EXHIBITS 06/10/2008 9 Opposition to Motion for Change of Venue filed by Burr & Forman, LLP. (Nesmith, Kip) (Entered: 06/10/2008)
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Doc 9
OCR extracts
EXHIBIT 1 AFFIDAVIT OF GENE PRICE
STATE OF ALABAMA
COUNTY OF JEFFERSON
1. My name is Gene Price. I am over the age of nineteen (19) and competent to testify to the matters contained herein, all of which are based upon my personal knowledge.
2. I am currently an attorney at Burr & Forman LLP in its Birmingham, Alabama office. In that role, I oversaw legal representation services that Burr & Forman attorneys performed on behalf of Perihelion Global, Inc. and John Beebe beginning in or around January, 2006. Substantially all services performed by Burr & Forman for Perihelion Global, Inc. and John Beebe were performed at Burr & Forman's office in Birmingham, Alabama.
3. All invoices for services performed by Burr & Forman for Perihelion Global, Inc. and John Beebe were created at Burr & Forman's office in Birmingham, Alabama and copies of those invoices have been retained there.
4. Victor Hayslip is an attorney in Burr & Forman's Birmingham, Alabama office.
/s/
Gene Price
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EXHIBIT 2 AGREEMENT TO PAY AMOUNTS DUE AS INVOICED
This Agreement to Pay Amounts Due as Invoiced ("Agreement") is made and entered by and between Perihelion Global, Inc. and John Beebe, on the one hand, and Bun & Forman LLP ("Burr & Forman"), on the other hand.
RECITALS
WHEREAS, Perihelion Global, Inc. and John Beebe ("Clients") retained Burr & Forman in or around January, 2006 to represent them in connection with, among other things, certain planned mergers and acquisitions.
WHEREAS, throughout 2006 and 2007, attorneys for Burr & Forman worked diligently to provide Clients with legal services and advice on a number of matters.
WHEREAS, Burr & Forman handled all matters for Clients with the expectation and agreement that Clients would pay Burr & Forman for its services. Burr & Forman invoiced Clients in a timely fashion for all services provided and Clients never raised any issue about such statements.
WHEREAS, the Clients owe Burr & Forman $215,613.61 in fees and expenses for services rendered that have not been paid by Clients (hereinafter, the "Indebtedness").
WHEREAS, the parties have agreed to enter into this Agreement to allow Clients to pay the past due amount of the Indebtedness owing to Burr & Forman pursuant to the terms set forth below:
AGREEMENT
1. MONTHLY PAYMENTS. Clients agree to pay Burr & Forman the amount of the Indebtedness in 9 monthly installments. On or before February 15, 2008, and by the 15th day of each month thereafter through September 15, 2008, Clients will pay to Burr & Forman monthly installments of Twenty-Five Thousand and no/100 Dollars ($25,000.00) . On or before October 15, 2008, Clients will pay Burr & Forman a final installment of Fifteen Thousand Six Hundred Thirteen and 61/100 Dollars (15,613.61). Clients' first payment to Burr & Forman will be paid on or before February 15, 2008.
2. IMMEDIATE LUMP SUM PAYMENT. If at any time before the entire amount of the Indebtedness is paid in full, Clients are successful in closing a sale of stock, notes or other securities or any other transaction or series of transactions pursuant to which Clients raise cash in an amount at least equal to $300,000, then not later than ten (10) days after the closing of such transaction or series of transactions, Clients will pay to Burr & Forman the full amount of the then remaining balance of the Indebtedness.
3. DEFAULT. Burr & Forman agrees that, so long as Clients make the payments referred to in paragraphs 1 and 2 in a timely fashion, Burr & Forman will not demand immediate payment of the entire balance of the Indebtedness owed to it. However, if Clients default in any of their obligations under paragraphs 1 or 2, then Burr & Forman may, at its option, declare the then-outstanding balance of the Indebtedness, plus interest at an annual rate of ten percent (10%), accruing from the date the invoices for the legal fees and expenses were first submitted to Clients for payment, immediately due and payable and demand full payment of the same. Burr & Forman expressly reserves all rights to institute legal action in order to collect any amount of the Indebtedness that remains unpaid, plus interest, costs and expenses.
4. AGREEMENT TO COOPERATE. Clients will fully cooperate with Burr & Forman in all matters requested relating to this agreement.
5. COLLECTION COSTS. If any suit for non-payment of the Indebtedness under this Agreement, or for collection of the same, results in judgment in favor of Burr & Forman,
Clients will pay all costs of collection, including, but not limited to, expert witness fees and expenses and reasonable attorneys' fees.
6. FORUM. Clients agree that the exclusive forum for any litigation stemming from this Agreement shall be the state and federal courts in Jefferson County, Alabama. Clients irrevocably submit themselves to the jurisdiction of these courts, and expressly waive any objections whatsoever to venue in these courts.
7. SEVERABILITY OF TERMS. If any term or condition of this Agreement or the application thereof to either party to any circumstance shall to any extent be declared invalid or unenforceable, neither the remainder of this Agreement nor the application of such term or condition to any other party or circumstance shall be affected thereby, and each remaining term or condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
8. SOLE AGREEMENT. This is the sole and complete agreement between Burr & Forman and Clients.
9. NO ORAL MODIFICATION. There are no oral agreements, and any modification to this Agreement must be in writing and signed by both parties hereto.
10. ALABAMA LAW CONTROLS. This Agreement shall be construed and interpreted in accordance with the laws of the State of Alabama.
11. FURTHER ACKNOWLEDGMENTS. The parties acknowledge and agree that this Agreement and its provisions shall be construed according to their common or ordinary meaning and without interpretive favor or prejudice to either party.
DATED this 14th day of February, 2008.
Perihelion Global, Inc.
/s/
John Beebe
Its: President
/s/
John Beebe
Accepted:
Burr & Forman, LLP
/s/
DATED THIS 15th DAY OF FEBRUARY, 2008. |
