1.5
Company Information.
RDE and RG
each have
had an
opportunity to discuss Tigrent's business, management and financial affairs with
directors, officers and management of Tigrent. RDe and RG each have also had the
opportunity to ask questions of and receive answers from, Tigrent and its
management regarding the terms and conditions of this
investment.
Section
9.1.6
Rule
144.
RDE and RG each acknowledge and
agree
that the equity securities are
"restricted
securities"
as defined in Rule 144 promulgated under the Securities Act
as in effect from time to time and must be held indefinitely unless they are
subsequently registered under the Securities Act or an exemption from such
registration is available. RDE and RG each have been advised or is aware of the
provisions of Rule 144, which permits limited resale of shares purchased in a
private placement subject to the satisfaction of certain conditions, including,
among other things: the availability of certain current public information about
Tigrent, the resale occurring following the required holding period under Rule
144 and the number of shares being sold during any
3-month
period not exceeding specified limitations.
Section
9.1.7
Residence.
RDE and RC each are Wyoming
limited
liability companies and their respective offices in which their investment
decisions were made are located at the following addresses:
1612 E.
Cape Coral Parkway
Cape
Coral, Florida 33904
4330
North Civic Center Plaza Suite 100
Scottsdale,
Arizona 85251
Section
10
Miscellaneous
Terms.
Section
10.1
Additional
Representations of the Parties.
Each of the
Parties
hereby represent and warrant that :
Section
10.1.1
Due
Authorization and Execution.
The
execution,
delivery and performance of this Agreement and of any other documents
contemplated by this Agreement to which it is a party, and the consummation of
the transactions contemplated hereby and thereby, have been duly authorized, and
each of and all such agreements have been duly executed and when delivered by
it, will constitute the valid and binding obligations of such
party.
Section
10.1.2
No
Violation of Existing Agreements or Laws.
Neither the execution, delivery
or performance of this Agreement nor the consummation of the transactions
contemplated hereby will violate, conflict with or require any notice or consent
under any certificate of incorporation or bylaws, or articles of organization or
operating agreement, if applicable, or any applicable law or statute or any
agreement or obligation by which such Party is bound.
Section
10.2
Indemnification.
Each of the Parties shall indemnify
and hold
harmless the other, and the other's affiliates, for, from and against any loss,
cost, damages and expenses arising from the party's breach of any statute,
regulation, ordinance or other law in connection with the performance of its
duties and obligations assumed herein. Notwithstanding the foregoing, this
Section
10.2
will not apply to a Party's performance of its obligations pursuant
to the other agreements contemplated by this Agreement, which agreements are to
be governed exclusively by any indemnification provisions found in such other
agreements.
Section
10.3
Further
Assurances.
Each of the Parties will, from time-
to-time,
execute, acknowledge, and deliver, or cause to be executed, acknowledged, and
delivered, such further instruments as may be reasonably required for the
carrying out of the intention of or facilitating the performance of this
Agreement.
Section
10.4
Press
Release.
The Parties agree to issue the joint press
release
in the form of
Exhibit
G
attached hereto.
Section
10.5
Assignment
of Domain Name.
Tigrent shall assign to
Rich Dad
the
"Rich
Dad Education"
domain
name as provided in
Exhibit
H.
Section
10.6
Successors
and Assigns.
This Agreement shall be
binding
on and inure to the benefit of the successors, heirs, representatives, or
assigns of the Parties.
Section
10.7
No
Admission of Wrongdoing.
This Agreement does not
constitute
an admission that any of the Parties or any other person or entity violated any
local, state, or federal ordinance, regulation, ruling, statute, rule of
decision, or principle of common law, or that any of the Parties or any other
person or entity engaged in any improper or unlawful conduct or wrongdoing. By
entering into this Agreement, no Party admits any liability or wrongdoing to
another Party, nor shall this Agreement be considered as an admission of
liability, nor shall any Party characterize this Agreement as an admission of
liability.
Section
10.8
Severability.
The Parties have fully negotiated all of the
provisions
of this Agreement. In the event there is litigation involving this Agreement and
the court concludes that provisions in this Agreement are unenforceable for
whatever reason, the court shall have the authority to modify the provisions to
make said provisions enforceable, if possible, as set forth in this Agreement or
otherwise. Further, the unenforceability or invalidity of any provision shall
not affect the enforceability of the other provisions.
Section
10.9
Voluntary
and Knowing Agreement.
The Parties enter
into this
negotiated agreement freely and voluntarily with full and complete knowledge of
the meaning and legal significance of the terms of this Agreement. The Parties
have had an opportunity to discuss each provision of this Agreement with
independent legal counsel and the terms are fully understood and voluntarily
accepted by each of them.
Section
10.10
Choice
of Law.
This Agreement and the rights and obligations of the Parties
hereunder shall be governed by and construed in accordance with the laws of the
State of Arizona, without respect to its conflict of law provisions. Each Party
hereto hereby irrevocably submits to the jurisdiction of any United States
District Court or Maricopa County
Superior
Court sitting in Maricopa County, Arizona, and agrees that such courts shall be
the exclusive forums for the resolution of disputes between the Parties under
this Agreement. In the event of any dispute between the Parties regarding this
Agreement, the prevailing Party shall be entitled to collect attorneys' fees,
costs, and other expenses from the other Party or Parties to the
dispute.
Section
10.11
Entire
Agreement.
This Agreement, and the other agreements contemplated herein
as set forth
Exhibits
A
through
H,
represent and contain the entire Agreement and understanding between the
Parties with respect to the subject matter hereof and supersedes any and all
prior and oral and written agreements and understandings with respect to the
subject matter hereof. No inducement, representation, warranty, condition,
understanding or agreement of any kind with respect to the subject matter hereof
shall be relied upon by the Parties unless expressly set forth herein. This
Agreement may not be amended or modified except by an agreement in writing
signed by the Party against whom the enforcement of such modification is
sought.
Section
10.12
Headings.
The descriptive headings of the paragraphs and subparagraphs of this Agreement
are intended for convenience only, and do not constitute parts of this
Agreement.
Section
10.13
Counterparts.
This Agreement may be executed simultaneously in
2
or more counterparts, each of which will be deemed an original, but all
of which together will constitute one and the same
instrument.
Section
10.14
Compliance
with Applicable Laws.
Each of the parties hereto will use reasonable
efforts to comply with all applicable federal and state laws, rules and
regulations.
Section
10.15
Notice.
All
notices or other communication concerning this Agreement shall be provided, in
writing, to the address below. Notice
shall be
deemed received:
(a)
when delivered,
if hand
delivery;
(b)
upon
return
receipt,
if sent
certified mail with return receipt;
(c)
upon
confirmation
of
successful delivery, if by facsimile transmission;
(d)
3
business
days
after
mailing, if sent regular mail. A Party may change notice
address
information by delivering a notice with such information in
compliance
with this
Section
10.15.
Section
10.16
Notice
Addresses:
To Rich
Dad:
Rich Dad
Operating Company, LLC
Attention:
Neil R. Dube, General Counsel
4330
North Civic Center Plaza Suite 101
Scottsdale,
Arizona 85251
Facsimile:
(480) 348-1439
With a copy
to:
Charles
W. Lotzar
Lotzar
Law Firm, P.C.
6263
North Scottsdale Road, Suite 216
Scottsdale,
Arizona 85250
Facsimile:
(480) 905-0321
To
Tigrent:
Tigrent
Inc.
Attention;
James E. May, Chief Administration Officer and General Counsel
1612 E.
Cape Coral Parkway
Cape
Coral, Florida 33904
Facsimile:
(239) 540-6501
Section
10.17
Survival.
Sections 1 - 4,
inclusive and
Sections
6 - 10,
inclusive of this Agreement and any other provisions which in
accordance with its terms is intended to survive this Agreement will survive and
shall continue in full force and effect thereafter.
[SIGNATURES
APPEAR ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF,
the
undersigned have caused the Parties hereto to enter into this Agreement
effective the date first shown above.
|
Rich
Global, LLC,
a
Wyoming limited liability company
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Tigrent
Inc.,
a Colorado corporation
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By:
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/s/ Michael
Sullivan
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By:
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/s/ Steven C.
Barre
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Michael
Sullivan
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Steven C.
Barre
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Director of
Operations
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Interim Chief
Executive Officer
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Rich Dad Operating Company,
LLC,
a Nevada
limited liability company
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Rich
Dad Education, LLC,
a
Wyoming limited liability company
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By:
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/s/ Michael
Sullivan
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By: Tigrent Inc., a
Colorado corporation
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Michael
Sullivan
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Its:
Managing Member
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Director of
Operations
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By:
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/s/ Steven C.
Barre
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Steven C.
Barre
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Interim Chief
Executive Officer
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Exhibit
A
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Form
of Registration Rights Agreement
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Exhibit
B
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Form
of Termination Agreement for RDE Administrative Services
Agreement
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Exhibit
C
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Form
of Termination Agreement for Tigrent License Agreement
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Exhibit
D
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Form
of Termination Agreement for RG License Agreement
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Exhibit
E
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Form
of
2010
License
Agreement
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Exhibit
F
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Form
of Cash Collateral and Escrow Agreement
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Exhibit
G
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Form
of Joint Press Release
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Exhibit
H
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Form
of Domain Name Assignment
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IN WITNESS WHEREOF,
the undersigned have caused the Parties hereto to enter into this
Agreement effective the date first shown above.
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Rich
Global, LLC,
a
Wyoming limited liability company
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Tigrent
Inc.,
a Colorado corporation
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By:
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/s/ Michael
Sullivan
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By:
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/s/ Steven C.
Barre
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|
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Michael
Sullivan
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|
|
Steven C.
Barre
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|
|
Director of
Operations
|
|
|
Interim Chief
Executive Officer
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|
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Rich Dad Operating Company,
LLC,
a Nevada
limited liability company
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Rich
Dad Education, LLC,
a
Wyoming limited liability company
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By:
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/s/ Michael
Sullivan
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By: Tigrent Inc., a
Colorado corporation
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Michael
Sullivan
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Its:
Managing Member
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Director of
Operations
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By:
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/s/ Steven C.
Barre
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Steven C.
Barre
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Interim Chief
Executive Officer
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List
of Exhibits
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Exhibit
A
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Form
of Registration Rights Agreement
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Exhibit
B
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Form
of Termination Agreement for RDE Administrative Services
Agreement
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Exhibit
C
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Form
of Termination Agreement for Tigrent License Agreement
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Exhibit
D
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Form
of Termination Agreement for RG License Agreement
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Exhibit
E
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Form
of
2010
License Agreement
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Exhibit
F
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Form
of Cash Collateral and Escrow Agreement
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Exhibit
G
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Form
of Joint Press Release
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Exhibit
H
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Form
of Domain Name Assignment
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EXHIBIT
C
REGISTRATION
RIGHTS AGREEMENT
THIS REGISTRATION
RIGHTS AGREEMENT
(this
"Agreement")
is made and entered into
as of
March 16, 2010,
by and among Tigrent Inc.,
a Colorado corporation (the
"Company"),
and
Rich Dad Education LLC, a Wyoming
limited liability company
("RDE"),
and Rich Global,
LLC, a Wyoming limited liability
company
("RG LLC"
and, together with RDE,
collectively
"RG").
This
Agreement is made pursuant to the Settlement Agreement and Release (the
"Settlement
Agreement"),
dated as of
March 16, 2010,
between the Company, RDE and RG LLC and Rich Dad Operating Company, LLC,
a Nevada limited liability company.
In
connection with the Settlement Agreement, the approximately
1,290,000
shares of Common Stock (as defined below) of the Company will be issued
to RDE and immediately thereafter will be transferred to RG LLC.
Now, THEREFORE, IN
CONSIDERATION
of the mutual covenants contained in this Agreement, and
for other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the Company and each of the Purchasers agree as
follows:
1.
Definitions.
Capitalized terms used and not otherwise defined herein that are
defined
in the Settlement Agreement shall have the meanings given such terms in the
Settlement Agreement. As used in this Agreement, the following terms shall have
the following meanings:
"
Affiliate
"
means, with respect to any
person, any other person which directly or indirectly controls, is controlled
by, or is under common control with, such person.
"
Business Day
"
means a day, other than a
Saturday or Sunday, on which banks in New York City are open for the general
transaction of business.
"
Common Stock
"
means the common stock of the Company.
"Effective Date"
is
March 16, 2010.
"
Exchange Act
"
means the
Securities Exchange
Act of 1934,
as amended, and the rules and regulations promulgated
thereunder.
"
Register," "registered"
and
"registration
"
refers to a registration made by preparing and filing a registration
statement or similar document in compliance with the Securities Act, and the
declaration or ordering of effectiveness of such registration statement or
document.
"Registration Expenses"
shall mean all
expenses incurred by the Company in complying with
Sections 2
and
3
hereof, including, without limitation,
all registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company, reasonable fees and disbursements (not to exceed
$20,000)
of a
single special counsel for RG LLC, and blue sky fees and expenses.
"Rule 144"
means
Rule 144
promulgated by the SEC pursuant
to the Securities Act, as such rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the SEC having substantially the
same effect as such rule.
"SEC"
means the Securities and Exchange
Commission.
"Securities Act"
means the
Securities Act of 1933
, as amended, and
the rules and regulations promulgated thereunder.
"Selling Expenses"
shall mean all underwriting discounts
and selling commissions
applicable to a sale of Shares pursuant
to
Section 3(a).
"Shares"
means the shares of common
stock of the Company issued or issuable to RG LLC pursuant to the Settlement
Agreement or otherwise owned by RG LLC.
"Special Registration Statement"
shall
mean
(i)
a registration statement
relating to any employee benefit plan or
(ii)
with respect to any corporate
reorganization or transaction under
Rule
145
of the Securities
Act
,
including any registration statements related to the issuance or resale of
securities issued in such a transaction or
(iii)
a registration related to the
offer and sale of debt securities and/or the stock issued upon conversion
thereof.
"Suspension"
shall have the meaning set forth in
Section 6(a).
"Suspension Notice"
shall have the meaning set forth
in
Section 6(a).
"Violation"
shall have the meaning set forth
in
Section 8(a).
2.
Demand
Registration
.
If the Company is a reporting company under
the
Exchange
Act and under
Section
9(b)
hereunder, RG LLC shall be entitled to a 1-time right to cause
the Company to file
a
registration statement with the SEC with regard to some or all of the
Shares on or after
January
1, 2011
,
subject to the following terms and conditions. In the
event that, on or after
January
1, 2011
,
the Company shall receive from RG LLC a written request
that the Company effect a registration under the Securities Act with the SEC,
the Company will:
(a)
As soon as
practicable, effect such registration as may be so requested and
as would permit or facilitate the sale
and distribution of the Shares subject to such written
request;
provided, however,
that the Company shall not
be obligated to effect any such
registration, qualification or
compliance pursuant to this
Section
2
:
(i)
if within
20 days
of receipt
of a written request from RG LLC
pursuant
to this
Section
2,
the Company gives notice to RG LLC of the Company's intention to make
a public offering of its common stock within
30
days
,
other than pursuant to a Special Registration Statement;
(ii)
if the Company
shall furnish to RG LLC a certificate signed by the
Chief
Executive Officer of the Company stating that, in the good faith judgment of
such officer,
it would
be seriously detrimental to the Company and its stockholders for such
registration to be
effected
at such time, in which event the Company shall have the right to defer the
filing of the registration statement for a period of not more than
90 days
after receipt of the request of RG
LLC under this
Section 2
;
provided,
that such right to delay a request shall be exercised by the Company not
more than once in any
12-month
period.
(b)
Subject to the foregoing, the Company
shall file a registration statement
with the SEC covering the Shares
subject to such written request as soon as practicable after
receipt of the request of RG LLC, but
shall not be required to do so prior to
January
1, 2011
.
(c)
The Company shall use
all reasonable efforts to cause the registration statement filed pursuant to
this
Section
2
to become effective, and to keep such registration statement
effective for up to
90
days
or, if earlier, until RG has completed the distribution
related thereto;
provided, however,
that in the event that the Company shall exercise its right to delay or
suspend the filing or effectiveness of such registration statement pursuant to
Section
6(a),
the applicable time period during which the registration
statement is to remain effective shall be extended by a period of time equal to
the duration of the period of such suspension.
(d)
Termination
of Demand Registration Rights
.
All registration rights granted
under this
Section
2
shall terminate and be of no further force and effect on the
3rd
anniversary of the Effective Date.
3.
Piggyback Registrations
.
The Company
shall notify RG LLC in writing at least
10 days
prior
to the filing of a
registration statement under the Securities Act for purposes of a public
offering of securities of the Company or upon a registration of any shares of
stock of another shareholder of the Company by demand registration, piggy back
rights, or otherwise (excluding a Special Registration Statement) and will
afford RG LLC an opportunity to include in such registration statement all or
part of the Shares held by RG LLC. In the event that RG LLC desires to include
in any such registration statement all or any part of the Shares held by it, it
shall, within
10 days
after the above-described notice
from the Company, so notify the Company in writing. Such notice shall state the
intended method of disposition of the Shares by RG LLC. If RG LLC decides not to
include all of the Shares in a registration statement filed by the Company, RG
LLC shall nevertheless continue to have the right to include any remaining
Shares in any subsequent registration statement or registration statements as
may be filed by the Company with respect to offerings of its securities, all
upon the terms and conditions set forth herein.
(a)
Underwriting
.
If the registration statement under
which the Company
gives
notice pursuant to this
Section 3
is for an underwritten offering, the Company shall so advise RG LLC. In
such event, RG LLC's right to be included in a registration pursuant to this
Section 3
shall be conditioned upon such RG LLC's participation in such
underwriting and the inclusion of any Shares to be sold by RG LLC in the
underwriting to the extent provided herein. In the event that RG LLC proposes to
distribute any Shares through such underwriting, it shall enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting by the Company. Notwithstanding any other
provision of this Agreement, if the underwriter determines in good faith that
marketing factors require a limitation of the number of shares to be
underwritten, the number of shares that may be sold by selling stockholders in
the underwriting shall be allocated first, to any stockholders of the Company
with
registration rights existing at the time of such offering on a
pro
rata
basis, but only to the extent that the Company is contractually
obligated to include the shares of common stock held by such stockholders in the
registration before including any shares held by RG LLC in the registration;
second to RG LLC on a
pro
rata
basis with any stockholders of the Company with registration rights
at the time of such offering not included in the
1
s
t
category; and
3
rd
,
on a
pro
rata
basis to any stockholders of the Company that are not included in the
first and second category. If RG LLC disapproves of the terms of any such
underwriting, RG LLC may elect to withdraw therefrom by written notice to the
Company and the underwriter, delivered at least
10 days
prior to the effective date of
the registration statement. Any Shares excluded or withdrawn from such
underwriting shall be excluded and withdrawn from the
registration.
(b)
Right to Terminate Registration.
The Company shall have the right to
terminate
or withdraw any registration initiated by it pursuant to this
Section 3
prior to the
effectiveness of such registration whether or not RG LLC has elected to include
Shares in such registration. The Registration Expenses of such withdrawn
registration shall be borne by the Company in accordance with
Section 4
hereof.
(c)
Termination of Piggyback Registration
Rights.
All registration rights
granted
under this
Section 3
shall terminate and be of no further force and effect on the
3rd
anniversary of the
Effective Date.
4.
Expenses of
Registration.
Except as specifically provided herein, all
Registration
Expenses incurred in connection with any registration pursuant to
Sections 2
or
3
herein shall be borne by the
Company. All Selling Expenses incurred in connection with any registrations
thereunder shall be borne by the Company and the holders of the securities so
sold
pro rata
on the basis of the number of shares so sold.
5.
Obligations of the Company.
Whenever required to effect the registration of
any
Shares, the Company shall, as expeditiously as reasonably possible:
(a)
Subject
to
Section 2(c),
prepare
and file with the SEC a registration
statement
with respect to such Shares and use its commercially reasonable efforts to cause
such registration statement to become effective as soon as
practicable.
(b)
Subject
to
Sections 2(c)
and
5(a),
use its
commercially reasonable efforts
to
prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement for a period not exceeding the earlier of
(i)
the
3rd
anniversary of the date
hereof, or
(ii)
such
time as all of the Shares held by RG LLC have been sold.
(c)
Furnish
to RG LLC such number of copies of a prospectus, including a
preliminary
prospectus, in conformity with the requirements of the Securities Act, and such
other documents as RG may reasonably request in order to facilitate the
disposition of Shares.
(d)
Use its commercially
reasonable efforts to register and qualify the
securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by RG
LLC.
(e)
Advise RG LLC
promptly after it shall receive notice or obtain knowledge
of the
issuance of any stop order by the SEC delaying or suspending the effectiveness
of a registration statement that includes the Shares or of the initiation of any
proceeding for that purpose; and it will promptly use its commercially
reasonable efforts to prevent the issuance of any stop order or to obtain its
withdrawal at the earliest possible moment if such stop order should be
issued.
(f)
In the event of any underwritten public offering, enter into and perform
its
obligations
under an underwriting agreement, in usual and customary form, with the managing
underwriter(s) of such offering. If that RG LLC participates in such
underwriting, then RG LLC shall also enter into and perform its obligations
under such an agreement.
(g)
Notify RG LLC at any
time when a prospectus relating thereto is required to be delivered under the
Securities Act of the happening of any event as a result of which the prospectus
included in such 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
not
misleading in the light of the circumstances then existing.
(h)
Cause all such Shares registered under such registration statement to be
listed or quoted on each securities exchange on which the Common Stock of the
Company is then listed or quoted.
(i)
Use its commercially reasonable efforts to furnish, on the date that such
Shares
are delivered to the underwriters for sale, if such securities are being sold
through underwriters,
(i)
an opinion, dated as of such date, of the counsel representing the
Company for the purposes of such registration, in form and substance as is
customarily given to underwriters in an underwritten public offering, addressed
to the underwriters, if any, and
(ii)
a letter dated as of such
date, from the independent registered public accountants of the Company, in form
and substance as is customarily given by independent registered public
accountants to underwriters in an underwritten public offering addressed to the
underwriters, if any.
6.
Obligations
of RG LLC.
(a)
In the event: (i) of
any request by the SEC or any other federal or state
governmental
authority during the period of effectiveness of a registration statement filed
pursuant to
Sections 2
and 3 for amendments or supplements to such registration statement or
related prospectus or for additional information so that such registration
statement will not contain an 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 not misleading or otherwise fail to comply with the
applicable rules and regulations of the federal securities laws;
(ii)
of the issuance by the
SEC or any other federal or state governmental authority of any stop order
suspending the effectiveness of such registration statement or the initiation of
any proceedings for that purpose;
(iii)
of the receipt by the
Company of any notification with respect to the suspension of the
qualification
or exemption from qualification of any of the Shares for sale in any
jurisdiction or the initiation of any proceeding for such purpose; (iv) of any
event or circumstance that, considering the advice of counsel, the Company
reasonably believes necessitates the making of any changes in such registration
statement or related prospectus, or any document incorporated or deemed to be
incorporated therein by reference, so that, in the case of such registration
statement, it will not contain any untrue statement of a material fact or any
omission to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and that in the case of a related
prospectus, it will not contain any untrue statement of a material fact or any
omission to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; or
(v)
that the Company reasonably believes, considering the advice of counsel,
that the Company may, in the absence of a suspension described hereunder, be
required under state or federal securities laws to disclose any corporate
development, the disclosure of which could reasonably be expected to have a
material adverse effect upon the Company, its stockholders, a potentially
material transaction or event involving the Company, or any negotiations,
discussions or proposals directly relating thereto; then the Company shall
deliver
a
written notice (a
"Suspension Notice")
to RG LLC to the
effect of the foregoing and, upon receipt of such Suspension Notice, RG LLC will
refrain from selling any Shares pursuant to such registration statement (a
"Suspension"
)
until RG LLC receives
copies of a supplemented or amended prospectus prepared and filed by the Company
or until RG LLC is advised in writing by the Company that the current prospectus
may be used and RG LLC has received copies of any additional or supplemental
filings that are incorporated or deemed incorporated by reference in any such
prospectus. In the event of a Suspension, the Company will use its commercially
reasonable efforts to cause the use of the prospectus so suspended to be resumed
as soon as reasonably practicable after delivery of a Suspension Notice to RG
LLC.
(b)
Provided
that a Suspension is not then in effect, RG
LLC
will comply with
the
prospectus delivery requirements of the Securities Act as applicable to it
(unless an exemption therefrom is available) in connection with sales of the
Shares pursuant to the registration statement and shall sell the Shares only in
accordance with a method of distribution described in the registration
statement.
7.
Furnishing
Information.
(a)
It
shall be a condition precedent to the obligations of the Company to take
any
action pursuant to
Sections
2
or
3
that RG LLC shall furnish to the Company such information regarding
itself, the Shares held by it and the intended method of disposition of such
Shares as
shall
be required to effect the registration of such
Shares.
8.
Indemnification.
In the
event any Shares are included in a registration
statement
pursuant to
Sections
2
or
3:
(a)
To the
extent permitted by law, the Company will indemnify and hold
harmless
RG LLC, the managers, members, employees and agents of RG LLC, any underwriter
(as defined in the Securities Act) for RG LLC and each person, if any, who
controls RG LLC or the underwriter within the meaning of the Securities Act or
the Exchange Act, for, from, and 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,
omissions or violations (collectively a
"Violation"
)
by the Company:
(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,
(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, or
(iii)
any violation or alleged violation by the Company of the Securities Act,
the Exchange Act, any state securities law or any rule or regulation promulgated
under the Securities Act, the Exchange Act or any state securities law in
connection with the offering covered by such registration statement; and the
Company will pay as incurred to RG LLC, or such officer, director, underwriter
or controlling person of RG LLC, 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
Section
8(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 the Company, which consent shall not be unreasonably withheld or
delayed, nor shall the Company 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 RG LLC, or such officer, director, or controlling person of RG
LLC.
(b)
To the extent
permitted by law, RG LLC will, if the Shares held by RG
LLC are
included in the securities as to which such registration qualifications or
compliance is being effected, indemnify and hold harmless the Company, each of
its directors, its officers and each person, if any, who controls the Company
within the meaning of the Securities Act, any underwriter and any other
stockholder selling securities under such registration statement or any of such
other stockholder's partners, directors or officers or any person who controls
such stockholder, for, from, and against any losses, claims, damages or
liabilities (joint or several) to which the Company or any such director,
officer, controlling person, underwriter or other such stockholder, or partner,
director, officer or controlling person of such other stockholder 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 thereto) arise out of or are based upon any Violation, in each case to
the extent (and only to the extent) that such Violation occurs in reliance upon
and in conformity with written information furnished by RG LLC under an
instrument duly executed by RG LLC and stated to be specifically for use in
connection with such registration; and RG LLC will pay as incurred any legal or
other expenses reasonably incurred by the Company or any such director, officer,
controlling person, underwriter or other stockholder, or partner, officer,
director or controlling person of such other stockholder in connection with
investigating or defending any such loss, claim, damage, liability or action if
it is judicially determined that there was such a Violation;
provided, however,
that the indemnity agreement contained in this
Section 8(b)
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 RG LLC, which
consent shall not be unreasonably withheld;
provided further,
that in no event shall any indemnity under this
Section 8
exceed the net
proceeds from the offering received by RG LLC.
(c)
Promptly
after receipt by an indemnified party under this
Section
8
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
8,
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 fees
and
expenses
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
differing
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
8,
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
8.
(d)
If
the indemnification provided for in this
Section
8
is held by a court of
competent
jurisdiction to be unavailable to an indemnified party with respect to any
losses, claims, damages or liabilities referred to herein, the indemnifying
party, in lieu of indemnifying such indemnified party thereunder, shall to the
extent permitted by applicable law contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the Violation(s) that resulted in such loss, claim, damage or
liability, as well as any other relevant equitable considerations. The relative
fault of the indemnifying party and of the indemnified party shall be determined
by a court of law by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission to state a material
fact relates to information supplied by the indemnifying party or by the
indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission;
provided,
that in no event shall any contribution by RG LLC hereunder exceed the
net proceeds from the offering received by RG LLC.
(e)
The
obligations of the Company and RG LLC under this
Section
8
shall
survive
completion of any offering of the Shares in a registration statement and the
termination of this agreement. No indemnifying party, in the defense of any such
claim or litigation, shall, except with the consent of each indemnified party,
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such indemnified party of a release from all liability in respect to such
claim or litigation.
9.
Securities
Representations; Rule 144 Reporting. Company represents,
warrants
and covenants to RG LLC as follows:
(a)
Company has
made all filings with SEC that it has been required to make
within
the past
2
years,
and will make all such filings, under the Securities Act and the
Exchange
Act
(collectively the
"Public Reports"
);
which are required by
the Exchange Act. Each of the Public Reports has complied and will comply with
the Securities Act and the Exchange Act in all material respects. None of the
Public Reports, as of their respective dates, has contained nor will contain any
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading.
(b)
With a view to
making available to RG LLC the benefits of
Rule 144
and
any other
rule or regulation of the SEC that may at any time permit RG LLC to sell the
Shares to the public without registration or pursuant to a registration
statement, the Company covenants and agrees to use its commercially reasonable
efforts to:
(a)
make and keep public
information regarding the Company available, as those terms are understood and
defined in
Ride
144,
until such time as all
the Shares have been sold;
(b)
file with the SEC in a timely manner all Public Reports and other
documents required of the Company under the Securities Act and the Exchange Act;
and
(c)
furnish to RG
LLC upon written request, as long as RG LLC owns any Shares,
(i)
a written statement by the Company that it
has complied with the reporting requirements of
Rule 144
and the Exchange Act,
(ii)
a copy of the
Company's most recent
Annual
Report on Form 10-K
or
Quarterly Report on Form 10-Q,
and
(iii)
such
other documents filed with the SEC as RG LLC may reasonably request in order to
avail itself of any rule or regulation of the SEC that permits the selling of
any Shares without registration.
10.
Miscellaneous.
(a)
Entire Agreement.
This
Agreement is intended by the parties as a final expression of their agreement
and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter, except for, and as
provided in the Settlement Agreement.
(b)
Amendment of Registration Rights.
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 RG LLC. Any amendment or waiver effected in accordance with this
Section 10(b)
shall be binding
upon RG LLC and the Company. By acceptance of any benefits under this Agreement,
RG LLC hereby agrees to be bound by the provisions hereunder.
(c)
Notices.
All notices or other
communication concerning this Agreement shall be provided, in writing, to the
address below. Notice shall be deemed received:
(a) when
delivered,
if hand delivery;
(b) upon return receipt,
if sent certified mail with return receipt;
(c) upon confirmation
of
successful delivery, if by facsimile transmission;
(d) 3 business days
after
mailing, if sent regular mail. A Party may change notice address infollnation by
delivering a notice with such information in compliance with this
paragraph 10.
Rich Dad
Operating Company, LLC
Attention:
Neil R. Dube, General Counsel
4330
North Civic Center Plaza Suite 101
Scottsdale,
Arizona 85251 Facsimile: (480) 348-1439
With
a copy to:
Charles
W. Lotzar
Lotzar
Law Firm, P.C.
6263
North Scottsdale Road, Suite 216
Scottsdale,
Arizona 85250
Facsimile:
(480) 905-0321
To
Tigrent:
Tigrent
Inc.
Attention:
James E. May, Chief Administration Officer and General Counsel
1612 E.
Cape Coral Parkway
Cape
Coral, Florida 33904
Facsimile:
(239) 540-6501
With
a copy to:
Cooley
Godward Kronish LLP
Attention:
Eric Tobias, Special Counsel
One
Freedom Square, Reston Town Center
11951
Freedom Drive
Reston,
Virginia 20190-5656
Facsimile:
(703) 456-8100
(d)
Successors
and Assigns.
This Agreement shall inure to the benefit of and
be
binding upon the successors and permitted assigns of each of the parties and
shall inure to the benefit of RG LLC. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement. The Company may not assign its rights or obligations
hereunder without the prior written consent of RG LLC (other than by merger or
consolidation or to an entity which acquires the Company including by way of
acquiring all or substantially all of the Company's assets). The rights of RG
LLC hereunder, including the right to have the Company register the Shares
pursuant to this Agreement, may not be assigned by RG LLC other than to an
Affiliate of RG LLC;
provided,
however,
that
(i)
RG LLC agrees in
writing with the transferee or assignee to assign such rights and related
obligations under this Agreement, and for the transferee or assignee to assume
such obligations, and a copy of such agreement is furnished to the Company
within a reasonable time after such assignment,
(ii)
the Company is, within
5
Business Days
of
such transfer or
assignment, furnished with written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being transferred or assigned, and
(iii)
at or before the time the Company
received the written notice contemplated by
clause
(ii)
of this sentence, the transferee or assignee agrees in writing with
the Company to be bound by all of the provisions contained herein.
Notwithstanding the foregoing, the Company consents to the assignment and
transfer of the Shares from RDE to RG LLC.
(e)
Execution and Counterparts.
This
Agreement may be executed in any
number of
counterparts, each of which when so executed shall be deemed to be an original
and, all of which taken together shall constitute one and the same Agreement and
shall become effective when counterparts have been signed by each party and
delivered to the other party, it being understood that both parties need not
sign the same counterpart. In the event that any signature is delivered by
facsimile transmission or by e-mail delivery of a
".pdf"
format data file, such signature
shall create a valid and binding obligation of the party executing (or on whose
behalf such signature is executed) with the same force and effect as if such
facsimile or
".pdf'
signature were the original
thereof.
(f
)
Governing Law.
This Agreement and the
rights and obligations of the
Parties
hereunder shall be governed by and construed in accordance with the laws of the
State of Arizona, without respect to its conflict of law provisions. Each Party
hereto hereby irrevocably submits to the jurisdiction of any United States
District Court or Maricopa County Superior Court sitting in Maricopa County,
Arizona, and agrees that such courts shall be the exclusive forums for the
resolution of disputes between the Parties under this Agreement. In the event of
any dispute between the Parties regarding this Agreement, the prevailing Party
shall be entitled to collect attorneys' fees, costs, and other expenses from the
other Party or Parties to the dispute.
(g)
Cumulative Remedies
.
The remedies
provided herein are cumulative and not exclusive of any remedies provided by
law.
(h)
Severability.
If any term, provision,
covenant or restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions set forth herein shall remain in
full force and effect and shall in no way be affected, impaired or invalidated,
and the parties hereto shall use their reasonable efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
(I)
Headings.
The headings in this Agreement
are for convenience of
reference
only and shall not limit or otherwise affect the meaning hereof.
(j)
Further Assurances.
The parties shall
execute and deliver all such further
instruments
and documents and take all such other actions as may reasonably be required to
carry out the transactions contemplated hereby and to evidence the fulfillment
of the agreements herein contained.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK,
SIGNATURE
PAGES TO FOLLOW]
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as
of the date first written above.
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TIGRENT, INC.
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a
Colorado corporation
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By:
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/s/
Steve
C. Barre
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Steve
C. Barre
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RICH DAD EDUCATION,
LLC,
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a
Wyoming limited liability company
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By:
Tigrent Inc., a Colorado corporation
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Its:
Managing Member
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By:
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/s/
Steve C. Barre
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Steve
C. Barre
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Interim
Chief Executive Officer
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RICH GLOBAL,
LLC,
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a
Wyoming limited liability company
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By:
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/s/ Michael
R. Sullivan
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Michael
R. Sullivan
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Director
of Operations
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