Exhibit
10.7
Settlement
Agreement, Release And
Amendment
to License Agreement
This
Settlement Agreement, Release and Amendment to License Agreement (“Agreement”) is made by and between (1) Tigrent
Inc., a Colorado corporation (“Tigrent”) on the one hand, and (2) Rich Dad Operating Company, LLC, a Nevada limited
liability company (“RDOC”), Robert Kiyosaki, in his individual capacity (“R. Kiyosaki”), Darren Weeks,
in his individual capacity (“Weeks”), and 1780341 Alberta Ltd., d/b/a Rich Dad:Global Entrepreneurs Organization
or Rich Dad GEO (“RD:GEO”) on the other hand. Tigrent, RDOC, R. Kiyosaki, Weeks and RD:GEO are collectively referred
to as the “Parties” and individually as a “Party.” This Agreement shall be effective as of April 22,
2014 (“Effective Date”) when executed by all Parties.
Recitals
A. RDOC
is the owner or licensee, for certain purposes, of valuable intellectual property relating to the Rich Dad name and brand developed
by R. Kiyosaki. In September 2013, RDOC and Tigrent entered a License Agreement (“License Agreement”) whereby,
among other privileges and obligations, RDOC granted Tigrent “the sole and exclusive right and license in and to the Licensed
Intellectual Property for the purpose of allowing [Tigrent] to (i) develop and create Educational Materials and (ii) conduct the
Business in the Territory by itself and through its subsidiaries and affiliates.” [Capitalized terms are defined in the
License Agreement.] A copy of the License Agreement is attached as Exhibit 1.
B. In
March 2014, Tigrent discovered what it believes are violations and infringements upon its rights under the License Agreement by
RDOC, R. Kiyosaki, Weeks and RD:GEO In connection with their creation or support of RD:GEO. On March 20, 2014, Tigrent’s
outside counsel delivered a letter ( the “Demand Letter”) to RDOC, R. Kiyosaki and Weeks relating to the alleged infringing
activities.
C. On
March 31, 2014 Tigrent filed a Verified Complaint against RDOC, R. Kiyosaki, Weeks, and RD:GEO in Arizona Superior Court, Maricopa
County, captioned Tigrent Inc. v. Rich Dad Operating Company, LLC et. al., Cause No. CV2014-003169 (“the State Court
Litigation”). In the State Court Litigation, Tigrent asserted claims for breach of License Agreement, breach of the implied
covenant of good faith and fair dealing, tortious interference with, License Agreement, tortious interference with business expectancy,
unfair competition and civil conspiracy. Also on March 31, 2014, Tigrent filed a Complaint against Weeks and RD:GEO in the United
States District Court for the District of Arizona, captioned Tigrent Inc. v. Weeks et. al., Cause No. 2:14-cv-00660-DGC
(“the Federal Court Litigation”). In the Federal Court Litigation, Tigrent asserted violations of 15 U.S.C. §
1114 and 15 U.S.C. § 1125(a) relating to Weeks’s and RD:GEO’s alleged infringement of Tigrent’s rights
to the Rich Dad-related trademarks.
D. RDOC,
R. Kiyosaki, Weeks, and RD:GEO have not answered or otherwise responded to the State Court Litigation or the Federal Court Litigation
but generally deny liability for the claims asserted.
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E. Tigrent,
on the one hand, and RDOC, R. Kiyosaki, Weeks and RD:GEO, on the other hand, without admitting any liability, have fully and finally
settled the disputes between them described above and have agreed to the terms set forth in this Agreement in full, complete and
final settlement of these disputes between them relating to the alleged infringement of Tigrent’s rights under the License
Agreement, the issues and events that are the subject of the Demand Letter, the State Court Litigation, and the Federal Court
Litigation.
NOW
THEREFORE, intending to be legally bound and in consideration of the obligations and promises set forth in this Agreement, the
Parties agree as follows:
1. Incorporation
of Recitals. The Parties affirm that the foregoing Recitals are true and correct, and are incorporated and made part of
this Agreement as though set forth in full in this paragraph.
2. Warranties
and Representations. Each Party expressly and severally represents and warrants:
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a.
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Such
Party is correctly described and named in this Agreement.
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b.
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Before
executing this Agreement, such Party became fully informed of the terms, contents, provisions, and effect of this Agreement.
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c.
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The
signatory to this Agreement signing on behalf of such Party is fully authorized and legally competent to execute this Agreement
as the legal, valid and binding act and deed of such Party, and is a duly authorized representative of such Party.
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d.
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This
Agreement is fully and forever binding on, and enforceable against, such Party in accordance with its terms.
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e.
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The
execution and delivery of this Agreement and any other documents, agreements or instruments executed or delivered by such Party
pursuant to this Agreement and the consummation of the transactions as provided for in this Agreement or contemplated by this
Agreement do not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any
material agreement or instrument to which such Party is a party or any provision of law, statute, rule or regulation applicable
to such Party or any judicial or administrative order or decree by which such Party is bound.
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f.
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The
claims released in this Agreement by such Party were and are, currently owned solely by such Party. All of such Party’s
claims are free and clear of any and all claims, liens or other encumbrances of any kind or nature, of any other person, and there
is no other person who could or should have asserted such claims or joined in any settlement or
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compromise
of such claims.
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g.
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Such
Party has not assigned, pledged or in any other manner sold, transferred or hypothecated any right, title, interest, cause of
action, or claim that arises out of or is provided to be released by such party pursuant to this Agreement.
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h.
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In
entering into and signing this Agreement, such Party has had the benefit of the advice of attorneys of such Party’s own
choosing, and enters into this Agreement freely by such Party’s own choosing and judgment, and without duress or other influence.
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i.
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Such
Party represents that it has not relied upon, and will not rely upon, any statements, acts or omissions by the other Party, other
than as set forth in this Agreement, in making its decision to enter into this Agreement.
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j.
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This
Agreement is duly executed by such Party with full knowledge and understanding of its terms and meaning, on such Party’s
own judgment and upon the advice of such Party’s attorneys and financial and tax advisors.
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Such
Party acknowledges that its foregoing representations are a material inducement to the other Parties to enter into this Agreement
3. RDOC,
R. Kiyosaki, Weeks and RD:GEO Agree Not
to
Infringe. In recognition of Tigrent’s valuable rights under the License Agreement,
the Parties agree as follows:
A. RDOC,
R. Kiyosaki, Weeks, and RD:GEO agree to honor and not in any way infringe upon Tigrent’s rights under the License Agreement,
as amended. Weeks also agrees to not in any way infringe upon Tigrent’s rights under the License Agreement, both individually
and in connection with Weeks’s “Fast Trade to Cash Flow” and “Wealth Community” ventures. This prohibition
against any infringement upon Tigrent’s rights under the License Agreement includes, but is not limited to, any further
use of the Rich Dad name, brand, trademarks and other Licensed Intellectual Property, or reference to or recognition of Weeks
as “Rich Dad Canada,” “Rich Dad in Canada,” or any similar title, designation or affiliation relating
to Rich Dad. However, Weeks can use the Rich Dad name, brand, trademarks and other Licensed Intellectual Property to promote a
Rich Dad Personality or Rich Dad Advisor for a live in-person event at which the Rich Dad Personality or Rich Dad Advisor is appearing.
B. RDOC
shall at all times cooperate fully with Tigrent to protect and prevent infringement of Tigrent’s rights under the License
Agreement, as amended..
4. Reimbursement
of Tigrent’s Attorneys’ Fees and Expenses. RDOC shall reimburse Tigrent for all attorneys’ fees
and expenses Tigrent incurred in connection
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with
seeking to enforce and prosecute its rights under the License Agreement in connection
with Tigrent’s Demand Letter, the State Court Litigation and the Federal Court
Litigation. Tigrent’s attorneys’ fees and expenses incurred in these matters
through March 31, 2014 total [***]. No later than three (3) business days after the Effective
Date of this Agreement, RDOC shall pay Tigrent this sum of [***] directly by wire transfer
to Tigrent’s counsel, Cohen Kennedy Dowd & Quigley, P.C. (“CKDQ”),
pursuant to wiring instructions to be separately provided by CKDQ to RDOC’s counsel.
Tigrent acknowledges that is has received RDOC check number [***] in the amount of [***]
in partial payment of the aforementioned [***]. RDOC shall also reimburse Tigrent for
the attorneys’ fees and expenses that Tigrent incurs after March 31, 2014 in connection
with Tigrent’s Demand Letter, the State Court Litigation and the Federal Court
Litigation, including any attorneys’ fees and expenses incurred in connection with
the negotiation and preparation of this Agreement. Tigrent may, but is not obligated
to, deduct any sums payable to it under this Section 4 from royalties otherwise payable
under the License Agreement.
5. Actions
Relating to RD:GEO. RDOC, R. Kiyosaki, and Weeks by this Agreement, individually and jointly agree to cease all use of
the RD:GEO name in any manner or for any purpose for as long as a licensing relationship exists between RDOC and Tigrent.
6. Amendments
to License Agreement. Simultaneously with the execution of this Agreement, RDOC and Tigrent shall execute and deliver
to the other a First Amendment to Rich Dad Operating Company, LLC License Agreement in the form attached as Exhibit 2.
7. Termination
of Credit Agreement and RDOC’s Forgiveness of Notes Owed by Tigrent. RDOC by this Agreement cancels, forgives and
releases Tigrent from, any and all past, present, and future obligations of Tigrent under that certain Rich Dad Operating Company,
LLC Credit Agreement dated March 25, 2011 (the “Credit Agreement”), a copy of which is attached as Exhibit 3,
and that certain Promissory Note dated March 25, 2011 in the original principal amount of [***] issued by Tigrent to RDOC pursuant
to the Credit Agreement (“Promissory Note.”) A copy of the Promissory Note is attached as Exhibit 4.
8. Rich
Dad Titles or Designations. RDOC shall provide a copy of the License Agreement, as amended, to all Rich Dad Advisors,
as defined in the License Agreement for the purpose of informing the Rich Dad Advisors of Tigrent’s rights.
9. RDOC’s
Grant of Proxy to Tigrent. RDOC acknowledges that it is the beneficial owner of [***] shares of common stock of Tigrent
(“RDOC’s Shares”). RDOC by this Agreement appoints Tigrent, as Proxy, with full power of substitution, to vote
the RDOC Shares, or any of them, on matters coming before any special or annual meetings of Tigrent shareholders occurring in
2014 and 2015, and on matters incidental to such meetings. RDOC acknowledges and agrees that Proxy shall vote RDOC’s Shares,
if at all, in a manner believed by Proxy, in Proxy’s sole and absolute discretion, to be in the best
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interests
of Tigrent’s shareholders as a whole, and that Proxy owes no duty or obligation to RDOC to vote RDOC’s Shares in a
manner beneficial to the specific interests of RDOC. RDOC shall not make any claim or demand or seek any liability or damages
in connection with Proxy’s exercise of this proxy.
10. Confidentiality.
The Parties agree to keep the terms and conditions of this Agreement confidential, except as necessary to effectuate its provisions
or as required by law, rule, regulation, court order, tax or other reporting requirement, or as agreed to by the Parties in writing.
11. Releases.
A. Release
of RDOC, R. Kiyosaki, Kim Kiyosaki, Weeks and RD:GEO. Except as provided in this Agreement, Tigrent, on behalf of
itself and any and all owners, partners, employees, agents, parents, subsidiaries, representatives, officers, directors, affiliates,
attorneys, predecessors, successors and assigns of those entities and individuals, irrevocably and unconditionally releases and
forever discharges RDOC, R. Kiyosaki, Kim Kiyosaki, Weeks and RD:GEO, and their past and present owners, employees, agents, spouses,
officers, directors, representatives, affiliates, attorneys, predecessors, successors and assigns, from any and all manner of
actions, causes of action, claims, lawsuits, debts, dues, sums of money, accounts, judgments, obligations, contracts, liabilities,
agreements, promises and damages of whatever kind or nature, foreseen or unforeseen, matured or unmatured, accrued or unaccrued,
contingent or fixed, liquidated or unliquidated, known or unknown, whether at law or in equity that are the subject of or relate
to matters that are the subject of the Demand Letter, State Court Litigation and the Federal Court Litigation. This release does
not extend to any rights granted under this Agreement, to any claims or causes of action arising from a breach of this Agreement,
or to claims arising from actions which occur after the Effective Date of this Agreement.
B. Release
of Tigrent. Except as provided in this Agreement, RDOC, R. Kiyosaki, Kim Kiyosaki, Weeks, and RD:GEO, on behalf of themselves
and any and all owners, partners, employees, parents, officers, directors, subsidiaries, spouses, agents, representatives, affiliates,
attorneys, predecessors, successors and assigns of those entities and individuals, irrevocably and unconditionally release and
forever discharge Tigrent, and its past and present owners, employees, agents, officers, directors, representatives, affiliates,
attorneys, predecessors, successors and assigns, from any and all manner of actions, causes of action, claims, lawsuits, debts,
dues, sums of money, accounts, judgments, obligations, contracts, liabilities, agreements, promises and damages of whatever kind
or nature, foreseen or unforeseen, matured or unmatured, accrued or unaccrued, contingent or fixed, liquidated or unliquidated,
known or unknown, whether at law or in equity that are the subject of or relate to matters that are the subject of the Demand
Letter, State Court Litigation and the Federal Court Litigation. This release does not extend to any rights granted under this
Agreement, to any claims or causes of action arising from a breach of this Agreement, or to claims arising from actions which
occur after the Effective Date of this Agreement.
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12. Dismissal
of Litigations with Prejudice. Upon full execution of this Agreement, the Parties agree to dismiss the State Court Litigation
and the Federal Court Litigation in their entirety with prejudice. Accordingly, upon execution of this Agreement, the Parties
shall exchange executed Stipulations for Dismissal With Prejudice and related Orders with respect to the State Court Litigation
and the Federal Court Litigation, in the forms attached as Exhibit 5, which may be held by Tigrent’s counsel until
payment of the amount set forth in Paragraph 4 of this Agreement is received by Tigrent’s counsel. Upon receipt by Tigrent’s
counsel of this payment, Tigrent shall promptly file the Stipulations and Orders with the Courts in the State Court Litigation
and the Federal Court Litigation. The Parties shall work cooperatively and in good faith to file any other documents as necessary
to effectuate the dismissals with prejudice.
13. Choice
of Law. This Agreement, and all rights and obligations arising from it, shall be governed by, and construed and enforced
in accordance with, the laws of the State of Arizona without application of Arizona’s choice of law rules.
14. Successors.
The rights and obligations created by this Agreement inure to and benefit the respective successors of the Parties. The
obligations created under this Agreement are binding on any
successor to a Party.
15. Assigns.
The rights and obligations created under this Agreement are not assignable by any Party without the written consent of the
other Parties.
16. Waiver.
No breach of any promise in this Agreement can be waived unless done expressly and in writing. Express waiver of any one breach
shall not be deemed a waiver of any other breach of the same or any other provision of this Agreement. Further, any delay or omission
in enforcing a right created under this Agreement shall not constitute a waiver of that right, and shall not operate to bar the
enforcement of that right. Any waiver of a default in performance of an obligation created under this Agreement shall not operate
as a waiver of, or excuse any subsequent default in, performance.
17. Counterparts.
This Agreement may be executed in counterparts. Execution of this Agreement may be accomplished through electronic transmission
of a scanned copy of the applicable signature page. When a counterpart has been executed and delivered by each Party, all counterparts
together shall constitute an original binding instrument; provided, however, that this Agreement shall be binding on and enforceable
against each Party that has executed and delivered a counterpart immediately upon such delivery even if all Parties have not delivered
executed and delivered a counterpart.
18. Entire.
Agreement. This Agreement, the License Agreement, and the First Amendment to the License Agreement contain the full and
complete statement of the agreement between the Parties on the subject matter of these Agreements and supersede any and all prior
discussions, arrangements, proposals, or understandings, whether written or oral, between the Parties on the subject matter of
these Agreements. The Parties are not relying on any fact, statement, inducement or representation that is not expressly set forth
in these Agreements.
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19. Headings.
The paragraph headings used in this Agreement are for convenience and reference only, and are not intended to define or limit
the scope or intent of any provision of this Agreement.
20. Additional
Acts. The Parties agree that each of them shall take such further action and execute such further documents, if any, which
may be reasonably requested, appropriate or necessary to implement this Agreement according to its terms or to carry out the purpose
of this Agreement.
21. Severability.
If, after the date of this Agreement, any provision is held to be illegal, invalid or unenforceable, such provision shall
be fully severable and the remainder of the Agreement shall remain enforceable and not affected; however, in that event, the Parties
will immediately negotiate in good faith to attempt to replace the invalid provision with a comparable term which, to the best
of the Parties’ abilities, fulfills and effectuates the purpose of the invalid provision.
22. Disputes
Concerning Settlement Agreement. In the event of any conflict, claim or dispute between the Parties concerning the obligations
set forth in this Agreement, each Party agrees that the Arizona Superior Court, Maricopa County shall have exclusive jurisdiction
over the action and the Parties, unless the Arizona state court lacks subject matter jurisdiction, in which case exclusive jurisdiction
will be in the United States District Court, District of Arizona located in Phoenix, Arizona. The Parties agree to submit to the
personal jurisdiction of the Arizona Superior Court, Maricopa County and the United States District Court as stated above and
agree that venue is proper in these courts. By this Agreement and consistent with the scope of this Section 22, the Parties waive
any and all objections and challenges to personal jurisdiction and venue in these courts that might otherwise exist. If any action
is brought in connection with this Agreement, the prevailing Party or Parties shall be entitled to receive from the non-prevailing
Party or Parties all reasonable expenses, including but not limited to reasonable attorneys’ fees and costs, in addition
to any other relief to which the successful Party or Parties may be entitled. Costs and attorneys’ fees shall be assessed
by a court and not by a jury and shall be included in any judgment obtained by the prevailing Party or Patties.
23. Alteration,
Modification or Amendment. This Agreement shall not be altered, modified or amended except by written agreement signed
by the Parties.
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Tigrent Inc. |
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Chief Administrative Officer & General Counsel |
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Rich Dad Operating Company, LLC |
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1780341 Alberta Ltd. (d/b/a/Rich Dad:
Global Entrepreneurs Organization) |
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Rich Dad Operating Company, LLC |
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CEO |
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Robert Kiyosaki |
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Kim Kiyosaki |
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1780341 Alberta Ltd. (d/b/a/Rich Dad:
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Rich Dad Operating Company, LLC |
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Darren Weeks |
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1780341 Alberta Ltd. (d/b/a/Rich Dad:
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Exhibit
1
RICH
DAD OPERATING COMPANY, LLC
LICENSE AGREEMENT
This
Rich Dad Operating Company, LLC License Agreement (this “Agreement”) by and between Rich Dad
Operating Company, LLC, a Nevada limited liability company (“Licensor”) and Tigrent Inc., a Colorado
corporation (the “Licensee”), is entered into as of September 1, 2013 (the “Effective Date”).
WHEREAS,
Licensee is in the business of developing, producing, marketing and delivering adult educational curricula on real estate investment,
business development, entrepreneurship, financial investment, asset protection, and personal development;
WHEREAS,
Licensor owns or otherwise possesses exclusive licenses for certain copyrights, trademarks, patents, and other valuable rights,
and the right to license those rights to others;
WHEREAS,
Licensor and Licensee wish to conduct business together to create, market and promote a Rich Dad Education branded curricula in
accordance with the terms and conditions set forth below.
NOW,
THEREFORE, in consideration of the mutual covenants and promises herein contained, the parties hereby agree as follows:
ARTICLE
I
DEFINITIONS
Capitalized
words and phrases used in this Agreement that are not otherwise defined herein shall have the meanings set forth below:
1.1.
The term “Affiliate” means an entity controlling, controlled, or under common control with a party. For these
purposes, “control” means; (a) the possession, directly or indirectly, of the power to direct the management or policies
of an entity, whether through the ownership of voting securities, by contract or otherwise; or (b) the ownership, directly or
indirectly, of at least fifty percent (50%) of the voting securities or other ownership interest of an entity.
1.2.
The term “Business” means developing, marketing, selling, and/or conducting Licensor-branded educational
products and services in the Field through any form of communication or media including, but not limited to, Trainings.
1.3.
The term “Cash Sales” shall mean the gross cash proceeds actually received by Licensee from the sale
of Trainings as the result of a “Rich Dad” branded marketing campaign conducted by Licensee that uses any combination
of (i) the Licensed Marks (as defined below), (ii) the name, image, or likeness of any of the Rich Dad Personalities
(as defined below) or Rich Dad Advisors (as defined below), or (iii) any “Rich Dad” copyrighted
or trademarked intellectual property of Licensor, including by way of example, and not limitation, books, video recordings, and
audio recordings of any of the Rich Dad Personalities. Cash Sales shall exclude any merchant fees, taxes, shipping, refunds (e.g.,
returns, right of rescission, NSF checks, and credit card chargebacks), rebates, bad debt and any sums paid to Legacy Learning,
LLC, a Delaware limited liability company, dba Professional Education Institute (“PEI”).
1.4. The
term “Confidential Information” means any and all information that is not readily ascertainable by proper means
and which derives economic value, actual or potential from not being generally known and which has been the subject of efforts
that are reasonable under the circumstances to maintain its secrecy. All information relating to the products or operations of
a party, which is provided to the other party, or to which the other party otherwise obtains access, pursuant to, or as a result
of, this Agreement shall be treated as Confidential Information hereunder, except such information which the other party can clearly
show; (a) at the time of this Agreement is publicly and openly known; (b) after the date of this Agreement becomes publicly and
openly known through no fault of the other party; (c) comes into the other party’s possession and lawfully obtained by the
other party from a source other than from the party or a source deriving from the party, and not subject to any obligation of
confidentiality or restrictions on use; or (d) is approved for release by written authorization of the other party.
1.5.
The term “Customer Data” means documents and other media (whether in human or machine readable form) containing
information, regarding customers and prospective customers. Without limiting the generality of the foregoing, the term “Customer
Data” shall include customer lists and personally Identifiable information about customers and prospective customers.
1.6.
The term “Educational Materials” means all advertising and promotional materials, handouts, workbooks,
presentations, manuals, software programs, and any other literature or material and other collateral items employed, provided,
distributed, sold, or otherwise made available in connection with the Business, in any form of communication or media and whether
or not in machine or human readable format.
1.7. The
term “Exclusive Field of Use” means live, on-line, or on-demand seminars, webinars, and training courses in
the Field delivered through any form of communication or media. Excluded from the Exclusive Field of Use are: (i) live,
in-person seminars of any kind conducted by Licensor or any affiliate of Licensor at which any of the following are featured speakers:
any of the Rich Dad Personalities, or any Rich Dad Advisor; and (ii) live,
in-person classes taught in schools (K-12), colleges or universities to matriculated students as part of an academic curriculum.
1.8. The
term “Field” means real estate investing, business strategies, stock market investment techniques, stock/paper
assets, cash management, asset protection, entrepreneurship and other financially-oriented subjects.
1.9. The
term “Licensed Intellectual Property” means individually, collectively or in any combination, Licensor’s
patents (whether issued or pending), copyrights (whether registered or not), trademarks and trade names (whether registered or
unregistered); as well as concepts, developments, trade secrets, methods, systems, programs, improvements, inventions, data and
information (whether in perceivable or machine-readable form), source code, works of authorship and products whether or not patentable,
copyrightable, or susceptible to any other form of protection, and whether or not reduced to practice or designated by Rich Dad
as Licensed Intellectual Property, including, but not limited to the (a) the Proprietary Materials and Information, (b) the Licensed
Marks and (c) the name, image, and likeness of the Rich Dad Personalities.
1.10. The
term “Licensed Marks” means the Licensor’s current and future trademarks, service marks, and trade dress
including.
1.11. The
term “Proprietary Materials and Information” means any and all material provided to Licensee by or on behalf
of Licensor, including but not limited to customer lists, products, trade secrets, source codes, development platforms, server
system configuration diagrams, lobby server specifications and programs, middleware, Application Program Interface data for middleware
or otherwise, unpublished artwork, tools, data and contents related to artwork, whether 2-
or 3- dimensional, all original and secondary audio or visual
data, as well as any and all other Licensed Intellectual Property and/or information which: (i) is provided to Licensee by or
on behalf of Licensor or to which Licensee is provided access by or on behalf of Licensor, (ii) is created developed, or otherwise
generated by or on behalf of Licensor, (iii) concerns or relates to any aspect of Licensor business or products, or (iv) is, for
any reason, identified or otherwise marked by Licensor as confidential; except such information which Licensee can show, clearly
and convincingly: (1) is at the time of disclosure, publicly and openly known as of the Effective Date of this Agreement, (2)
becomes publicly and openly known through no fault of Licensee, or (3) is in Licensee’s possession and documented prior
to the commenoement of the relationship between the parties, lawfully obtained by Licensee from a source other than from Licensor,
and not subject to any obligation of confidentiality or restrictions on use, or (4) is approved for release by written authorization
of Licensor.
1.12. The
term “Rich Dad Advisors” means” means any authors or co- authors of a work in the “Rich
Dad”, “Rich Dad Advisors”, “Rich Family”, “Rich Woman”, “Rich Life”
or similar series of books and all other individuals or concerns directly or in directly related to
“Rich Dad”, “Rich Dad Advisors”, “Rich Family”, “Rich
Woman”, “Rich Life” or affiliated brands which may be designated by either Robert T. Kiyosaki or Kim Kiyosaki
in his or her sole discretion.
1.13. The
term “Rich Dad Personalities” shall mean Robert Kiyosaki and Kim Kiyosaki.
1.14. The
term “Term” means the period of time from the Effective Date until the Agreement is terminated as provided
in Section 8 hereof.
1.15.
The term “Territory” shall mean worldwide.
1.16.
The term “Trainings” shall mean Licensor-branded in person or remote product offerings in the Field
to one or more recipients, including seminars, webinars and other computer or internet based trainings, and mentoring as may be
offered by Licensee in the conduct of the Business in the Territory and for which a fee is charged by Licensee.
ARTICLE
II
GRANT
OF LICENSE
2.1.
Licensor hereby grants to Licensee, and Licensee hereby accepts from Licensor, the sole and exclusive right and license
in and to the Licensed Intellectual Property for the purpose of allowing Licensee to (i) develop and create Educational Materials
and (ii) conduct the Business in the Territory by itself and through its subsidiaries and affiliates, Such license shall
include,
but shall not be limited to, the right to make, use, reproduce, modify, adapt, create derivative works of, translate, distribute
(directly and indirectly), transmit, display and perform publicly, license, rent, lease, export, import, offer for sale, sell
and commercially exploit the Licensed Intellectual Property, in whole or in part. Licensor understands that Licensee intends to
use the Licensed Intellectual Property, at its sole discretion, in connection with the Business, Licensee may, but is not obligated
to, to display Licensee’s copyright notice on any works or materials containing the License Marks.
2.2. Licensee
has the right to modify the Licensed Intellectual Property and to create derivative works (the “Derivative Works”);
provided that such Derivative Works may be used, copied, distributed, performed and/or displayed only in connection with the Business;
and provided further that Licensee will not distribute or sublicense products embodying the Derivative Works other than to end
users for personal use only and not for re-sale, distribution or re-licensing. Licensee will be deemed the owner of all Derivative
Works.
ARTICLE
III
LIMITATIONS,
RESTRICTIONS, COVENANTS
3.1 During
the Term, the Licensee shall not use the Licensed Intellectual Property other than as permitted by this Agreement.
3.2 Licensor
shall not, during the Term grant any third party a license to use the Licensed Intellectual
Property within the Exclusive Field of Use. During the term of this Agreement,
neither Licensor nor any of its Affiliates may (1) engage, directly or indirectly, in the Exclusive Field of Use, or (2) contact,
solicit, or direct any person or entity to contact or solicit, any of the customers of Licensee (or customers set forth in the
Customer Data) for the purpose of providing any products or services that are the same or similar to those offered by the Licensee
in the Business.
3.3 Licensee
may distribute goods and services embodying the Licensed Intellectual Property to end users for personal use only and not for
resale, distribution or re-licensing by such end users.
3.4 Licensee
acknowledges and agrees that, except as otherwise specifically provided for herein, this Agreement grants Licensee no title or
right of ownership in or to the Licensed Intellectual Property. Licensee shall not at any time do or cause to be done any act,
omission, or thing contesting or in any way impairing or tending to impair any part of Licensor’s right, title and interest
in the Licensed Intellectual Property.
3.5 In
the event Licensee shall be deemed to have acquired any ownership rights in the Licensed Intellectual Property, the Licensee shall
assign, and agrees to execute all documents reasonably requested by Licensor to assign, all such rights in the Licensed Intellectual
Property to Licensor or its nominee.
3.6 Licensee
acknowledges the validity of the Licensed Marks. The Licensed Marks (and all versions and derivatives thereof) are owned by Licensor
and shall be and remain the
exclusive
property of Licensor, All rights in and to the Licensed Marks other than those specifically granted to the Licensee herein, arc
reserved to Licensor for its own use and benefit. The Licensee shall not acquire any ownership rights in or to the Licensed Marks.
3.7 Licensee
shall own all work product including, but not limited to, ideas, any and all concepts, inventions, designs, trademarks, tradenames,
service marks, trade dress, logos, course content, Educational Materials, Customer Data (including client lists) generated through
the conduct of the Business, programs, software, reports, or other intellectual property and tangible work product, produced by
Licensee or any of its Affiliates or their officers, directors, employees, agents, or consultants pursuant to this Agreement,
and all prior drafts, derivations or versions thereof, regardless of whether such were incorporated into the Business (collectively
“Work Product”), shall be and remain the sole and exclusive property of Licensee when produced. No license or right
is granted hereunder at any time from Licensee to Licensor whether expressly or by implication, estoppel or otherwise, arising
out of or related to Licensee conduct of the Business or any Work Product.
ARTICLE
IV
CONFIDENTIALITY
4.1 Each
party acknowledges the other’s Confidential Information is unique and valuable and was developed or otherwise acquired by
the other at great expense, and that any unauthorized disclosure or use of the other’s Confidential Information would cause
the other irreparable injury loss for which damages would be an inadequate remedy. The party agrees to hold such Confidential
Information in strictest confidence, to use all efforts reasonable under the circumstances to maintain the secrecy thereof, and
not to make use thereof other than in accordance with this Agreement, and not to release or disclose Confidential Information
to any third party without the other’s prior written consent, subject to a court order, or subject to a sublicense consistent
with this Agreement and requiring the sublicensee to maintain the Confidential Information in strictest confidence, to use all
efforts reasonable under the circumstances to maintain the secrecy thereof, not to make use thereof other than in accordance with
the sublicense Agreement, and not to release or disclose Confidential Information to any third party without the other’s
prior written consent.
4.2 Each
party further acknowledges that any violation of this Section 4, shall constitute a material breach of this License Agreement
resulting in irreparable injury to the non-breaching party and agree that, in addition to any and all other rights available
to the non- breathing party by law or by this Agreement, the non-breaching party shall have the right to have an injunction entered
against the party to enjoin any further violations of this Agreement.
ARTICLE
V
LICENSE
FEES AND REPORTING
5.1
In consideration of the Licenses granted hereunder, the Licensee shall pay to Licensor a royalty in the amount of [***] of
the Licensee’s Cash Sales. Royalties with respect to Cash Sales shall be paid monthly to Licensor within [***] of the end
of the applicable month. Payments will be made in U.S. Dollars.
5.2 Licensee
shall render to Licensor, a written statement, in such form as Licensor may reasonably request, setting forth the Trainings sold
during each month Accounting Period, the applicable sales price, and such other information as Licensor may reasonably request
to verify the royalty payments due hereunder. Such statement shall be provided whether or not a royalty payment for the Accounting
Period is to be made. The Licensee shall keep such written records respecting the sales of Trainings as Licensor may reasonably
request so that royalties payable hereunder may be accurately determined, and shall permit such records to be examined by Licensor
or its authorized representative upon reasonable prior written notice at any reasonable time during regular business hours to
verify the records, reports and payments herein provided.
5.3 Licensee
shall be responsible for, and shall pay, all sales, value added and similar taxes, if any, which may be imposed on any receipts
of the Trainings sold hereunder, as well as any other tax based upon Licensee’s use of the Licensed Intellectual Property
in connection with the Business.
5.4 Notwithstanding
the foregoing, subject to and in accordance with the terms and conditions of that certain Royalty Payment Agreement dated March
15, 2013 (“RPA”) by and between Licensee as “Company” and Licensor as “Holder” (which RPA
Licensor and Licensee hereby each ratify and affirm), Licensee may, at its option, issue and deliver and Licensor agrees to accept
at a convertible promissory note in substantially the form provided for in the RPA (each, a “Note” and
collectively, the “Notes”) as payment for [***] of each royalty payment owing under the terms of the
Licensing Agreement. In addition, the Licensee may, with the consent of Licensor, issue and deliver and Licensor agrees to accept
a Note as payment for [***] of each royalty payment owing under the terms of the Licensing Agreement. The principal amount of
each Note shall equal the portion of such royalty payment that the Company has elected to pay via a Note. Each Note shall automatically
convert into shares of Preferred Stock upon a Change of Control as provided in such Note. For purposes of this Agreement, the
term “Preferred Stock” shall mean shares of the Company’s Series A Preferred Stock pursuant to
the Certificate of Designation in substantially the form attached provided for in the RPA (the “Certificate of Designation”).
In the event of a conflict between the terms and conditions of this Agreement and those of the RPA, the term and conditions
of the RPA shall control. Licensor and Licensee agree that any subsequent cash payment of royalties under this Agreement shall
first be applied to any outstanding balances on the Notes on a first in, first out basis.
5.5
LICENSOR ACKNOWLEDGED AND AGREES THAT NO REPRESENTATIONS OR STATEMENTS OF ACTUAL, AVERAGE, PROJECTED OR FORECASTED SALES,
PROFITS, ROYALTIES, OR EARNINGS HAVE BEEN MADE WITH RESPECT TO THE BUSINESS CONTEMPLATED BY THIS AGREEMENT,
ARTICLE
VI
LICENSEE’S
ADDITIONAL OBLIGATIONS
6.1 Licensee
shall meet the following performance standards:
6.1.1 Timeliness.
Service Level/Average Speed of Answer. This is how quickly the average telephone call is answered. Licensee’s
goal is to answer [***] of the calls within [***].
6.1.2 Abandonment
or percentage of calls not answered. Licensee’s goal is less than [***] should abandon within [***] of
the execution of the definitive license agreement, [***] and [***].
Licensee will test announcing current hold time to anyone who is placed on hold.
6.1.3 Responsiveness
to satisfy customers who call/write or e-mail or otherwise communicate with a concern or complaint.
Licensee’s goal shall be to have an initial response within [***] of the time. The goal is to conclude the complaint
handling, which would include the customer being notified and agreeing to the handling as quickly as possible.
Licensee’s goal is to resolve [***] of its complaints within [***]. Refund requests
received in writing will be resolved, meaning an official determination on the refund will be issued within [***] of the
time. Should the customer issue a rebuttal to the determination, the process will start over again the date of the
written rebuttal.
6.1.4 Lagging
Indicators. Those indicators that if managed correctly, should lead to a reduction in certain areas of customer complaints
and a resultant rise in overall customer satisfaction.
6.1.5 Source
of Complaints. Customer Complaints from the following sources should be reviewed and categorized in order to understand how
the organizations of people or processes need to be improved to avoid receiving a similar complaint in the future:
a. Any
of the Rich Dad Personalities
b. Licensor
c. Any
Attorney General Complaint
d. Any
Complaint from a Private Attorney
e. Any
Better Business Bureau (“BBB”) Complaint
6.2. Licensee
shall report on each of the above performance standards on a weekly basis, in a form suitable to Licensor, in Licensor’s discretion,
subject to change by Licensor from time-to-time.
ARTICLE
VII
QUALITY
CONTROL
7.1.
Licensee shall provide Licensor, without charge, additional samples of each item of Educational Materials from time to time
as Licensor may request.
7.2. At
the expense of Licensee, Licensor shall have the right to audit seminar quality through attendance as follows: Up to [***]
fulfillment seminars per year and up to [***]
advanced
training seminars per year.
7.3. Licensor
shall provide Licensee with access to at least [***] Licensor employee with current knowledge of Licensor, the Licensed Intellectual
Property, and Licensor’s brand marketing strategies.
7.4. Licensee
shall provide Licensor, and the Rich Dad Personalities access to Licensee employees, subject matter experts and independent contractors
for the purpose of providing feedback between the parties related to seminar content and presentations, marketing and advertising
review support, and product development and integration related to the Licensor brand and Licensor customers; provided that Licensor
and Licensor’s Affiliates shall not directly or indirectly solicit, hire or interfere with the relationship of Licensee
and such employees and to keep confidential any information relating to Licensee and furnished to Licensor, using the same degree
of care as Licensee uses to protect its own confidential information. Notwithstanding the foregoing, Licensor may also work with
subject matter experts and independent contractors on activities, events and projects unrelated to Licensee.
ARTICLE
VIII
BOARD
MEMBERSHIP
8.1. Licensor
and Licensee each acknowledge and agree that Licensee, acting through its Board of Directors, appointed Anthony C. Humpage to
the Licensee’s Board of Directors as the Licensor’s Designee. Henceforth, Licensee agrees to (i) include in its annual
proxy statements (or any other solicitations of stockholder consent) the nomination and recommendation of the BOD that the shareholders
approve the re-election or appointment, as the case may be, of the Licensor Designee to the Licensee’s Board of Directors
and (ii) use its reasonable best efforts to obtain such approval.
8.2. If
at any time Licensor shall notify Licensee of its desire to remove, with or without cause, any Licensor Designee, the Licensee,
as the case may be, shall use its reasonable best efforts to cause the removal of such Licensor Designee from the Licensee Board.
8.3. If
at any time any Licensor Designee ceases to serve on the Licensee Board (whether by reason of death, resignation, removal or otherwise),
Licensor shall be entitled to designate a successor director to fill the vacancy created thereby, Licensee shall use its best
efforts without any undue delay to cause such successor to become a director of the Licensee, respectively.
8.4 Licensee
covenants and agrees that so long as the Licensor Designee shall continue to serve on the Licensee’s Board of Directors,
and thereafter so long as the Licensor Designee shall be subject to any possible proceeding by reason of the fact that the Licensor
Designee served on the Licensee’s Board of Directors, Licensee, subject to Section 8.4., I, shall promptly obtain and maintain
in full force and effect Director’s and Officer’s
liability
insurance (“D&O Insurance”) In reasonable amount, but not event less [***], from established and reputable insurers.
In all policies of D&O Insurance, the Licensor Designee shall be named as an insured in such a manner as to provide the Licensor
Designee the same rights and benefits as are accorded to the most favorably insured of the Licensee director. Upon reasonable
request, Licensee shall provide Licensor Designee or his or her counsel with a copy of all D&O Insurance applications, binders,
policies, declarations, endorsements and related materials.
8.5 Section
8.4 notwithstanding, the Licensee shall have no obligation to obtain or maintain D&O Insurance if the Licensee’s Board
of Directors determines in good faith by a two thirds (2/3) majority of its members, that the premium costs for such insurance
are substantially disproportionate to the amount of coverage provided, the coverage provided by such insurance is limited by exclusions
so as to provide an insufficient benefit, or the Licensee is covered by similar insurance maintained by a subsidiary of Licensee.
In making any determination to eliminate or reduce D&O Insurance coverage, the Board shall seek the advice of independent
legal counsel or other advisors experienced in the review and analysis of D&O coverage.
8.6. Promptly
after (i) learning of facts and circumstances that may give rise to a proceeding, Licensee shall notify its D&O Insurance
carriers, if such notice required by the applicable policies, and any other insurance providing applicable insurance coverage
to the Licensee, of such facts and circumstances, or (ii) receiving notice of a proceeding, whether from Licensor Designee or
otherwise, Licensee shall give prompt notice to its D&O Insurance carriers and any other insurance providing applicable insurance
coverage to the Licensee in accordance with the requirements of the respective insurance policies. Licensee shall thereafter take
all appropriate action to cause such insurance carriers to pay on behalf of Licensor Designee, all expenses incurred or to be
incurred, and liability incurred, by Licensor Designee with respect to such proceedings in accordance with the terms of the applicable
D&O Insurance policies.
8.7. Any
of obligation of Licensee pursuant to this Article VIII (other than Sections 8.4 and 8.6, which shall survive according to their
terms) shall be effective following the Effective Date and shall terminate and be of no further force or effect upon the expiration
or early termination of this Agreement.
WARRANTIES
AND REPRESENTATIONS
9.1 Licensor
warrants and represents that;
9.1.1 It
is a limited liability company duly organized, validly existing, and in good standing under the laws of the state of Nevada with
all requisite power and authority to execute, deliver and perform this Agreement.
9.1.2 All
necessary actions on the part of Licensor have been duly taken to authorize the execution, delivery, and performance of the Agreement
by Licensor.
9.1.3 This
Agreement has been duly authorized, executed, and delivered by Licensor, constitutes the legal, valid, and binding obligation
of Licensor and is enforceable in accordance with its terms.
9.1.4 It
has the right to grant the licenses and enter into this Agreement without seeking the approval or consent of any third party and
without payments to any third party;
9.1.5 There
are no existing or threatened claims or proceedings by any entity relating to the Licensed Intellectual Property or challenging
Licensor’s ownership of the same;
9.1.6 None
of the Licensed Intellectual Property are subject to any outstanding order, decree, judgment, stipulation, written restriction,
undertaking or agreement limiting the scope or use of the Licensed Intellectual Property or declaring any of it abandoned;
9.1.7 The
Licensed Intellectual Property, or any portion thereof, does not interfere with, infringe, or misappropriate, or violate the intellectual
property right of any third party and Licensor has not received any charge, complaint, claim, or notice alleging any such interference,
infringement, misappropriation or violation nor does Licensor have any knowledge that any such charge or claim may be forthcoming;
and
9.1.8 Any
trade secrets comprising part of the Licensed Intellectual Property have been properly maintained as trade secrets.
9.2
Licensee warrants and represents that:
9.2.1 It
is a corporation duly organized, validly existing, and in good standing under the laws of the state of Colorado, with all requisite
corporate power and authority to execute, deliver and perform this Agreement.
9.2.3 All
necessary corporate proceedings of Licensee have been duly taken to authorize the execution, delivery, and performance of the
Agreement by Licensee.
9.2.4 This
Agreement has been duly authorized, executed, and delivered by Licensee, constitutes the legal, valid, and binding obligation
of Licensee and is enforceable in accordance with its terms.
9.2.5 Licensee
has all rights necessary and is fully authorized to enter into and perform under this Agreement; and
9.2.6 There
are no existing or threatened claims or proceedings by any entity against Licensee that would impair Licensee’s ability
to perform under this agreement.
ARTICLE
X
TERM
AND TERMINATION
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10.1 The
license hereunder shall commence upon the Effective Date and shall expire on the [***] anniversary thereof; provided however,
that if the effective date is not the first day of a calendar month then the Term shall expire on the last day of the calendar
month in which [***] anniversary of the Effective Date occurs. Notwithstanding the foregoing, the Term shall automatically renew
for successive one year periods unless either party provided written notice of termination not less, than [***] prior to the expiration
of the then current Term unless sooner terminated pursuant to Section 10.2.
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10.2 The
license hereunder may be terminated at any time:
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10.2.1.
By either party in the event of a breach of this Agreement by another party that is susceptible of cure, immediately, upon
the end of a [***] period after written notice of such breach to the breaching party, if such breach is not cured within the [***]
period; provided, however, as long as the breaching party is diligently attempting to cure such breach for such [***] period,
such cure period shall be extended by an additional period as may be required to cure such violation, but in no event more than
an additional [***].
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10.2.2.
By either party, immediately, if the other party becomes insolvent, makes an assignment for the benefit of its creditors,
or becomes the subject of any bankruptcy or insolvency proceedings, and such proceedings are not removed within sixty (60) days
of their initiation.
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10.2.3.
By either party, if the other party ceases to do business.
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10.2.4.
By Licensee, immediately, in the event Licensee is enjoined from using any of the Licensed Intellectual Property by a court
of competent Jurisdiction.
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10.2.5.
By Licensee, upon the occurrence of a Change in Control Of Licensor Event. For the purposes of this Agreement, the
term “Change in Control of Licensor Event” shall mean”
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10.2.5.1.
any person (other than any of the Rich Dad Personalities, or any company owned, directly or indirectly, by the Rich Dad Personalities
in substantially the same proportions as their membership interests of Licensor), is or becomes the Owner (as hereinafter
defined), directly or indirectly, of membership interests of Licensor representing [***] or more of the membership interests of
Licensor;
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10.2.5.2.
a merger, consolidation, reorganization, or other business combination of Licensor with any other entity, other than a merger
or consolidation which would result in the membership interests of the Rich Dad Personalities existing immediately prior thereto
continuing to represent (either by continuing to exist or by being converted into membership interests or voting
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securities, as the case may be, of the surviving
entity) more than [***] of the combined membership interests or voting power of the voting securities of Licensor or such surviving
entity outstanding immediately after such merger or consolidation; or
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10.2.5.3.
the members of Licensor approve a plan of complete liquidation of Licensor or the consummation of the sale or disposition
by Licensor of all or substantially all of Licensor’s assets other than (x) the sale or disposition of all or substantially
all of the assets of Licensor to a person or persons who the Owner, directly or indirectly, of at least [***] or more of the combined
membership interests of Licensor at the time of the sale or (y) pursuant to a spin- off type transaction, directly or indirectly,
of such assets to the members of Licensor.
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10.2.5.4.
For the purposes of this Section 10.2.5, the term “Owner” means any person who, directly or indirectly, through
any contract, arrangement, understanding, relationship, or otherwise has or shares (i) the power to vote, or to direct the voting
of such membership interest, or (ii) the power to dispose, or to direct the disposition of, such membership interest.
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10.3 Notwithstanding
anything else in this Agreement to the contrary, the Term of this Agreement shall terminate, without further action of either
Licensor or Licensee, upon the occurrence of a Change in Control of Licensee Event. For the purposes of this Agreement,
the Term “Change in Control of Licensee Event” shall mean:
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10.3.1.
any “person” as such term is used in Sections l3(d) and 14(d) of the Securities Exchange Act of 1934, as amended,
(other than Licensor, Licensee, any trustee or other fiduciary holding securities under any employee benefit plan of Licensee,
or any company owned, directly or Indirectly, by the shareholders of Licensee in substantially the same proportions as their ownership
of common stock of Licensee), is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of Licensee representing [***] or more of the combined voting power of Licensee’s
then outstanding securities;
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10.3.2.
during any period of [***], individuals who at the beginning of such period constitute the Board, and any new director (other
than a director designated by a person who has entered into an agreement with Licensee to effect a transaction described in paragraph
(a), (c), or (d) of this Section) whose election by the Board or nomination for election by Licensee’s shareholders was
approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of
the [***] or whose election or nomination for election was previously so approved, cease for any reason to constitute
at least a majority of the Board;
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10.3.3.
a merger, consolidation, reorganization, or other business combination of Licensee with any other entity, other than a merger
or consolidation which would result
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in
the voting securities of Licensee outstanding immediately prior thereto continuing to represent (either by remaining outstanding
or by being converted into voting securities of the surviving entity) more than [***] of the combined voting power of the voting
securities of Licensee or such surviving entity outstanding immediately after such merger or consolidation; provided, however,
that a merger or consolidation effected to implement a recapitalization of Licensee (or similar transaction) in which no person
[***] or more of the combined voting power of Licensee’s then outstanding securities shall not constitute a Change in Control;
or
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10.3.4.
the shareholders of Licensee approve a plan of complete liquidation of Licensee or the consummation of the sale or disposition
by Licensee of all or substantially all of Licensee’s assets other than (x) the sale or disposition of all or substantially
all of the assets of Licensee to a person or persons who beneficially own, directly or indirectly, at least [***] or more of the
combined voting power of the outstanding voting securities of Licensee at the time of the sale or (y) pursuant to a spin-off type
transaction, directly or Indirectly, of such assets to the shareholders of Licensee.
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10.4 Upon termination of the license hereunder, all rights and privileges in and to the Licensed Intellectual Property
granted to the Licensee herein shall automatically revert to Licensor or its nominee, and the Licensee shall immediately cease
any use thereof.
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10.5 Licensee shall, for a period of [***] (“Sell-Off
Period”) following the effective date of termination of the license granted by Licensor hereunder, have the right to fulfill
commitments made to customers during the Term. The provisions of this Agreement shall apply with full force and effect during
the Sell-Off Period, Upon expiration of the Sell-Off Period, Licensee shall immediately cease and desist from using or displaying
any forms of advertising containing any of the Licensed Marks.
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10.6 Section 3,7; and Articles IV (Confidentiality); IX (Warranties and Representations); XI (Indemnification); and
X1I1 (Miscellaneous) hereof shall survive termination (for any reason) of this Agreement.
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ARTICLE
XI
INDEMNIFICATION
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11.1 Each party shall defend, indemnify and hold harmless the other party and their
respective Affiliate and their respective officers, directors, agents, contractors, employees, successor, and assigns from and
against all claims, demands or causes of action, as well as any and all damages, expenses, costs, interest and reasonable legal
fees, including such fees incurred on appeal, in any way related to, arising out of or connected with a
breach of the indemnifying party’s representations,
warranties or covenants under this Agreement.
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11.2 EXCEPT FOR AMOUNTS PAYABLE TO THIRD PARTIES IN CONNECTION WITH CLAIMS SUBJECT TO
THE INDEMNIFICATION PROVISIONS OF SECTION 9.1 OR A BREACH OF EITHER PARTY’S OBLIGATIONS UNDER SECTION 5, NEITHER PARTY WILL,
UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS OR ANY OTHER SPECIAL, INDIRECT OR
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CONSEQUENTIAL
DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT EVEN IF THE PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES.
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ARTICLE
XII
INDEPENDENT
DEVELOPMENT
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Nothing
in this Agreement shall be construed as restricting Licensee’s right or ability to acquire, license, develop, manufacture
or distribute for itself, or have others acquire, license, develop, manufacture or distribute for Licensee, adult education products
and services, or technology performing the same or similar functions as the adult education products and services, or technology
contemplated by this Agreement, or to market or distribute such same or similar adult education products and services, or technology
in addition to, or in lieu of, the adult education products and services, or technology contemplated by this Agreement including,
whether in the conduct of the Business or otherwise.
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ARTICLE
XIII
MISCELLANEOUS
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13.1.
No Waiver. The failure of any party to this Agreement to enforce any particular provision of this Agreement at any time shall
not be construed as a waiver of such provision or provisions for any future dealing between the parties; nor shall it in any way
affect the validity of this Agreement or any portion thereof, or any party’s ability to enforce such provision at any time
in the future. No party’s failure to act on a breach by the other party shall be construed as a future waiver of any subsequent
breach of the same or other provisions of this Agreement.
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13.2.
Notices. All notices and other written communications required to be given under this Agreement shall be in writing and shall
be delivered to the addressee in person, mailed by registered or certified mail, return receipt requested, or by reputable overnight
courier. Any such notice shall be deemed to be delivered, given and received for all purposes as of the date so delivered, if
delivered personally, or, if sent by certified or registered mail, three days following the date on which the same was deposited
in a regularly maintained receptacle for the deposit of United States mail, postage and charges prepaid. The addresses of the
parties (until written notice of change shall have been given) shall he as follows:
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To
Licensor
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With
a copy to:
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To
Licensee:
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With
a copy to:
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13.3.
Alternative Dispute Resolution. Unless the parties expressly agree otherwise in writing, any dispute, controversy or claim
between the parties related to interpretation or enforcement of this Agreement will be determined by binding arbitration in accordance
with the rules of Judicial and Administrative Mediation Services (hereinafter “JAMS”), If the parties cannot
agree on a JAMS arbitrator 20 calendar days after notification of the claim, JAMS will appoint an arbitrator to hear the
matter and not by court action. The parties shall share equally all initial costs of arbitration. All decisions of the arbitrator
shall be final, binding, and conclusive on all parties. Notwithstanding the above, claims related to termination of this Agreement,
intellectual property, confidentiality and/or injunctive relief will not be subject to arbitration. The prevailing party shall
be entitled to reimbursement of attorneys’ fees, costs, and expenses incurred in connection with the arbitration or litigation.
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13.4.
Choice of Law. This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Arizona,
without regard to federal or state choice of law principles.
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13.5.
Choice of Forum. Any action brought to enforce or interpret the terms of this Agreement shall be brought exclusively in either
the Superior Court of the State of Arizona in and for the County of Maricopa; or the United States District Court for the District
of Arizona, located in Phoenix, Arizona.
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13.6.
Amendment. This Agreement, including all exhibits attached hereto, may not be amended or modified except by a document signed
by all parties. Such Amendments or Addenda shall specifically reference this Agreement and, to the extent that existing rights
or obligations are modified, shall specifically identify the Section(s) of this Agreement affected by the Amendment or Addendum.
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13.7.
Representation by Attorney. Each party to this Agreement has either: (a) been represented by an attorney of their choice in
connection with the negotiation and execution of this Agreement; or (b) declined to be so represented by an attorney after having
a reasonable opportunity to secure such representation.
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13.8.
Entire Agreement. This Agreement, along with any attachments, exhibits, schedules and documents specifically referenced herein,
constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior
communications, writings and other documents with regard thereto. No modification, amendment or waiver of any provision hereof
shall be binding upon either party hereto unless it
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is in writing
and executed by both of the parties hereto or, in the case of a waiver, by the party waiving compliance.
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13.9.
No Assignment. Neither party may assign this Agreement without the other party’s prior written consent. Notwithstanding
the foregoing, either party may assign this Agreement without the other party’s prior written consent in the event of a
merger, acquisition, reorganization, change in control, or sale of substantially all of the assets or business of such assigning
party. Any assignment in conflict with this provision shall be void.
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13.10.
Further Documents. The parties agree to execute and deliver all such further documents, agreements and instruments and take
such other and further action as may be necessary or appropriate to carry out the purposes and intent of this Agreement. Without
limiting the generality of the foregoing, the parties shall each execute and deliver such Instruments as are necessary to terminate,
as of the Effective Date, that certain Rich Dad Operating Company, LLC Licensing Agreement and such other agreements between
the parties executed pursuant, including, but not limited to, a termination of the Cash Collateral Account, Escrow and Security
Agreement, and to issue joint instructions to Escrow Agent to release all funds in the Cash Collateral Account
to Licensee, For the purposes of this paragraph, terms that in bold font shall be given the meaning ascribed to them in the Cash
Collateral Account, Escrow and Security Agreement.
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13.11.
Relationship of the Parties. Nothing contained in this Agreement shall be deemed or construed by the parties hereto or by
any third person to create the relationship of principal and agent or of partnership or of joint venture or of any association
between the parties. None of the provisions contained in this Agreement nor any acts of the parties hereto shall be deemed to
create any relationship between the parties other than the relationship specified in this Agreement.
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13.12.
Captions. The division of this Agreement into and the use of captions for paragraphs are for Convenience of reference only
and shall not affect the interpretation or construction of this Agreement.
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13.13.
Severability. In the event any provision of this Agreement or the application of any provision shall be held by a tribunal
of competent jurisdiction to be contrary to law, then, the remaining provisions of this Agreement shall be unimpaired, and the
illegal, invalid or unenforceable provision shall be replaced by a provision, which, being legal, valid and enforceable, comes
closest to the intent of the parties underlying the illegal, invalid or unenforceable provision. In any event, an illegal, invalid
or unenforceable provision shall not affect the enforceability or the validity of the remaining terms or portions thereof, and
each such unenforceable or invalid provision or portion thereof shall be severable from the- remainder of this Agreement.
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13.14.
Cost of Enforcement. If a party commences any arbitration, action at law or in equity, or for declaratory relief, in appellate
proceedings, to secure or protect any rights under, or to enforce any provision of, this Agreement, then, in addition to any judgment,
order, or other relief obtained in such proceedings, the prevailing party shall be entitled to recover from the losing party all
reasonable costs, expenses, and attorneys’ fees incurred by the party in
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connection
with such proceedings, including, attorneys’ fees incurred for consultation and other legal services performed prior to
the filing of such proceeding.
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13.15.
Successors. The terms of this Agreement shall be binding upon, and inure to the benefit of and be enforceable by, the successors,
assignees, and transferees of the parties hereto.
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13.16.
No Intended Third Party Beneficiaries. The parties acknowledge and agree that there are no intended third party beneficiaries
of this Agreement, including without limitation, other licensees of the Rich Dad brand and intellectual property or students of
the Business.
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13.17.
Counterparts/facsimile. This Agreement may be executed in 2 or more counterparts, each of which shall be deemed
to be an original and all of which taken together shall constitute a single instrument. This Agreement may be executed by any
party by delivery of a facsimile signature, which shall have the same force and effect as an original signature. Any party which
delivers a facsimile signature shall promptly thereafter deliver an originally executed signature to the other parties; provided,
however, that the failure to deliver an original signature page shall not affect the validity of any signature delivered by facsimile.
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13.18.
Board Approval. Licensor acknowledges and agrees that the effectiveness and enforceability of this Agreement are subject to
the ratification of the Board of Directors of Licensee.
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Rich Dad Operating
Company, LCC |
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Tigrent
Inc.
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By:
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By:
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Name:Anthony
C. Humpage
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Name: |
Michael
R Sullivan
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Title:
Chief Executive Officer
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Title: |
Chief
Executive Officer
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Exhibit
2
FIRST
AMENDMENT
TO
RICH DAD OPERATING COMPANY, LLC
LICENSING
AGREEMENT
This
FIRST AMENDMENT TO RICH DAD OPERATING COMPANY, LLC LICENSING AGREEMENT (this “First Amendment”) is dated as
of the 22nd day of April 2014 (the “First Amendment Date”), by and between (a) Rich Dad Operating Company, LLC,
a Nevada limited liability company (“Licensor”) and (b) Tigrent
Inc., a Colorado corporation (“Licensee”).
RECITALS
WHEREAS,
Licensor and Licensee entered into that certain Rich Dad Operating Company, LLC License Agreement with an effective date
of September 1, 2013 (, the “License Agreement”),
a copy of which License Agreement is attached as Exhibit A; and
WHEREAS,
Licensor and Licensee have agreed to modify the License Agreement pursuant to the terms and conditions of this First Amendment;
and
NOW,
THEREFORE, to these ends and in consideration of the mutual covenants contained herein, as well as the mutual benefits to be derived
herefrom, Licensor and Licensee hereby agree as follows:
1. Definitions.
Terms that are capitalized and not otherwise defined shall be given the meaning ascribed to them in the License Agreement.
2. Amendment
of License Agreement. The License Agreement is hereby amended as follows:
(a) Article
I, Definitions, is hereby amended to add the following new section 1.17:
1.17 “The
term “Permitted Products” means Licensor’s or the Rich Dad Personalities current products as set forth
on Schedule 1.17 attached to this Agreement. If Licensor desires to amend Schedule 1.17 to add other or new Licensor or
Rich Dad Personalities product(s), such amendment shall require the consent of Tigrent, which consent shall not be unreasonably
withheld. Licensor shall request such amendment in writing and shall include with such request a sample of the product Licensor
is requesting to add to Schedule 1.17 (or if a sample is not readily available, a written description of such product in sufficient
detail to enable Tigrent to make an informed decision about whether or not to grant consent) and Tigrent shall thereafter respond
to such request within [***], failing which such product shall be deemed approved by Tigrent.
(b) Section
1.7 is hereby deleted in its entirety and the following new Section 1.7 is substituted in its place:
“The
term ‘Exclusive Field of Use’ means live, on-line, or on-demand seminars, webinars, and training courses in the Field
delivered through any form of communication or media. Excluded from the Exclusive Field of Use are: (i), live in-person seminars,
and in-person or recorded webcasts, video chats, podcasts, webinars, instant messages, Twitter or Facebook messages and presentations
conducted by Licensor, any affiliate of Licensor, or any third party, at which any of the Rich Dad Personalities are featured
speakers (each, a “Permitted Event” and collectively, “Permitted Events”), it being acknowledged and agreed
by the Parties that Permitted Events may include, the sale of Permitted Products at the Permitted Event; and (ii) live, in-person
classes taught in schools (K-12), colleges or universities to matriculate students as part of an academic curriculum,”
(c) Section
5.1 is hereby amended by adding the following at the end thereof:
“Notwithstanding
the foregoing, the royalty payable on Licensee’s Cash Sales made during the period of January 1, 2014 through December 31,
2014 shall be reduced from [***]to [***]. Licensor acknowledges and agrees that Licensee has overpaid royalties for the period
of January 1, 2014 through February 28, 2014 at [***] and that, therefore, Licensee may take a credit in the amount of such overpayment
against royalties coming due.
(d) Article
VIII “Board Membership” is hereby deleted in its entirety.
3. Full
Force and Effect. Except as specifically modified by this First Amendment, all of the remaining terms and conditions set
forth in the License Agreement shall remain unchanged and in full force and effect.
4. Term
and Termination. This First Amendment does not affect the Term and Termination, Article X of the License Agreement, and
thus the License Agreement, as amended, will expire on September 1, 2018, provided that written notice of termination is given
not less than three (3) months prior to the expiration date.
5. Facsimile
Counterparts. This First Amendment may be executed by facsimile and in one or more counterparts, each of which shall be
deemed an original, but all of which shall constitute one and the same original.
6. Incorporation
by Reference. All of the recitals in the License Agreement and this First Amendment, together with the exhibits to the
License Agreement and this First,
Amendrnent, are incorporated in and made a part of the License Agreement by this reference.
WITNESS
WHEREOF, the undersigned have caused the parties hereto to enter into this Agreement effective the First Amendment Date.
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Rich
Dad Operating Company, LLC,
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Tigrent Inc., |
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A
Nevada limited liability company
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a Colorado corporation |
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By:
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By:
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Michael
R. Sullivan
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Anthony
Humpage
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Chief
Executive Officer
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Chief
Executive Officer
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First
Amendment, are incorporated in and made a part of the License Agreement by this reference.
WITNESS
WHEREOF, the undersigned have caused the parties hereto to enter into this Agreement effective the First Amendment Date.
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Rich
Dad Operating Company, LLC,
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Tigrent Inc., |
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A
Nevada limited liability company
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a Colorado corporation |
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By:
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By:
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Michael
R. Sullivan
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James
E. May
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Chief
Executive Officer
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Chief Administrative
& Gen. Counsel Officer
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Exhibit
3
RICH
DAD OPERATING COMPANY, LLC
CREDIT
AGREEMENT
This
Rich Dad Operating Company, LLC Credit Agreement (“Agreement”)
is made on March 25, 2011 by and between Rich Dad Operating Company, LLC, a Nevada limited liability
company (“RDOC”) whose address is 4330 North Civic Center Plaza, Suite 101, Scottsdale, Arizona 85281, Rich
Global, LLC, a Wyoming limited liability company (“RG”) whose address is 4330 North Civic Center Plaza,
Suite 101, Scottsdale, Arizona 85281 and Tigrent Inc. a Colorado corporation, (“Borrower”) whose address
is 1612 E. Cape Coral Parkway, Cape Coral, FL 33904, RDOC, RG and Borrower am sometimes herein referred to individually as a “Party”
and collectively as the “Parties”.
RECITALS
WHEREAS,
RG, Borrower and Rich Dad Education, LLC, a Wyoming limited liability company (“RDE”) were parties to that
certain License Agreement, dated July 18, 2006 (“RDE License Agreement”), which RDE License Agreement was terminated
in May 2010; and
WHEREAS,
RDOC, RG, and Borrower are parties to that certain Rich Dad Operating Company, LLC Licensing Agreement (“2010 License
Agreement”) with an effective date of March 16, 2010; and,
WHEREAS,
royalties in the aggregate amount of [***]currently due and payable under the RDE License Agreement remain unpaid as
of the date hereof (“Unpaid RDE Royalties”); and,
WHEREAS,
unpaid Current Royally Payments and Unfilled Royalty Payments (as such terms are defined in the 2010 License Agreement), totaling
in the aggregate [***], are due and payable under the 2010 License Agreement for the time period of January 1, 2010 through
December 31, 2010 as of the date hereof (“Unpaid Tigrent Royalties”) (such Unpaid RDE Royalties and Unpaid
Tigrent Royalties hereinafter referred to collectively as “Unpaid Royalties”); and,
WHEREAS,
the non-payment of the Unpaid Tigrent Royalties has resulted in a shortfall of the funding of the Escrow Account as
provided for in Section 3.2 (a)(ii) of the 2010 License Agreement in the amount of [***] (“Escrow Account
Shortfall”); and
WHEREAS,
RDOC, RG, and Tigrent wish to resolve the matter of Unpaid Royalties and to fund the Escrow Account Shortfall in accordance
with the terms and conditions of this Agreement,
NOW,
THEREFORE, in consideration of the foregoing, the Parties agree as follows:
ARTICLE
I
EXTENSION
OF CREDIT
Section
1.1. - Credit Commitment. Subject to the terms and conditions of this Agreement,
RDOC agrees to extend to Borrower, and Borrower agrees to accept from RDOC, credit in
the principal amount of [***] (the “Loan”). The Loan shall
be evidenced by a promissory note executed by Borrower, dated as of Closing (as defined
in Section 7.1(b) herein), substantially in the form attached hereto as Exhibit
A and drawn to the order of RDOC in the principal amount of the Loan (the “Note”),
the provisions of which are incorporated by reference. The Parties agree that the Loan
will be credited to the Unpaid Royalties in full satisfaction thereof.
Section
1.2 - Loan Documents. The Agreement, the Note, and all other documents and instruments issued in connection with the
Loan are sometimes collectively referred to as the “Loan Documents”. In the event of any conflict between the
terms and provisions contained in this Agreement and in any of the Loan Documents, the terms and provisions of this Agreement
shall control.
Section
1.3. - Interest. So long as no Event of Default (as defined in Section 5.1 below) exists, interest on the unpaid
principal balance of the Loan shall accrue at the rate of [***] per annum, commencing on January 1, 2011. Accrued interest
for the [***] period ending June 30, 2011 in the amount of [***] shall be due and payable on June 30, 2011. Thereafter,
accrued interest on the Note shall be due and payable in arrears, in quarterly installments, on the last day of each calendar
quarter (i.e., March 31st, June 30th, September 30th and December 31st.)
Section
1.4 - Payment Schedule. The principal of the Loan shall be payable in installments according to the following
schedule:
Date
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Principal
Installment
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April
30, 2012
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[***]
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The
last day of each calendar month commencing May 31, 2012, until fully paid.
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[***]
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Section
1.5 - Application of Payments. Interest payments under the Note shall be paid to RDOC. Payments of principal under
the Note shall be paid, first, into the Escrow Account until the Escrow Account Shortfall has been amortized, and then to RDOC.
Section
1.6 - Optional Prepayment. Borrower shall have the right to prepay the outstanding principal without premium or penalty
in whole or in part, in accordance with the terms in the Note.
(a) Each
prepayment shall be pursuant to a notice from Borrower to RDOC, which notice shall (i) specify the amount of interest and
principal to be prepaid and the date of prepayment (which shall be a Business Day), (ii) be irrevocable, (iii) obligate
Borrower to prepay the principal outstanding hereunder in the amount and on the date specified therein, and (iv) be effective
only if received by RDOC not later than 1:00 p.m. Pacific time on a date falling not later than 5 Business
Days prior to the prepayment date specified therein.
(b) Prepaid
amounts under this Section 1.6 shall first be applied to reduce accrued but unpaid interest under the Note, with the remainder
then applied to reduce outstanding principal amount of the Note.
ARTICLE
II
CONDITIONS
PRECEDENT TO MAKING OF LOAN
Section
2.1 - Conditions Precedent. RDOC’s obligation to make the Loan under this Agreement shall be subject to the fulfillment
to RDOC’s sole satisfaction, in its absolute discretion, of all of the following conditions:
(a) Loan
Documents. Borrower shall provide to RDOC the executed Note and other Loan Documents, all in form and substance satisfactory
to RDOC and RDOC’s counsel.
(b) Borrower’s
Authorization. Borrower shall have provided in form and substance satisfactory to RDOC, properly certified resolutions, duly
authorizing the execution and delivery of this Agreement, the Note, and the other Loan Documents.
(c) Representation
and Warranties. The representations and warranties set forth in this Agreement or in the Loan Documents are true and correct
as of the Closing.
(d) No
Event of Default. There shall not exist, at the time of Closing, a condition which would constitute an Event of Default
under this Agreement under any other Loan Document, or the 2010 License Agreement.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
Section
3.1 - Representations and Warranties. Borrower represents and warrants to RDOC, as of the Closing, as of the date of
any renewal, extension or modification of the Loan, and at all times, any Indebtedness (as defined in Section 7.1(e) below)
exists:
(a) Organization.
Borrower is a for profit corporation which is, and at all times shall be, duly organized,
validly existing, and in good standing under and by virtue of the laws of Borrower’s state of incorporation. Borrower is
duly authorized to transact business in the State of Colorado and all other states in which Borrower is doing business,
having obtained all necessary filings, governmental licenses and approvals for each state in which Borrower is doing business.
Specifically, Borrower is, and at all times shall be, duly qualified as a foreign corporation in all states in which the failure
to so quality would have a material adverse effect on its business or financial condition. Borrower has the full power and authority
to own its properties and to transact the business in which it is presently engaged or presently proposes to engage. Borrower
shall do all things necessary to preserve and to keep in full force and effect its existence, rights and privileges, and shall
comply with all regulations, rules, ordinances, statutes, orders and decrees of any governmental or quasi-governmental authority
or court applicable to Borrower and Borrower’s business activities.
(b) Authorization.
Borrower’s execution, delivery, and performance of this Agreement and all the Loan Documents have been duly authorized
by all necessary action by Borrower and do not conflict with, result in a violation of, or constitute a default under (i)
any provision of Borrower’s articles of incorporation or organization, or bylaws, or any agreement or other instrument binding
upon Borrower or, (ii) any law, governmental regulation, court decree, or order applicable to Borrower or to Borrower’s
properties.
(c) Financial
Information. Each of Borrower’s audited financial statements supplied to RDOC truly and completely disclosed Borrower’s
financial condition as of the date of the statement in all material respects.
(d) Legal
Effect. This Agreement constitutes, and any instrument or agreement Borrower is required to give under this Agreement
when delivered, will constitute legal, valid, and binding obligations of Borrower enforceable against Borrower in accordance with
their respective terms.
(e) Binding
Effect. This Agreement, the Note, and all Loan Documents are binding upon the signers thereof, as well as upon their successors,
representatives and assigns, and are legally enforceable in accordance with their respective terms.
ARTICLE
IV
COVENANTS
Section
4.1 - Covenants. Borrower covenants and agrees with RDOC that, so long as this Agreement remains in effect, Borrower
will:
(a) Financial
Records. Maintain its books and records in accordance with generally accepted accounting principles (“GAAP”),
applied on a consistent basis, and to permit
employees,
agents or assigns of RDOC, at any reasonable time, to examine or audit Borrower’s books, accounts, and records and to make
copies and memoranda of Borrower’s books, accounts, and records.
(b) Financial
Statements. Furnish RDOC with the following:
(i)
Annual Statements. As soon as available, but in no event later than 90 days after the
end of each fiscal year, Borrower’s balance sheet and income statement for the year ended, audited by a certified public
accountant satisfactory to RDOC.
(ii)
Additional Information. Furnish such additional information and statements, as RDOC may
reasonably request from time to time.
(c) Performance.
Perform and comply, in a timely manner, with all terms, conditions, and provisions set forth in this Agreement, the
Note, the other Loan Documents and the 2010 License Agreement.
ARTICLE
V
DEFAULT
Section
5.1 - Event of Default. Each of the following shall constitute an Event of Default under this Agreement:
(a) Payment
Default. Borrower fails to make any payment when due under the Loan.
(b) Other
Defaults. Borrower fails to comply with or to perform any other term, obligation, covenant or condition contained in this
Agreement or in any of the Loan Documents and such failure is not cured by Borrower within 30 days of Borrower’s written
receipt of notice from RDOC setting forth the details of such failure.
(c) Default
under 2010 License Agreement. Borrower is declared in default by RDOC under Section 7.1 of the 2010 License Agreement
and such event of default is not cured in accordance with Section 7.2 of the 2010 License Agreement.
(d) False
Statements. Any warranty, representation or statement made or furnished to RDOC by Borrower, or on Borrower’s behalf,
under this Agreement or the Loan Documents is false or misleading in any material respect, either now, as of Closing, or at the
time made or furnished, or becomes false or misleading in any material respect at any time thereafter.
(e) Insolvency.
The dissolution or termination of Borrower’s existence as a going business, the insolvency of Borrower, the appointment
of a receiver for any part of Borrower’s
property,
any assignment for the benefit of creditors, or the commencement of any proceeding under any bankruptcy or insolvency laws by
or against Borrower.
Section
5.2 - Effect of an Event of Default. If any Event of Default shall occur, except where otherwise provided in this
Agreement or the Loan Documents, all commitments and obligations of RDOC under this Agreement, the Loan Documents or the 2010
License Agreement immediately will terminate and, at RDOC’s option and sole discretion, all Indebtedness immediately will
become due and payable, all without notice of any kind to Borrower, except that in the case of an Event of Default of the type
described in the “Insolvency” in Section 5.1(e) above, such acceleration shall be automatic and not
optional, In addition, RDOC shall have all the rights and remedies provided in the Loan Documents or available at law, in equity,
or otherwise. Except as may be prohibited by applicable law, all of RDOC’s rights and remedies shall be cumulative and may
be exercised singularly or concurrently, Election by RDOC to pursue any remedy shall not exclude pursuit of any other remedy,
and an election to make expenditures or to take action to perform an obligation of Borrower shall not affect RDOC’s right
to declare a default and to exercise its rights and remedies.
Section
5.4 - Force Majenre. Notwithstanding anything in this Agreement or other Loan Documents to the contrary, Borrower
shall not be liable for any failure or delay in performance under this Agreement (including for delay in the payment of money
due and payable under the Loan Documents) to the extent said failures or delays are caused by conditions beyond Borrower’s
control including, but not limited to Acts of God, government sanctions or restrictions, quarantines, strikes, riots, wars
or other military action, civil disorder, acts of terrorism, rebellions or revolutions, fires, floods, vandalism, sabotage or
the acts of third parties, and/or any other cause beyond Borrower’s reasonable control; provided that, as a condition to
the claim of nonliability, Borrower shall give RDOC prompt written notice, with full details following the occurrence of the cause
relied upon.
ARTICLE
VI
MISCELLANEOUS
PROVISIONS
The
following miscellaneous provisions are a part of this Agreement:
Section
6.1 - Term. This Agreement shall be effective as of March 25, 2011, and shall continue in full force and effect
until such time as all Indebtedness has been paid in full, or until such time as the Parties may agree in writing to
terminate this Agreement.
Section
6.2 - Release. Effective upon Closing, RDOC and RG, on behalf of themselves and their respective past, present and
future members, affiliates, successors and assigns, hereby release and forever discharge RDE and Borrower and their respective
past, present and future subsidiaries, employees, directors, officers, shareholders, attorneys, agents, successors and
assigns, for, from and against any and all demands, damages, losses, costs, expenses, obligations,
liabilities, claims, actions, causes of action, judgments, penalties and suits of any kind, nature or description whatsoever,
whether or not now known, suspected or unsuspected, in contract or in tort, at law, in equity, or otherwise, heretofore or hereafter
occurring, accruing or arising, that RDOC or RG has, may have or may have had based upon or arising out of the Unpaid Royalties,
The releases provided for in this paragraph shall not extend to the obligations of Borrower under this Agreement, the Note, the
other Loan Documents, or the 2010 License Agreement.
Section
6.3 - Amendments. This Agreement, together with any Loan Documents, constitutes the entire understanding and agreement
of the Parties as to the matters set forth in this Agreement. No alteration of or amendment to this Agreement shall be effective
unless given in writing and signed by the Party or Parties sought to be charged or bound by the alteration or amendment,
Section
6.4 - Attorneys’ Fees; Expenses. Borrower agrees to pay upon demand all of RDOC’s costs and expenses, including
RDOC’s attorneys’ fees and RDOC’s legal expenses, incurred in connection with the enforcement of this Agreement.
RDOC may hire or pay someone else to help enforce this Agreement, and Borrower shall pay the costs and expenses of such enforcement.
Such costs and expenses include RDOC’s attorneys’ fees and legal expenses whether or not there is a lawsuit, including
attorneys’ fees and legal expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay
or injunction), appeals, and any anticipated post-judgment collection services. Borrower also shall pay all court costs and such
additional fees as may be directed by the court.
Section
6.5 - caption Headings, Caption headings in this Agreement are for convenience purposes only and are not to be used
to interpret or define the provisions of this Agreement.
Section
6.6 - Governing Law.
This Agreement will be governed by, construed and enforced in accordance with federal laws and the laws of the State of Arizona.
This Agreement has been accepted by RDOC in the State of Arizona.
Section
6.7 - No Waiver by RDOC. RDOC shall not be deemed to have waived any rights under this Agreement, the Loan Documents
or 2010 License Agreement, unless such waiver is given in writing and signed by RDOC. No delay or omission on the part of RDOC
is exercising any right shall operate as a waiver of well right or any other right. A waiver by RDOC of a provision of this Agreement,
the Loan Documents or 2010 License Agreement shall not prejudice or constitute a waiver of RDOC’s right otherwise
to demand strict compliance with that provision or any other provision of this Agreement, the Loan Documents or 2010 License Agreement.
No prior waiver by RDOC, nor any course of dealing between RDOC and Borrower, shall constitute a waiver of any of RDOC’s
rights or of any of Borrower’s obligations as to any future transactions. Whenever the consent of RDOC is required under
this Agreement, the granting of such consent by RDOC in any instance shall not constitute continuing consent to subsequent instances
where such consent is required and in all cases such consent may he granted or withheld in the sole discretion of RDOC.
Section
6.8 - Notices. All notices and other communications provided for herein shall be in writing and shall be delivered
to the intended recipient at the “Address for Notices” specified below or at such other address as shall be
designated by a party in a notice to each other party. All notices and other communications hereunder shall be deemed to have
been duly given, in the case of hand delivery or overnight delivery, when received, or when actually received by telefacsimile,
or in the case of mail, 3 Business Days after the date deposited in the mail, addressed as aforesaid.
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To
RDOC:
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Rich
Dad Operating Company, LLC
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Attention:
Michael Sullivan
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4330
North Civic Center Plaza
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Suite
101
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Scottsdale,
Arizona 85251
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Facsimile:
(480) 348-1439
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With
a copy to:
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Charles
W. Lotzar
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Lazar
Law Firm, P.C.
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6263
North Scottsdale Road, Suite 216
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Scottsdale,
Arizona 85250
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Facsimile:
(480) 905-0321
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To
Borrower:
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Tigrent
Inc.
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Attention:
James E. May
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Chief
Administration Officer
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and
General Counsel
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1612
E. Cape Coral Parkway
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Cape
Coral, Florida 33904
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Facsimile:
(239) 540-6501
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Section
6.9 - Severability. If a court of competent jurisdiction finds any provision or this Agreement to be illegal, invalid,
or unenforceable as to any circumstance, that finding shall not make the offending provision illegal, invalid, or unenforceable
as to any other circumstance. If feasible, the offending provision shall be considered modified so that it becomes legal, valid
and enforceable, If the offending provision cannot be so modified, it shall be considered deleted from this Agreement. Unless
otherwise required by law, the illegality, invalidity, or enforceability of any provision of this Agreement shall not affect the
legality, validity or enforceability of any other provision of this Agreement.
Section
6.10 - Successors and Assigns. All covenants and agreements contained by or on behalf of Borrower shall bind Borrower’s
successors and assigns and shall inure to the benefit of RDOC and its successors and assigns. Borrower shall not, however, have
the right to assign Borrower’s rights under this Agreement or any interest therein, without the prior written consent of
RDOC, which consent may be withheld by RDOC in its sole and absolute discretion.
Section
6.11 - Survival of Representations and Warranties. Borrower understands and agrees that in extending the Loan, RDOC
is relying on all representations, warranties, and covenants made by Borrower in this Agreement or in any certificate or other
instrument delivered by Borrower to RDOC under this Agreement or the Loan Documents. Borrower further agrees all such representations,
warranties and covenants will survive the extension of the Loan and delivery to RDOC of the Loan Documents, shall be continuing
in nature, and shall remain in full force and effect until such time as Borrower’s Indebtedness shall be paid in full, or until
this Agreement shall be terminated in the manner provided above, whichever is the last to occur.
Section
6.12 - Time is of the Essence. Time is of the essence in the performance of this Agreement.
Section
7.1 - Definitions. The following capitalized words and terms shall have the following meanings when used in this
Agreement. Unless specifically stated to the contrary, all references to dollar amounts shall mean amounts in lawful money of
the United States of America. Words and terms used in the singular shall include the plural, and the plural shall include the
singular, as the context may require. Words and terms not otherwise defined in this Agreement shall have the meanings attributed
to such terms in the Uniform Commercial Code. Accounting words and terms not otherwise defined in this Agreement shall have the
meanings assigned to them in accordance with generally accepted accounting principles as in effect on the date of this Agreement.
(a)
Agreement. The word “Agreement” means this Loan Agreement, as it may be amended or modified from time
to time, together with all exhibits and schedules attached to this Loan Agreement from time to time.
(b) Closing.
The word “Closing” means the execution and delivery of this Agreement, the Note and the Loan Documents,
Closing will occur on March 25, 2011.
(e) Indebtedness.
The word “Indebtedness” means the indebtedness evidenced by the Note or Loan Documents, including all principal
and interest together with all other indebtedness and costs and expenses for which Borrower is responsible under this Agreement
or under any of the Loan Documents.
(f) Loan.
The word “Loan” means any and all loans and financial accommodations from RDOC to Borrower whether now
or hereafter existing, and however evidenced, including without limitation those loans and financial accommodations described
herein or described on any exhibit or schedule attached to this Agreement from time to time.
(g) Note.
The word “Note” means the note executed by Tigrent, Inc, in the principal amount of [***], dated
as of Closing, together with all renewals of, extensions of, modifications of, refinancings of, consolidations of, and substitutions
for the Note.
[Signatures
Appear on the Following Page]
WITNESS
WHEREOF, the undersigned have caused the Parties hereto to enter into this Agreement effective the date first written above.
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Rich
Dad Operating Company, LLC,
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a
Nevada limited liability company
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Its:
Director of Operations
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a
Wyoming limited liability company
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Its:
Director of Operations
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EXHIBIT
A
FORM
OF PROMISSORY NOTE
PROMISSORY
NOTE
FOR
VALUE RECEIVED, the undersigned (hereinafter referred to as “Maker”), promises to pay to the order of
Rich Dad Operating Company, LLC, a Nevada limited liability company (which, together with its successors and assigns and any
other transferee or successor then becoming the holder of this Note, shall herein after be referred to as “Payee”),
at 4330 North Civic Center Plaza, Suite 101, Scottsdale, Arizona 85281, or such
other place as Payee may from time to time designate in writing, in lawful money of the United States of America, the principal
amount of [***], together with accrued interest thereon as more specifically set
forth herein.
1.
Definitions.
“Business
Day” shall mean any day on which commercial banks are required to close in Maricopa County, Arizona.
“Indebtedness”
shall mean the indebtedness evidenced by this Note or Loan Documents, including all principal and interest together with all other
indebtedness and costs and expenses for which Maker is responsible under this Note or under any of the Loan Documents.
“Note”
shall mean this promissory note, and any note or notes issued in exchange or substitution therefor.
“Post-Event
of Default Rate” shall mean, in respect of any principal of or interest on the Note or any other amount payable by Maker
under the Note that is not paid when due (whether at stated maturity, by acceleration or otherwise), a rate per annum during the
period from and including the due date to, but excluding the date such amount is paid in full, equal to [***].
2.
Payment of Interest. So long as no Event of Default (as defined in Section
7 herein) exists, interest on the unpaid principal balance of this Note shall accrue
at the rate of [***] per annum commencing January 1, 2011. Accrued interest for
the [***] period ending June 30, 2011 in the amount of [***] shall be due and
payable on June 30, 2011. Thereafter, accrued interest on the Note shall be due
and payable in arrears in quarterly installments on the last day of each calendar quarter
(i.e., March 31st, June 30th, September 30th and December 31st.)
3.
Repayment of Principal.
(a)
The outstanding principal balance of this Note shall be payable in installments according to the following schedule:
Date
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Principal
Installment
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April
30, 2012
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[***]
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The
last day of each calendar month commencing May 31, 2012, until fully paid.
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[***]
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(b)
Interest payments under the Note shall be paid to RDOC. Payments of principal under the Note shall be paid, first, into the Escrow
Account until the Escrow Account Shortfall has been amortized, and then to RDOC.
3.
Optional Prepayment.
(a) Maker
shall have the right to prepay the outstanding principal without premium or penalty in whole or in part on any Business Day, subject
to this Section 3.
(b) Each
prepayment shall be pursuant to a notice from Maker to Payee, which notice shall (i) specify the amount of interest and
principal to be prepaid and the date of prepayment (which shall be a Business Day), (ii) be irrevocable, (iii) obligate
Maker to prepay the principal outstanding hereunder in the amount and on the date specified therein, and (iv) be effective
only if received by Payee not later than 1:00 p.m. Phoenix, Arizona time on a date falling not later than 5 Business Days
prior to the prepayment date specified therein.
(c) Prepaid
amounts under this Section 3 shall first be applied to reduce accrued but unpaid interest under the Note, with the remainder
then applied to reduce outstanding principal amount of the Note.
4. Payments;
Computations; Etc.
(a) All
payments of principal, interest and other amounts to be made by Maker under this Note shall be made, in immediately available
funds, to Payee no later than 1:00 p.m. Phoenix, Arizona time on the date on which such payment shall become due (each
such payment made after such time on such due date to be deemed to have been made on the next succeeding Business Day). If an
Event of Default has occurred and is continuing, Payee may apply any such payment to amounts due hereunder as it may elect in
its discretion. If the due date of any payment under this Note would otherwise fall on a day that is not a Business Day, such
date shall be extended to the next succeeding Business Day and interest shall be payable for any principal so extended for the
period of such extension. Any amount of principal not paid when due hereunder shall accrue interest at the Post-Event of Default
Rate from the applicable due date through the date of the payment.
(b) Interest
shall be computed on the basis of the actual days elapsed (including the first day but excluding the last day) occurring in
the period for which payable, relative to a year of 365
or 366 days, as the case may be.
5.
Waiver of Notice of Demand, Etc. Maker, its permitted successors or assigns, and all persons liable
hereon or liable for the payment of this Note, hereby waive presentment for
payment,
demand, protest, and notice of demand, protest, and nonpayment, and consent to any and all renewals, extensions or modifications
that might be made by Payee as to the time of payment of this Note from time to time.
6. Limitations
on Interest. This Note is hereby expressly limited so that in no contingency or event whatsoever, whether by acceleration
of maturity of this Note or otherwise, shall the amount paid or agreed to be paid to Payee for the use, forbearance or detention
of the money advanced or to be advanced hereunder exceed the highest lawful rate permissible under applicable law. If, from any
circumstances whatsoever, fulfillment of any provision hereof or of any other agreement evidencing or securing the indebtedness,
at the time performance of such provision occurs, shall involve the payment of interest in excess of that authorized by applicable
law, the obligation to be fulfilled shall be reduced to the limit so authorized by applicable law, and if, from any circumstances,
Payee shall ever receive as interest an amount that would exceed the highest lawful rate applicable to Maker, such amount that
would be excessive interest shall be applied to the reduction of the unpaid principal balance of the indebtedness evidenced hereby
and not to the payment of interest.
7.
Events of Default. Each of the following shall constitute an Event of Default under this Agreement:
(a) Payment
Default. Maker fails to make any payment of Indebtedness when due under the Note or other Loan Documents.
(b) Other
Defaults. Maker fails to comply with or to perform any other term, obligation, covenant or condition contained in this Note
or other Loan Documents and such failure is not cured by Maker within 30 days of Maker’s receipt of written notice
from RDOC setting forth the details of such failure.
(c) Default
under 2010 License Agreement. Maker is declared in default by Payee under Section 7.1 of the 2010 License Agreement
and such event of default is not cured in accordance with Section 7.2 of the 2010 License Agreement.
(d) False
Statements. Any warranty, representation or statement made or furnished to Payee by Maker or on Maker’s behalf under
this Agreement or the Loan Documents is false or misleading in any material respect, either now or at the time made or furnished
or becomes false or misleading at any time thereafter.
(e)
Insolvency. The dissolution or termination of Maker’s existence as a going business, the insolvency of Maker,
the appointment of a receiver for any part of Maker’s property, any assignment for the benefit of creditors, or the commencement
of any proceeding under any bankruptcy or insolvency laws by or against Maker.
8. Effect
of an Event of Default. In the case of an Event of Default, other than insolvency referred to in Section 7(e) of
this Note, Payee may, by notice to Maker, (i) declare the principal amount then outstanding of, and the accrued interest,
on the Note and all other amounts payable by Maker hereunder to be forthwith due and payable, whereupon such amounts shall be
immediately due and payable without presentment, demand, protest or other formalities of any kind, all of which are hereby waived
by Maker; and (ii) in the case of the occurrence of an
Event
of Default referred to in Section 7(e) of
this Note, the principal amount than outstanding of, and the accrued interest on all amounts payable by Maker under, this Note
shall become automatically immediately due and payable without notice, presentment, demand, protest or other formalities of any
kind, all of which are hereby expressly waived by Maker,
9.
Force Majeure. Notwithstanding anything in this Note or other Loan Documents to the contrary, Maker shall not be
liable for any failure or delay in performance under this Agreement (including for delay in the payment of money
due and payable under this Note or other Loan Documents)
to the extent said failures or delays are caused by conditions beyond Maker’s control including, but not limited to Acts
of God, government sanctions or restrictions, quarantines, strikes, riots, wars or other military action, civil disorder, acts
of terrorism, rebellions or revolutions, fires, floods, vandalism, sabotage or the acts of third parties, and/or any other cause
beyond Maker’s reasonable control; provided that, as a condition to the claim of nonliability, Maker shall give RDOC prompt
written notice, with full details following the occurrence of the cause relied upon.
10.
WAIVER OF JURY TRIAL AND CONSENT TO JURISDICTION. MAKER IRREVOCABLY CONSENTS TO THE JURISDICTION AND VENUE OF ANY STATE
OR FEDERAL COURT SITTING IN MARICOPA COUNTY, ARIZONA, AND KNOWINGLY AND IRREVOCABLY WAIVES A TRIAL BY JURY WITH RESPECT TO ANY
PROCEEDING INVOLVING THIS NOTE.
11.
Miscellaneous.
(a) Waiver.
No failure on the part of Payee to exercise and no delay in exercising, and no course of dealing with respect to any right, power
or privilege under this Note shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or
privilege under this Note preclude any other or further exercise thereof or the exorcise of any other right, power or privilege.
The remedies provided herein are cumulative and not exclusive of any remedies provided by law.
(b) Notices.
All notices and other communications provided for herein shall be in writing and shall be delivered to the intended recipient
at the “Address for Notices” specified below or at such other address as shall be designated by a party in
a notice to each other party. All notices and other communications hereunder shall he deemed to have been duly given, in the case
of hand delivery or overnight delivery, when received, or when actually received by telefacsimile, or in the case of mail, 3 Business
Days after the date deposited in, the mail, addressed as aforesaid.
To
Payee:
Rich
Dad Operating Company, LLC
Attention:
Michael Sullivan
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
Maker:
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
(c)
Expenses, Etc. Maker agrees to pay on demand (i) all reasonable costs and expenses of Payee, including
counsels’ fees, in connection with the enforcement of the Loan Documents; and (ii) all transfer, stamp, documentary
or other similar taxes, assessments or charges levied by any governmental or revenue authority in respect of any of the foregoing
or any other document referred to herein.
(d)
Amendments, Etc. Any provision of this Note may be modified or waived by an instrument or instruments in writing
signed by Maker and Payee.
(e)
Governing Law. The Note shall be governed by, and construed in accordance with, the laws of the state of Arizona.
(f)
Severability. If any terms or provisions of this Note or the application thereof to any person or circumstance shall to
any extent by invalid or unenforceable, the remainder of this Agreement, or the application of such terms or provisions to persons
or circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each term and
provision of this agreement shall be valid and enforceable to the fullest extent permitted by law.
(g)
Entire Agreement. This Note constitutes the entire agreement between the parties with respect to the subject matter
hereof.
[Signature
Appears on the Following Page]
IN
WITNESS WHEREOF, intending to be legally bound, Maker has caused this Note to be executed and delivered on the date first above
written.
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MAKER: |
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TIGRENT INC., a Colorado corporation |
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By:
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Print Name: |
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Its: |
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Exhibit
4
PROMISSORY NOTE
FOR
VALUE RECEIVED, the undersigned (hereinafter referred to as “Maker”), promises to pay to the order of Rich
Dad Operating Company, LLC, a Nevada limited liability company (which, together with its successors and assigns and any other
transferee or successor then becoming the holder of this Note, shall herein after be referred to as “Payee”),
at 4330 North Civic Center Plaza, Suite 101, Scottsdale, Arizona 85281, or such other place as Payee may from time to time
designate in writing, in lawful money of the United States of America, the principal amount of [***],
together with accrued interest thereon as more specifically set forth herein.
1.
Definitions.
“Business
Day” shall mean any day on which commercial banks are required to close in Maricopa County, Arizona.
“Indebtedness”
shall mean the indebtedness evidenced by this Note or Loan Documents, including all principal and interest together with all
other indebtedness and costs and expenses for which Maker is responsible under this Note or under any of the Loan Documents.
“Note”
shall mean this promissory note, and any note or notes issued in exchange or substitution therefor.
“Post-Event
of Default Rate” shall mean, in respect of any principal of or interest on the Note or any other amount payable
by Maker under the Note that is not paid when due (whether at stated maturity,
by acceleration or otherwise), a rate per annum during the period from and including the due date to, but excluding the date
such amount is paid in full, equal to [***].
2. Payment
of Interest. So long as no Event of Default (as defined in Section 7 herein) exists, interest on the unpaid principal
balance of this Note shall accrue at the rate of [***] per annum commencing January 1, 2011. Accrued interest for the [***]
period ending June 30, 2011 in the amount of [***] shall be due and payable on June 30, 2011. Thereafter, accrued
interest on the Note shall be due and payable in arrears in quarterly installments on the last day of each calendar quarter (i.e.,
March 31st, June 30th, September 30th and December 31st.)
3.
Repayment of Principal.
(a) The
outstanding principal balance of this Note shall be payable in installments according to the following schedule:
Date
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Principal
Installment
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April
30, 2012
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[***]
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The last day of each
calendar month commencing May 31, 2012, until fully paid.
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[***]
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(b) Interest
payments under the Note shall be paid to RDOC. Payments of principal under the Note shall be paid, first, into the Escrow Account
until the Escrow Account Shortfall has been amortized, and then to RDOC.
3.
Optional Prepayment.
(a) Maker
shall have the right to prepay the outstanding principal without premium or penalty in whole or in part on any Business Day, subject
to this Section 3.
(b) Each
prepayment shall be pursuant to a notice from Maker to Payee, which notice shall (i) specify the amount of interest and
principal to be prepaid and the date of prepayment (which shall be a Business Day), (ii) be irrevocable, (iii) obligate
Maker to prepay the principal outstanding hereunder in the amount and on the date specified therein, and (iv) be effective
only if received by Payee not later than 1:00 p.m. Phoenix, Arizona time on a date falling not later than 5 Business Days
prior to the prepayment date specified therein.
(c) Prepaid
amounts under this Section 3 shall first be applied to reduce accrued but unpaid interest under the Note, with the remainder
then applied to reduce outstanding principal amount of the Note.
4.
Payments; Computations; Etc.
(a) All
payments of principal, interest and other amounts to be made by Maker under this Note shall be made, in immediately available
funds, to Payee no later than 1:00 p.m. phoenix, Arizona time on the date on which such payment shall become due (each
such payment made after such time on such due date to be deemed to have been made on the next succeeding Business Day). If an
Event of Default has occurred and is continuing, Payee may apply any such payment to amounts due hereunder as it may elect in
its discretion. If the due date of any payment under this Note would otherwise fall on a day that is not a Business
Day, such date shall be extended to the next succeeding Business Day and interest shall be payable for any principal so extended
for the period of such extension. Any amount of principal not paid when due hereunder shall accrue interest at the Post-Event
of Default Rate from the applicable due date through the date of the payment.
(b) Interest
shall be computed on the basis of the actual days elapsed (including the first day but excluding the last day) occurring in the
period for which payable, relative to a year of 365 or 366 days, as the case may be.
5.
Waiver of Notice of Demand, Etc. Maker,
its permitted successors or assigns, and all persons liable hereon or liable for the payment of this Note, hereby waive presentment
for
payment,
demand, pretest, and notice of demand, protest, and nonpayment, and consent to any and all renewals, extensions or modifications
that might be made by Payee as to the time of payment of this Note from time to time.
6.
Limitations on Interest. This Note is hereby expressly limited so that in no contingency
or event whatsoever, whether by acceleration of maturity of this Note or otherwise, shall the amount paid or agreed to be paid
to Payee for the use, forbearance or detention of the money advanced or to be advanced hereunder exceed the highest lawful rate
permissible under applicable law. If, from any circumstances whatsoever, fulfillment of any provision hereof or of any other
agreement evidencing or securing the indebtedness, at the time performance of such provision occurs, shall involve the payment
of interest in excess of that authorized by applicable law, the obligation to be fulfilled shall be reduced to the limit
so authorized by applicable law, and if, from any circumstances, Payee Shall ever receive as interest an amount that
would exceed the highest lawful rate applicable to Maker, such amount that would be excessive interest shall be applied to the
reduction of the unpaid principal balance of the indebtedness evidenced hereby and not to the payment of interest.
7. Events
of Default. Each of the following shall constitute an Event of Default under this Agreement:
(a) Payment
Default. Maker fails to make any payment of Indebtedness when due under the Note or other Loan Documents.
(b) Other
Defaults. Maker fails to comply with or to perform any other term, obligation, covenant or condition contained in this Note
or other Loan Documents and such failure is not cured by Maker within 30 days of Maker’s receipt of written notice from
RDOC setting forth the details of such failure.
(c) Default
under 2010 License Agreement. Maker is declared in default by Payee under Section 7.1 of the 2010 License Agreement
and such event of default is not cured in accordance with Section 7.2 of the 2010 License Agreement.
(d) False
Statements. Any warranty, representation or statement made or furnished to Payee by Maker or on Maker’s behalf under
this Agreement or the Loan Documents is false
or misleading in any material respect, either now or at the time made or furnished or becomes false or misleading at any
time thereafter.
(e) Insolvency.
The dissolution or termination of Maker’s existence as a going business, the insolvency of Maker, the appointment of a receiver
for any part of Maker’s property, any assignment for the benefit of creditors, or the commencement of any proceeding under
any bankruptcy or insolvency laws by or against Maker.
8. Effect
of an Event of Default. In the case of an Event of Default, other than Insolvency referred to in Section
7(e) of this Note, Payee may, by notice to Maker, (1) declare the principal amount then outstanding of, and the accrued interest,
on the Note and all other amounts payable by Maker hereunder to be forthwith due and payable, whereupon such amounts shall be
immediately due and payable without presentment, demand, protest or other formalities of any kind, all of which are hereby waived
by Maker; and (ii) in the case of the occurrence of an
Event
of Default referred to in Section 7(e) of this Note, the principal amount then outstanding of, and the accrued interest
on all amounts payable by Maker under, this Note shall become automatically immediately due and payable without notice, presentment,
demand, protest or other formalities of any kind, all of which are hereby expressly waived by Maker.
9. Force
Majeure. Notwithstanding anything in this Note or other Loan Documents to the contrary. Maker shall not be liable for
any failure or delay in performance under this Agreement (including for delay in the payment of money due and payable under
this Note or other Loan Documents) to the extent said failures or delays are caused by conditions beyond Maker’s control
including, but not limited to Acts of God, government sanction or restrictions, quarantines, strikes, riots, wars or other
military action, civil disorder, acts of terrorism, rebellions or revolutions, fires, floods, vandalism, sabotage or the acts
of third parties, and/or any other cause beyond Maker’s reasonable control; provided that, as a condition to the claim
of nonliability, Maker shall give RDOC prompt written notice, with full details following the occurrence of the cause relied upon.
10. WAIVER
OF JURY TRIAL AND CONSENT TO JURISDICATION. MAKER. IRREVOCABLY CONSENTS TO THE JURISDICTION AND VENUE OF ANY STATE OR
FEDERAL COURT SITTING IN MARICOPA COUNTY, ARIZONA, AND KNOWINGLY AND IRREVOCABLY WAIVES A TRIAL BY JURY WITH RESPECT TO ANY
PROCEEDING INVOLVING THIS NOTE.
11. Miscellaneous.
(a) Waiver.
No failure on the part of Payee to exercise and no delay in exercising, and no course of dealing with respect to any right,
power or privilege under this Note shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power
or privilege under this Note preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
The remedies provided herein are cumulative and not exclusive of any remedies provided by law.
(b) Notices.
All notices and other communications provided for herein shall be in writing and Shall be delivered to the intended recipient
at the “Address for Notices” specified below or at such other address as shall be designated by a party in
a notice to each other party. All notices and other communication hereunder shall be deemed to have been duly given, in the case
of hand delivery or overnight delivery, when received, or when actually received by telefacsimile, or in the case of mail,
3 Business Days after the date deposited in the mail, addressed as aforesaid.
To
Payee: |
Rich Dad Operating Company, LLC |
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Attention: Michael Sullivan |
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4330 North Civic Center Plaza |
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Suite 101 |
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Scottsdale, Arizona 85251 |
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Facsimile: (480) 348-1439 |
With a copy to: |
Charles W. Lotzar |
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Lotzar
Law Firm, P.C.
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6263 North Scottsdale Road, Suite 216 |
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Scottsdale, Arizona 85250 |
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Facsimile: (480) 905-0321 |
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To Maker: |
Tigrent Inc. |
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Attention: James E. May, |
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Chief Administration Officer |
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and General Counsel |
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1612 E Cape Coral Parkway |
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Cape Coral, Florida 33904 |
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Facsimile: (239) 540-6501 |
(c) Expenses,
Etc. Maker agrees to pay on demand (i) all reasonable costs and expenses of Payee, including counsels’ fees, in connection
with the enforcement of the Loan Documents; and (ii) all transfer, stamp, documentary or other similar taxes, assessments or charges
levied by any governmental or revenue authority in respect of any of the foregoing or any other document referred to herein.
(d) Amendments,
Etc. Any provision of this Note may be modified
or waived by an instrument or instruments in writing signed by Maker and Payee.
(e) Governing
Law. The Note shall be governed by, and construed in accordance with, the laws of the state of Arizona.
(f) Severability.
If any terms or provisions of this Note or the application thereof to any person or circumstance shall to any extent by invalid
or unenforceable, the remainder of this Agreement, or the application of such terms or provisions to persons or circumstances
other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each term and provision of this
agreement shall be valid and enforceable to the fullest extent permitted by law.
(g)
Entire Agreement. This Note constitutes the entire agreement between the parties with respect to the subject matter hereof.
[Signature
Appears on the Following Page]
IN
WITNESS WHEREOF, intending to be legally bound, Maker has caused this Note to be executed and delivered on the date first above
written.
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MAKER:
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TIGRENT
INC., a Colorado corporation
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By:
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Print
Name:
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Steven
C. Barve |
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Its:
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CEO |
Exhibit
5
Cohen
Kennedy Dowd & Quigley, P.C.
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The
Camelback Esplanade I
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2425
East Camelback Road ● Suite 1100
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Phoenix,
Arizona 85016
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Telephone
602●252●8400 Facsimile 602●252●5339
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Ronald
Jay Cohen (003041) Email: rcohen@ckdqlaw.com
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Daniel
P. Quigley (009809) Email: dquigley@ckdqlaw.com
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Gabriel
R. Aragon (024649) Email: garagon@ckdqlaw.com
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Allison
N. Clemency (029854) Email: aclemency@ckdqlaw.com
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Attorneys
for Plaintiff
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ARIZONA
SUPERIOR COURT
COUNTY
OF MARICOPA
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TIGRENT
INC., a Colorado corporation doing business as Rich Dad Education,
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Case
No: CV2014-003169
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Plaintiff,
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STIPULATION
FOR DISMISSAL WITH PREJUDICE
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vs.
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|
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|
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|
RICH
DAD OPERATING COMPANY, LLC, a Nevada limited liability company; RICH DAD: GLOBAL ENTREPRENEURS ORGANIZATION, a business entity;
DARREN WEEKS, an individual; and, ROBERT KIYOSAKI, an individual,
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(Assigned
to the Honorable David Cunanan)
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Defendants.
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The
parties in the above-captioned action have reached a settlement of their disputes and desire to conclude the litigation. Therefore,
the parties stipulate that the Court may enter an Order dismissing this action in its entirety with prejudice.
A
proposed form of Order accompanies this Stipulation.
Cohen
Kennedy Dowd & Quigley
RESPECTFULLY
SUBMITTED this ___ day of April, 2014.
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Cohen
Kennedy Dowd & Quigley, P.C.
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The
Camelback Esplanade I
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2425
East Camelback Road, Suite 1100
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Phoenix,
Arizona 85016
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Attorneys
for Plaintiff
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By:
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Ronald
Jay Cohen
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Daniel
P. Quigley
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Gabriel
R. Aragon
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Allison
N. Clemency
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ROSHKA
DEWULF & PATTEN
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One
Arizona Center
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400
East Van Buren Street, Suite 800
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Phoenix,
Arizona 85004
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Attorneys
for RDOC
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By:
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John
DeWulf
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Maura
Quigley
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QUARLES
& BRADY LLP
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One
Renaissance Square
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Two
North Central Ave.
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Phoenix,
Arizona 85004
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Attorneys
for Robert Kiyosaki
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By:
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Don
Martin
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Sarah
Anchors
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BURCH
& CRACCHIOLO, P.A.
|
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702
East Osborn Road, Suite 200
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Phoenix,
Arizona 85014
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Attorneys
for Darren Weeks and Rich Dad: Global Entrepreneurs Organization
|
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By:
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Edwin
D. Flemming
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Cohen Kennedy Dowd & Quigley
The
foregoing was electronically
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FILED
with the Clerk of Court
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this
__ day of April, 2014 and a copy
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sent
via the E-filing System to:
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|
Honorable
David Cunanan
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MARICOPA
COUNTY SUPERIOR COURT
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201
West Jefferson
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Central
Court Building – 4B
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Phoenix
Arizona 85003-2243
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|
And
a COPY sent via electronic mail
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and
U.S. mail this __ day of April, 2014 to:
|
|
John
DeWulf
|
Maura
Quigley
|
ROSHKA
DEWULF & PATTEN
|
One
Arizona Center
|
400
East. Van Buren Street, Suite 800
|
Phoenix,
Arizona 85004
|
Attorneys
for RDOC
|
|
Don
Martin
|
Sarah
Anchors
|
QUARLES
& BRADY LLP
|
One
Renaissance Square
|
Two
North Central Ave.
|
Phoenix,
Arizona 85004
|
Attorneys
for Robert Kiyosaki
|
|
Edwin
D. Flemming
|
BURCH
& CRACCHIOLO, P.A.
|
702
East Osborn Road, Suite 200
|
Phoenix,
Arizona 85014
|
Attorneys
for Darren Weeks and Rich Dad: Global Entrepreneurs Organization
|
Cohen
Kennedy Dowd & Quigley, P.C.
|
The
Camelback Esplanade I
|
2425
East Camelback Road ● Suite 1100
|
Phoenix,
Arizona 85016
|
Telephone
602●252●8400 Facsimile 602●252●5339
|
|
Ronald
Jay Cohen (003041) Email: rcohen@ckdqlaw.com
|
Daniel
P. Quigley (009809) Email: dquigley@ckdqlaw.com
|
Gabriel
R. Aragon (024649) Email: garagon@ckdqlaw.com
|
Allison
N. Clemency (029854) Email: aclemency@ckdqlaw.com
|
Attorneys
for Plaintiff
|
ARIZONA
SUPERIOR COURT
COUNTY
OF MARICOPA
|
|
|
|
TIGRENT
INC., a Colorado corporation doing business as Rich Dad Education,
|
|
|
Case
No: CV2014-003169
|
|
|
|
|
Plaintiff,
|
|
|
DISMISSAL
WITH PREJUDICE
|
|
|
|
|
vs.
|
|
|
|
|
|
|
(Assigned
to the Honorable David Cunanan)
|
RICH
DAD OPERATING COMPANY, LLC, a Nevada limited liability company; RICH DAD: GLOBAL ENTREPRENEURS ORGANIZATION, a business entity;
DARREN WEEKS, an individual; and, ROBERT KIYOSAKI, an individual,
|
|
|
|
|
|
|
|
Defendants.
|
|
|
|
Pursuant
to the parties’ Stipulation for Dismissal with Prejudice, and good cause appearing therefor,
IT
IS HEREBY ORDERED that this action is dismissed in its entirety with prejudice.
ENTERED
IN OPEN COURT this ___ day of April, 2014.
Cohen
Kennedy Dowd & Quigley, P.C.
|
The
Camelback Esplanade I
|
2425
East Camelback Road ● Suite 1100
|
Phoenix,
Arizona 85016
|
Telephone
602●252●8400 Facsimile 602●252●5339
|
|
Ronald
Jay Cohen (003041) Email: rcohen@ckdqlaw.com
|
Daniel
P. Quigley (009809) Email: dquigley@ckdqlaw.com
|
Gabriel
R. Aragon (024649) Email: garagon@ckdqlaw.com
|
Attorneys
for Plaintiff
|
UNITED
STATES DISTRICT COURT
DISTRICT
OF ARIZONA
|
|
|
|
Tigrent
Inc., a Colorado corporation doing business as Rich Dad Education,
|
|
|
Case
No:
|
|
|
|
|
Plaintiff,
|
|
|
STIPULATION
FOR DISMISSAL WITH PREJUDICE
|
|
|
|
|
vs.
|
|
|
|
|
|
|
|
Darren
Weeks, an individual; and, Rich Dad: Global Entrepreneurs Organization, a Canadian business,
|
|
|
(Assigned
to the Honorable David G. Campbell)
|
|
|
|
|
Defendants.
|
|
|
|
The
parties in the above-captioned action have reached a settlement of their disputes and desire to conclude the litigation. Therefore,
the parties stipulate that the Court may enter an Order dismissing this action in its entirety with prejudice.
A
proposed Order accompanies this Stipulation.
Cohen Kennedy Dowd & Quigley
RESPECTFULLY
SUBMITTED this ___ day of April, 2014.
|
|
|
|
Cohen
Kennedy Dowd & Quigley, P.C.
|
|
The
Camelback Esplanade I
|
|
2425
East Camelback Road, Suite 1100
|
|
Phoenix,
Arizona 85016
|
|
Attorneys
for Plaintiff
|
|
|
|
|
By:
|
|
|
|
Ronald
Jay Cohen
|
|
|
Daniel
P. Quigley
|
|
|
Gabriel
R. Aragon
|
|
|
|
|
Burch
& Cracchiolo, P.A.
|
|
702
East Osborn Road, Suite 200
|
|
Phoenix,
Arizona 85014
|
|
Attorneys
for Darren Weeks and Rich Dad:
|
|
Global
Entrepreneurs Organization
|
|
|
|
|
By:
|
|
|
|
Edwin
D. Flemming
|
Cohen Kennedy Dowd & Quigley
CERTIFICATE OF SERVICE
I
hereby certify that on April ___, 2014, I electronically transmitted the attached document to the Clerk’s office using the
CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants and/or mailed copies
of the same to unregistered CM/ECF parties;
|
|
Edwin
D. Flemming
|
|
Burch
& Cracchiolo, P.A.
|
|
702
East Osborn Road, Suite 200
|
Phoenix,
Arizona 85014
|
|
Attorneys
for Darren Weeks and Rich Dad:
|
Global
Entrepreneurs Organization
|
|
|
UNITED
STATES DISTRICT COURT
DISTRICT
OF ARIZONA
Tigrent
Inc., a Colorado corporation doing business as Rich Dad Education,
|
|
|
Case
No: 2:14-cv-006600-DGC
|
|
|
|
|
Plaintiff,
|
|
|
DISMISSAL
WITH PREJUDICE
|
vs.
|
|
|
|
|
|
|
(Assigned
to the Honorable David G.
Campbell)
|
Darren
Weeks, an individual; and, Rich Dad: Global Entrepreneurs Organization, a Canadian business,
|
|
|
|
|
|
|
|
Defendants.
|
|
|
|
Pursuant
to the parties’ Stipulation For Dismissal With Prejudice, and good cause appearing therefor,
IT
IS HEREBY ORDERED that this action is dismissed in its entirety with prejudice.
ENTERED
this __ day of April, 2014.
|
|
|
Honorable
David G. Campbell
|