Xxxxxxxx Xxxxxx and Xxxxxx Xxxxxxxxx also have Corporate Director's Agreements.
This agreement of Xx. Xxxxxxx'x serves as an example.
Agreement to Serve as Corporate Director
This agreement to serve as a corporate director (the "Agreement") is made
and entered into by and between Explorations Group, Inc., a Delaware corporation
("Explorations"), and Xxxxxxx X. Xxxxxxx, a Florida resident ("Xxx. Xxxxxxx").
Preamble:
Whereas, Xxx. Xxxxxxx was elected as a member of Explorations' board of
directors by written consent in lieu of the annual meeting of stockholders,
effective April 8, 2002 (the "Annual Meeting"); and
Whereas, Explorations has required, as a condition for service on its board
of directors, that all members enter into a form of agreement that delineates
the rights, duties and responsibilities of the members; and
Whereas, the Parties agree that this Agreement provides important
directives outlining the duties, obligations, responsibilities and rights that
are expected of members of Explorations' board of directors and Xxx. Xxxxxxx
desires to be elected as a member of Explorations' board of directors and to
serve thereon in compliance with the requirements of this Agreement and
Explorations' Certificate of Incorporation and By-Laws:
Now, Therefore, intending to be legally bound, the Parties agree that since
if Xxx. Xxxxxxx has been elected as a member of Explorations' board of directors
at the annual meeting of Explorations' shareholders for the current year, she is
bound by the following obligations and shall have the following rights:
Witnesseth:
Article I
Term, Renewals, Earlier Termination
1.1 Term.
(A) 1. Subject to the provisions set forth herein, the term of this Agreement
shall be deemed to commence immediately following Xxx. Xxxxxxx'x
election to Explorations' board of directors at the Annual Meeting and
shall continue until the latter of April 7, 2003 or the election,
qualification and assumption of office by Xxx. Xxxxxxx'x successor as
a member of Explorations' board of directors, unless earlier
terminated as provided in Explorations' certificate of incorporation
or bylaws, or as hereinafter set forth.
2. Notwithstanding anything in this agreement to the contrary, the term
of this Agreement will terminate if Xxx. Xxxxxxx is not re-elected at
the annual meeting of stockholders next following the Annual Meeting.
(B) In the event that Xxx. Xxxxxxx is reelected or otherwise serves as a member
of Explorations' board of directors after the annual meeting of
stockholders next following the Annual Meeting, then, unless a new
agreement pertaining to her role as a member of Explorations' board of
directors is entered into specifically superceding the provisions of this
Agreement, this Agreement shall be deemed to remain in effect for so long
as Xxx. Xxxxxxx serves as a member of Explorations' board of directors.
1.2 Earlier Termination.
(A) Explorations shall have the right to terminate this Agreement prior to the
expiration of its Term, subject to the provisions of Section 1.3, for the
following reasons:
(1) By vote of Explorations' shareholders:
In accordance with Section 141(k) of Delaware's General Corporation
Law (and except as provided therein) and pursuant to Article II,
Section 3(a) of the By-Laws of Explorations that at a meeting of
stockholders called expressly for this purpose, a director may be
removed, with or without cause, by the vote of the holders of 51% of
the shares then entitled to vote at an election of directors.
Page 194
(2) Discontinuance of Business:
In the event that Explorations discontinues operating its business,
this Agreement shall terminate as of the last day of the month on
which Explorations ceases operation with the same force and effect as
if such last day of the month were originally set as the termination
date hereof; provided, however, that a reorganization of Explorations
shall not be deemed a termination of its business.
(3) Death:
This Agreement shall terminate immediately on Xxx. Xxxxxxx'x death;
however, all accrued compensation at such time shall be promptly paid
to Xxx. Xxxxxxx'x estate.
1.3 Final Settlement.
Upon termination of this Agreement and payment to Xxx. Xxxxxxx of all
amounts due her hereunder, Xxx. Xxxxxxx or her representative shall execute and
deliver to Explorations on a form prepared by Explorations a receipt for such
sums and a release of all claims, except such claims as may have been submitted
pursuant to the terms of this Agreement and which remain unpaid, and shall
forthwith tender to Explorations all records, manuals and written procedures, as
may be required by Explorations for the continued conduct of its business.
Article II
Performance of Duties as a Director
2.1 Performance of Duties
(A) Xxx. Xxxxxxx shall perform her duties as a director, including her duties
as a member of any committee of Explorations' board of directors upon which
she may serve, pursuant to the requirements set forth in Explorations'
certificate of incorporation and By-Laws (its "Constituent Documents"), in
good faith, in a manner she reasonably believes to be in the best interests
of Explortaions, and with such care as is legally required for members of
boards of directors under the laws of the State of Delaware and the United
States Securities and Exchange Commission, (the "Commission") unless a
higher standard of care is specified in Explorations' Constituent
Documents.
(B) In performing her duties, Xxx. Xxxxxxx shall be entitled to rely on
information, opinions, reports or statements, including financial
statements and other financial data, in each case prepared or presented by:
(1) One or more officers or employees of Explorations whom Xxx. Xxxxxxx
reasonably believes to be reliable and competent in the matters
presented;
(2) Legal counsel, public accountants or other persons as to matters which
Xxx. Xxxxxxx reasonably believes to be within such persons'
professional or expert competence; or
(3) A committee of Explorations' board of directors upon which she does
not serve, duly designated in accordance with a provision of
Explorations' certificate of incorporation or By-Laws, as to matters
within its designated authority, which committee Xxx. Xxxxxxx
reasonably believes to merit confidence.
(C) Xxx. Xxxxxxx shall not be considered to be acting in good faith if she has
knowledge concerning the matter in question that would cause such reliance
described in Section 2.1(B) to be unwarranted.
(D) If Xxx. Xxxxxxx is present at a meeting of Explorations' board of directors
at which action on any corporate matter is taken, it shall be presumed that
she assented to the action taken unless she votes against such action or
abstains from voting in respect thereto because of an asserted conflict of
interest.
Explorations Group, Inc. Agreement to Serve as Director - 2
Page 195
(E) If Xxx. Xxxxxxx is requested to provide comments on any corporate matters
through a written request delivered by hand, mail, fax or e-mail, then,
unless she affirmatively provides written comments thereto or specifies in
a written response that she is unable or unwilling to provide comments
thereto, she shall be presumed to have approved the matter as accurate,
complete and not misleading, and if she has indicated her inability or
unwillingness to comment on more than three occasions within any fiscal
year, she shall be presumed to have refused to perform her duties as a
member of Explorations' board of directors in a manner justifying her
removal therefrom under this Agreement.
2.2 Director Conflicts of Interest
(A) Neither Xxx. Xxxxxxx nor any affiliate of her will enter into any contract
or other transaction with Explorations unless the fact of such relationship
or interest is disclosed or known to Explorations' board of directors or
committee which authorizes, approves or ratifies the contract or
transaction and it is approved by a vote or consent sufficient for the
purpose without counting the vote or consent of Xxx. Xxxxxxx; and, if
stockholder approval is required, the fact of such relationship or interest
is disclosed or known to the stockholders entitled to vote and they
authorize, approve or ratify such contract or transaction by vote or
written consent.
(B) Xxx. Xxxxxxx may be counted in determining the presence of a quorum at a
meeting of Explorations' board of directors or a committee thereof which
authorizes, approves or ratifies such contract or transaction.
2.3 Performance and Attendance
(A) Xxx. Xxxxxxx will serve on Explorations' board of directors, on
Explorations' audit committee, as chairman, on Explorations' regulatory
affairs committees, or on such committees of Explorations' board of
directors as to which she is appointed and will discharge her duties
thereunder in good faith, using her best efforts on behalf of Explorations
and its stockholders.
(B) Xxx. Xxxxxxx shall use her best efforts to participate in a timely manner
in all meetings of Explorations' board of directors or of committees
thereof to which she has been appointed or elected, and if unavailable in
person, to make arrangements to participate by teleconference or other
legally available means.
(C) In the event that Xxx. Xxxxxxx fails to participate in a meeting of
Explorations' board of directors or of committees thereof to which she has
been appointed or elected, Xxx. Xxxxxxx shall promptly acquaint himself
with all matters transacted at such meeting and if practical, shall provide
the board of directors or committee involved with supplemental input and
advice on all such matters, and if appropriate and possible, shall request
reconsideration of any material matters as to which her participation would
have affected the result of actions taken.
(D) In the event that Xxx. Xxxxxxx misses three (3) of the regular monthly
meetings of Explorations' board of directors, or three (3) consecutive
special meetings of the board of directors, or three (3) consecutive
meetings of any committee to which she has been appointed or elected, Xxx.
Xxxxxxx will be deemed to have resigned from the board of directors prior
to the expiration of the term of this Agreement based on an inability to
dedicate required time to the affairs of Explorations, and this Agreement
shall be presumptively be deemed the instrument of such resignation.
Explorations Group, Inc. Agreement to Serve as Director - 3
Page 196
(E) Xxx. Xxxxxxx shall be responsible, together with the other members of the
board of directors, for review and approval prior to filing of all data
that Explorations is required to file with the Commission, with the United
States Internal Revenue Service (the "Service") and with comparable state
and local agencies.
(F) If serving as a member of the regulatory affairs or audit committees, Xxx.
Xxxxxxx shall be responsible for using reasonable efforts to assist its
chairman to assure that Explorations and all of its subsidiaries develop
and implement information gathering, retention and transmittal procedures
that comply with all applicable legal and auditing requirements, that
Explorations and its subsidiaries promptly transmit required data to
Explorations' auditors and legal counsel and that Explorations' auditors
and legal counsel prepare and pass upon materials that Explorations is
required to file with the Commission or the Service, on a timely basis,
adequate for review, comment and correction by all appropriate personnel,
including management of Explorations and its subsidiaries, as well as the
members of their boards of directors, attorneys and advisors, at least
three business days prior to the legally mandated filing dates.
(G) If serving as a member of the audit committee, Xxx. Xxxxxxx shall be
responsible, together with the other members of the audit committee, for
suggesting auditor candidates to Explorations' board of directors and
stockholders and for rejecting any auditors that any member of the audit
committee deems unsatisfactory based on their qualifications, reputation,
prices or geographic location, provided that such member must specify in
writing all reasons for such rejection and the committee, voting as a
whole, must pass upon such rejection by majority vote, forwarding such
result to the board of directors for appropriate action.
2.4 Resignation
Unless she is the sole serving member of Explorations' board of directors,
Xxx. Xxxxxxx may resign at any time by providing Explorations' board of
directors with written notice indicating Xxx. Xxxxxxx'x intention to resign and
the effective date thereof; provided, however, that resignation, whether
voluntary or presumptive (as provided above) shall result in a forfeiture of all
rights to compensation under this Agreement, other than as to compensation that
has accrued pursuant to the provisions of this Agreement.
Article III
Compensation
3.1 Member Compensation
(A) Xxx. Xxxxxxx shall be compensated for her services as a member of
Explorations' board of directors and committees, as follows:
(1) (a) For basic service as a member of our Company's board of
directors, 1,250 shares of Explorations' common stock per month,
which shall be deemed earned on the last day of the month served.
(b) For service on the audit or executive committee an additional 625
shares per month, which shall be deemed earned on the last day of
the month served.
(c) For service on any other committee an additional 313 shares per
month, which shall be deemed earned on the last day of the month
served.
(d) For service as the chair of the audit or executive committee an
additional 250 shares per month, which shall be deemed earned on
the last day of the month served.
(e) For service as the chair of any other committee an additional 125
shares per month, which shall be deemed earned on the last day of
the month served.
Explorations Group, Inc. Agreement to Serve as Director - 4
Page 197
(f) For attendance at any meeting of the board of directors or a
committee thereof, in person, an additional 125 shares per
meeting.
(g) For attendance at any meeting of the board of directors or a
committee thereof, in any manner other than in person, an
additional 63 shares per meeting.
(B) The foregoing compensation will be subject to the condition precedent that
Xxx. Xxxxxxx comply on a timely basis with all personal reporting
obligations to the Commission pertaining to her role with Explorations and
that Xxx. Xxxxxxx serve in the designated positions providing all of the
services required thereby prudently and in good faith.
3.2 Contingent Compensation
In addition to the compensation described above and in Section 3.1 (unless
comparable compensation is provided for under the terms of a separate employment
or consulting agreement) or such compensation cannot be paid because of
conflicts with applicable laws:
(A) In the event that Xxx. Xxxxxxx arranges or provides funding for
Explorations on terms more beneficial than those reflected in Explorations'
current principal financing agreements, copies of which are included among
Explorations' records available through the SEC's XXXXX web site, Xxx.
Xxxxxxx shall be entitled, at her election, to either:
(1) A fee equal to 5% of such savings, on a continuing basis; or
(2) If equity funding is provided through Xxx. Xxxxxxx or any affiliates
of her, a discount of 5% from the lowest price at which such
securities are offered to any other person for the subject equity
securities if they are issuable as free trading securities, or a
discount of 25% from the lowest price at which such securities are
offered to any other person for the subject equity securities if they
are issuable as restricted securities (as the term restricted is used
for purposes of SEC Rule 144); and
(3) If equity funding is arranged for Explorations by Xxx. Xxxxxxx and
Explorations is not obligated to pay any other source of compensation
in conjunction therewith, other than the normal commissions charged by
broker dealers in securities in compliance with the compensation
guidelines of the NASD, Xxx. Xxxxxxx shall be entitled to a bonus in a
sum equal to 5% of the net proceeds of such funding.
(B) In the event that Xxx. Xxxxxxx arranges for an acquisition by Explorations,
then Xxx. Xxxxxxx will be entitled to compensation in an amount, in shares
of Explorations' common stock, equal to 5% of the net consideration paid by
Explorations for such acquisition, provided that if such compensation is
payable to more than one person, then they shall share such compensation,
pro rata, based on the nature of their entitlement to such compensation.
(C) In the event that Xxx. Xxxxxxx generates business for Explorations, then,
on any sales resulting therefrom, Xxx. Xxxxxxx shall be entitled to a
commission equal to 5% of the net income derived by Explorations therefrom,
on a continuing basis.
3.3 Exempt Nature of Securities to be Issued
The securities to be issued as compensation under this Agreement (the
"Securities") will be issued without registration under the provisions of
Section 5 of the Securities Act or the securities regulatory laws and
regulations of the State of Florida (the "Florida Act") pursuant to exemptions
provided under Section 4(6) of the Securities Act and comparable provisions of
the Florida Act;
Explorations Group, Inc. Agreement to Serve as Director - 5
Page 198
(A) Xxx. Xxxxxxx shall be responsible for preparing and filing any reports
concerning this transaction with the Commission and with Florida Division
of Securities, and payment of any required filing fees (none being
expected);
(B) All of the Securities will bear legends restricting their transfer, sale,
conveyance or hypothecation unless such Securities are either registered
under the provisions of Section 5 of the Securities Act and under the
Florida Act, or an opinion of legal counsel, in form and substance
satisfactory to legal counsel to Explorations, is provided to Explorations'
General Counsel to the effect that such registration is not required as a
result of applicable exemptions therefrom;
(C) Explorations' transfer agent shall be instructed not to transfer any of the
Securities unless the General Counsel for Explorations advises it that such
transfer is in compliance with all applicable laws;
(D) Xxx. Xxxxxxx is acquiring the Securities for her own account, for
investment purposes only, and not with a view to further sale or
distribution; and
(E) Xxx. Xxxxxxx or her advisors have examined information concerning
Explorations contained on the Commission's Internet web site at
xxx.xxx.xxx, in the XXXXX archives, as well as Explorations' books and
records and have questioned Explorations' officers and directors as to such
matters involving Explorations as Xxx. Xxxxxxx deemed appropriate.
3.4 Indemnification.
Explorations will defend, indemnify and hold Xxx. Xxxxxxx harmless from all
liabilities, suits, judgments, fines, penalties or disabilities, including
expenses associated directly therewith (e.g., legal fees, court costs,
investigative costs, witness fees, etc.) resulting from any reasonable actions
taken by her in good faith on behalf of Explorations, its affiliates or for
other persons or entities at the request of the board of directors of
Explorations, to the fullest extent legally permitted, and in conjunction
therewith, shall assure that all required expenditures are made in a manner
making it unnecessary for Xxx. Xxxxxxx to incur any out of pocket expenses;
provided, however, that Xxx. Xxxxxxx permits Explorations to select and
supervise all personnel involved in such defense and that Xxx. Xxxxxxx waives
any conflicts of interest that such personnel may have as a result of also
representing Explorations, its stockholders or other personnel and agrees to
hold Explorations harmless from any matters involving such representation,
except such as involve fraud or bad faith.
Article Four
Special Covenants
4.1 Confidentiality.
Xxx. Xxxxxxx acknowledges that, in and as a result of her duties hereunder,
she will be developing for Explorations, making use of, acquiring and/or adding
to, confidential information of special and unique nature and value relating to
such matters as Explorations' trade secrets, systems, procedures, manuals,
confidential reports, personnel resources, strategic and tactical plans,
advisors, clients, investors and funders; consequently, as material inducement
to the entry into this Agreement by Explorations, Xxx. Xxxxxxx hereby covenants
and agrees that she shall not, at anytime during or following the terms of her
service as a member of Explorations' board of directors, directly or indirectly,
personally use, divulge or disclose, for any purpose whatsoever, any of such
confidential information which has been obtained by or disclosed to her as a
result of her association with Explorations or its affiliates.
4.2 Special Remedies.
In view of the irreparable harm and damage which would undoubtedly occur to
Explorations as a result of a breach by Xxx. Xxxxxxx of the covenants or
agreements contained in this Article Four, and in view of the lack of an
adequate remedy at law to protect Explorations' interests, Xxx. Xxxxxxx hereby
covenants and agrees that Explorations shall have the following additional
rights and remedies in the event of a breach or threatened breach hereof:
Explorations Group, Inc. Agreement to Serve as Director - 6
Page 199
(A) Xxx. Xxxxxxx hereby consents to the issuance of a permanent injunction
enjoining her from any violations of the covenants set forth in this
Article Four; and
(B) Because it is impossible to ascertain or estimate the entire or exact cost,
damage or injury which Explorations may sustain prior to the effective
enforcement of such injunction, Xxx. Xxxxxxx hereby covenants and agrees to
pay over to Explorations, in the event she violates the covenants and
agreements contained in this Article Four, the greater of:
(1) Any payment or compensation of any kind received by her because of
such violation before the issuance of such injunction, or
(2) The sum of One Thousand ($1,000.00) Dollars per violation, which sum
shall be liquidated damages, and not a penalty, for the injuries
suffered by Explorations as a result of such violation. The Parties
agree that such liquidated damages are not intended as the exclusive
remedy available to Explorations for any breach of the covenants and
agreements contained in this Article Four prior to the issuance of an
injunction, and the Parties recognize that the only adequate remedy to
protect Explorations from the injury caused by such breach would be
injunctive relief.
4.3 Cumulative Remedies.
Xxx. Xxxxxxx hereby irrevocably agrees that the remedies described in
Section 4.2 hereof shall be in addition to, and not in limitation of, any of the
rights or remedies to which Explorations is or may be entitled, whether at law
or in equity, under or pursuant to this Agreement.
4.4 Acknowledgment of Reasonableness.
Xxx. Xxxxxxx hereby represents, warrants and acknowledges that she has
carefully read and considered the provisions of this Article Four and, having
done so, agrees that the restrictions set forth herein are fair and reasonable
and are reasonably required for the protection of the interests of Explorations,
its officers, other directors and employees; consequently, in the event that any
of the above-described restrictions shall be held unenforceable by any court of
competent jurisdiction, Xxx. Xxxxxxx hereby covenants, agrees and directs such
court to substitute a reasonable, judicially enforceable limitation in place of
any limitation deemed unenforceable, and Xxx. Xxxxxxx hereby covenants and
agrees that if so modified, the covenants contained in this Article Four shall
be as fully enforceable as if they had been set forth herein directly by the
Parties. In determining the nature of this limitation, Xxx. Xxxxxxx hereby
acknowledges, covenants and agrees that it is the intent of the Parties that a
court adjudicating a dispute arising hereunder recognize that the Parties desire
that this covenant not to compete be imposed and maintained to the greatest
extent possible.
4.5 Unauthorized Acts.
Xxx. Xxxxxxx hereby covenants and agrees that she will not do any act or
incur any obligation on behalf of Explorations of any kind whatsoever, except as
expressly authorized by its board of directors or by its stockholders pursuant
to duly adopted stockholder action.
4.6 Covenant not to Disparage.
Xxx. Xxxxxxx hereby irrevocably covenants and agrees that during the term
of this Agreement and after its termination, she will refrain from making any
remarks that could be construed by anyone, under any circumstances, as
disparaging, directly or indirectly, specifically, through innuendo or by
inference, whether or not true, about Explorations, its constituent members, or
its officers, directors, stockholders, employees, agent or affiliates, whether
related to the business of Explorations, to other business or financial matters
or to personal matters.
Explorations Group, Inc. Agreement to Serve as Director - 7
Page 200
Article V
Agreement to Comply with Legal Restrictions.
5.1 Explorations Securities.
(A) Xxx. Xxxxxxx is the record and beneficial owner of the Explorations
securities shown on the signature page hereto, which at the date hereof are
free and clear of any liens, claims, options, charges or other
encumbrances; does not beneficially own any other Explorations securities;
and has full power and authority to make, enter into and carry out the
terms of this Agreement.
(B) Xxx. Xxxxxxx agrees that any Explorations securities that she purchases or
with respect to which she otherwise acquires record or beneficial ownership
after the date of this Agreement ("New Explorations Securities") shall be
subject to the terms and conditions of this Agreement to the same extent as
if they were owned prior to the effective date of this Agreement.
(C) Xxx. Xxxxxxx has full power and authority to execute this Agreement, to
make the representations, warranties and covenants herein contained and to
perform all of the obligations hereunder.
(D) Xxx. Xxxxxxx has no present plan or intention (a "Plan") to sell, transfer,
exchange, pledge or otherwise dispose of, including by means of a
distribution by a partnership to its partners, or a corporation to its
stockholders, or any other transaction which results in a reduction in the
risk of ownership (any of the foregoing being hereinafter referred to
generically as a "Sale") of any of the Explorations securities that Xxx.
Xxxxxxx currently owns or may acquire during the term of this Agreement, or
any securities that may be paid as a dividend or otherwise distributed
thereon with respect thereto or issued or delivered in exchange or
substitution therefor.
(E) If any of Xxx. Xxxxxxx'x representations in this Agreement cease to be true
at any time during the term of this Agreement, Xxx. Xxxxxxx will deliver to
Explorations' general counsel a written statement to that effect,
specifying the nature of the change signed by Xxx. Xxxxxxx.
5.2 Transfer or Encumbrance.
(A) Xxx. Xxxxxxx agrees not to transfer, sell, exchange, pledge or otherwise
dispose of or encumber Xxx. Xxxxxxx'x Explorations securities or any New
Explorations Securities acquired or to make any offer or agreement relating
thereto during the time that Xxx. Xxxxxxx serves on Explorations' board of
directors and for an additional period of 90 days after the term of this
agreement, except:
(1) During such periods following the filing by Explorations of reports
with the Commission as may be determined by the regulatory compliance
committee of Explorations' board of directors to provide current
information required to avoid violation of restrictions under the
Securities Act and the Securities and Exchange Commission Exchange Act
of 1934, as amended (the "Exchange Act"), against trading on inside
information.
(2) In full compliance with the requirements of:
(a) Rule 144 promulgated by the Commission under authority granted by
the Securities Act;
(b) Sections 13D and 16(a) of the Exchange Act, including
requirements pertaining to timely filing of Commission Forms 3, 4
and 5 or Schedule 13-D; and
(3) In full compliance with the procedures established by Explorations
(including requirements imposed upon its transfer agent) to assure
compliance with the foregoing.
Explorations Group, Inc. Agreement to Serve as Director - 8
Page 201
(B) No transactions permitted pursuant to Section 5.2(A) shall be effected
until:
(1) Legal counsel representing Xxx. Xxxxxxx (which legal counsel is
reasonably satisfactory to Explorations) shall have advised
Explorations in a written opinion letter satisfactory to Explorations
and Explorations' legal counsel, and upon which Explorations and its
legal counsel may rely, that no registration under the Securities Act
is required in connection with the proposed sale, transfer or other
disposition and that all requirements under the Exchange Act,
including Sections 13 and 16 thereof have been complied with; or
(2) A registration statement under the Securities Act covering the
Explorations' stock proposed to be sold, transferred or otherwise
disposed of, describing the manner and terms of the proposed sale,
transfer or other disposition, and containing a current prospectus,
shall have been filed with the Commission and made effective under the
Securities Act; or
(3) An authorized representative of the Commission shall have rendered
written advice to Xxx. Xxxxxxx (sought by Director-Nominee or
Director-Nominee's legal counsel, with a copy thereof and all other
related communications delivered to Explorations) to the effect that
the Commission would take no action, or that the staff of the
Commission would not recommend that the Commission take any action,
with respect to the proposed disposition if consummated; or
(4) Explorations' general counsel and president shall have specifically
consented to the transaction in writing pursuant to authority
delegated in a specific resolution of the regulatory affairs committee
of Explorations' board of directors.
(C) Xxx. Xxxxxxx also understands and agrees that stop-transfer instructions
will be given to Explorations' transfer agent with respect to certificates
evidencing her Explorations securities and that there will be placed on the
certificates evidencing her Explorations securities legends stating in
substance: "The securities represented by this certificate were issued
without registration under the Securities Act of 1933, as amended, or
comparable state laws in reliance on the provisions of Section 4(1), 3(b)
or 4(2) of such act, and comparable state law provisions or they have been
held by a person deemed a control person under Commission Rule 144 and
subject to reporting obligations under Section 13D of the Exchange Act and
to reporting obligations and trading restrictions under Section 16(a) of
the Exchange Act. These securities may not be transferred, pledged or
hypothecated unless they are first registered under applicable federal,
state or foreign laws, or the transaction is demonstrated to be exempt from
such requirements to the Company's satisfaction, and, all required reports
pertaining thereto, including Commission Forms 3, 4, 5 and 144 and
Commission Schedule 13D have been filed with the Commission."
5.3 No Proxy Solicitations.
Xxx. Xxxxxxx will not, and will not permit any entity under her control to:
(A) Solicit proxies or become a "participant" in a "solicitation" (as such
terms are defined in Regulation 14A under the Exchange Act) with respect to
any meetings of Explorations' stockholders;
(B) Initiate a stockholders' vote or action by consent of Explorations
stockholders with respect to any stockholders' action; or
(C) Become a member of a "group" (as such term is used in Section 13(d) of the
Exchange Act) with respect to any voting securities of Explorations.
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5.4 No Limitation on Discretion as Director.
This Article Five is intended solely to apply to the exercise by Xxx.
Xxxxxxx in her individual capacity of rights attaching to ownership of
Explorations securities, and nothing herein shall be deemed to apply to, or to
limit in any manner the discretion of Xxx. Xxxxxxx with respect to, any action
which may be taken or omitted by her acting in her fiduciary capacity as a
member of Explorations' board of directors or any committee thereof.
Article VI
Miscellaneous
6.1 Notices.
(a) All notices, demands or other communications hereunder shall be in writing,
and unless otherwise provided, shall be deemed to have been given on the
first business day after mailing by registered or certified mail, return
receipt requested, postage prepaid, addressed as follows:
To Xxx. Xxxxxxx :
At the contact information provided in Section 6.19
To Explorations:
Explorations Group, Inc.
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000-X;
Xxxx Xxxxx, Xxxxxxx 00000
Telephone (000) 000-0000, Fax (000) 000-0000;
and, e-mail xxxxxxxx@xxx.xxx
Attention: Xxxxxxxx Xxxxxx, President;
with a copy to
The Yankee Companies, LLC.
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000;
Xxxx Xxxxx, Xxxxxxx 00000
Telephone (000) 000-0000, Fax (000) 000-0000; and,
e-mail xxxxx@xxxxxxxxxxxxxxx.xxx;
Attention: Xxxxxxx Xxxxx Xxxxxx, President
or such other address or to such other person as any Party shall designate
to the other for such purpose in the manner hereinafter set forth.
(b) (1) The Parties acknowledge that the Yankee Companies, LLC., a Florida
limited liability company ("Yankees") serves as a strategic consultant
to Explorations and has acted as scrivener for the Parties in this
transaction but that Yankees is neither a law firm nor an agency
subject to any professional regulation or oversight.
(2) Because of the inherent conflict of interests involved, Yankees has
recommended to all of the Parties that they retain retain independent
legal and accounting counsel to review this Agreement and its exhibits
and incorporated materials on their behalf.
(c) The decision by any Party not to use the services of legal counsel in
conjunction with this transaction shall be solely at that Party's own risk,
each Party acknowledging that applicable rules of the Florida Bar prevent
Explorations' general counsel, who has reviewed, approved and caused
modifications on behalf of Explorations, from representing anyone other
than Explorations in this transaction.
6.2 Amendment.
(A) No modification, waiver, amendment, discharge or change of this Agreement
shall be valid unless the same is in writing and signed by the Party
against which the enforcement of said modification, waiver, amendment,
discharge or change is sought.
(B) This Agreement may not be modified without the consent of a majority in
interest of Explorations' stockholders.
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6.3 Merger.
(A) This instrument contains all of the understandings and agreements of the
Parties with respect to the subject matter discussed herein.
(B) All prior agreements, whether written or oral, are merged herein and shall
be of no force or effect.
6.4 Survival.
The several representations, warranties and covenants of the Parties
contained herein shall survive the execution hereof and shall be effective
regardless of any investigation that may have been made or may be made by or on
behalf of any Party.
6.5 Severability.
If any provision or any portion of any provision of this Agreement, or the
application of such provision or any portion thereof to any person or
circumstance shall be held invalid or unenforceable, the remaining portions of
such provision and the remaining provisions of this Agreement or the application
of such provision or portion of such provision as is held invalid or
unenforceable to persons or circumstances other than those to which it is held
invalid or unenforceable, shall not be affected thereby.
6.6 Governing Law.
This Agreement shall be governed by and construed, interpreted and enforced
in accordance with the laws of the State of Delaware, except for any choice of
law provisions that would result in the application of the law of another
jurisdiction, and except for laws involving the fiduciary obligations of
Explorations' officers and Director-Nominees, which shall be governed under
Florida law.
6.7 Third Party Reliance.
Legal counsel to and accountants for the Parties shall be entitled to rely
upon this Agreement.
6.8 Venue.
Any proceeding arising between the Parties in any matter pertaining or
related to this Agreement shall, to the extent permitted by law, be held in
Broward County, Florida.
6.9 Litigation.
(A) In any action between the Parties to enforce any of the terms of this
Agreement or any other matter arising from this Agreement, the prevailing
Party shall be entitled to recover its costs and expenses, including
reasonable attorneys' fees up to and including all negotiations,
proceedings and appeals, whether or not formal proceedings are initiated.
(B) In the event of any dispute arising under this Agreement, or the
negotiation thereof or inducements to enter into the Agreement, the dispute
shall, at the request of any Party, be exclusively resolved through the
following procedures:
(1) (a) First, the issue shall be submitted to mediation before
Mediation, Inc., a mediation service in Broward County, Florida,
to be selected by lot from four alternatives to be provided, two
by Explorations and two by Xxx. Xxxxxxx .
(b) The mediation efforts shall be concluded within ten business days
after their initiation unless the Parties unanimously agree to an
extended mediation period;
Explorations Group, Inc. Agreement to Serve as Director - 11
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(2) In the event that mediation does not lead to a resolution of the
dispute, then at the request of any Party, the Parties shall submit
the dispute to binding arbitration before an arbitration service
located in Broward County, Florida to be selected by lot, from four
alternatives to be provided, two by Explorations and two by Xxx.
Xxxxxxx.
(3) (a) Expenses of mediation shall be borne by Explorations, if
successful.
(b) Expenses of mediation, if unsuccessful, and of arbitration shall
be borne by the Party against whom the arbitration decision is
rendered.
(c) If the terms of the arbitral award do not establish a prevailing
Party, then the expenses of unsuccessful mediation and of
arbitration shall be borne equally by the Parties.
6.10 Benefit of Agreement.
(A) This Agreement may not be assigned by Xxx. Xxxxxxx without the prior
written consent of Explorations.
(B) Subject to the restrictions on transferability and assignment contained
herein, the terms and provisions of this Agreement shall be binding upon
and inure to the benefit of the Parties, their successors, assigns,
personal representative, estate, heirs and legatees.
6.11 Interpretation.
(A) The words "include," "includes" and "including" when used herein shall be
deemed in each case to be followed by the words "without limitation."
(B) The headings contained in this Agreement are for reference purposes only
and shall not affect in any way the meaning or interpretation of this
Agreement.
(C) The captions in this Agreement are for convenience and reference only and
in no way define, describe, extend or limit the scope of this Agreement or
the intent of any provisions hereof.
(D) All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular or plural, as the identity of the
Party or Parties, or their personal representatives, successors and
assigns, or the context may require.
(E) The Parties agree that they have been represented by counsel during the
negotiation and execution of this Agreement and, therefore, waive the
application of any law, regulation, holding or rule of construction
providing that ambiguities in an agreement or other document will be
construed against the party drafting such agreement or document.
6.12 Further Assurances.
The Parties hereby agree to do, execute, acknowledge and deliver, or cause
to be done, executed, acknowledged and delivered, and to perform all such acts
and deliver all such deeds, assignments, transfers, conveyances, powers of
attorney, assurances, receipts, records and other documents as may, from time to
time, be required herein to effect the intent and purposes of this Agreement.
Explorations Group, Inc. Agreement to Serve as Director - 12
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6.13 Status.
Nothing in this Agreement shall be construed or shall constitute an agency,
employment, partnership, or joint venture relationship.
6.14 Counterparts.
(A) This Agreement may be executed in any number of counterparts.
(B) Execution by exchange of facsimile transmission shall be deemed legally
sufficient to bind the signatory; however, the Parties shall, for aesthetic
purposes, prepare a fully executed original version of this Agreement,
which shall be the document filed with the Commission.
6.15 License.
(A) This Agreement is the property of Yankees and the use hereof by the Parties
is authorized hereby solely for purposes of this transaction.
(B) The use of this form of agreement or of any derivation thereof without
Yankees' prior written permission is prohibited.
6.16 Waiver.
No waiver by any party hereto of any condition or of any breach of any
provision of this Agreement shall be effective unless in writing and signed by
each party hereto.
6.17 Indemnification.
(A) Each Party hereby irrevocably agrees to indemnify and hold the other Party
harmless from any and all liabilities and damages (including legal or other
expenses incidental thereto), contingent, current, or inchoate to which
that Party may become subject as a direct, indirect or incidental
consequence of any action by the indemnifying Party or as a consequence of
the failure of the indemnifying Party to act, whether pursuant to
requirements of this Agreement or otherwise.
(B) In the event it becomes necessary to enforce this indemnity through an
attorney, with or without litigation, the successful Party shall be
entitled to recover from the indemnifying Party all costs incurred
including reasonable attorneys' fees throughout any negotiations, trials or
appeals, whether or not any suit is instituted.
6.18 Consultation with Counsel.
Xxx. Xxxxxxx has carefully read this Agreement and discussed its
requirements and other applicable limitations upon the sale, transfer or other
disposition of Explorations securities to the extent she felt necessary with her
own legal counsel.
6.19 Information Concerning Xxx. Xxxxxxx'x Share Ownership.
(A) Explorations securities beneficially owned by Xxx. Xxxxxxx as of the date
of this agreement:
(1) 12,500 shares of Explorations common stock; and
(2) ___________ shares of Explorations common stock subject to options,
warrants or other rights; and
(3) ___________ other Explorations securities, as specifically described
in exhibit 6.19 annexed hereto and made a part hereof, if any.
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(B) (1) Domicile Address: 000 Xxxxxxxxx 00xx Xxxxxx, Xxxxx, Xxxxxxx 00000
Street address, City, Zip code
(2) Telephone, fax and e-mail: (000) 000-0000; (000) 000-0000 and
xxxxxxxxxx@xxxxxxxxxxxxxxx.xxx
IN WITNESS WHEREOF, Xxx. Xxxxxxx and Explorations have caused this
Agreement to be executed by themselves or their duly authorized respective
officers, effective as of the last date set forth below:
Signed, sealed and delivered
In Our Presence:
/s/ Pearl Audit /s/
----------------------------
/s/ Xxxxx Xxx Xxxxxxxx /s/
---------------------------- /s/ Xxxxxxx X. Xxxxxxx /s/
Xxxxxxx X. Xxxxxxx
Dated: April 8, 2002
/s/ Xxxxx Xxxxxxxx /s/ Explorations Group, Inc.
----------------------------
/s/ Xxxx Xxxxxxx /s/
---------------------------- By: /s/ Xxxxxxxx Xxxxxx /s/
Xxxxxxxx Xxxxxx, President
(Corporate Seal)
Attest:/s/ Xxxxxxx X. Xxxxxxx /s/
Xxxxxxx X. Xxxxxxx, Secretary
Dated: April 8, 2002
Explorations Group, Inc. Agreement to Serve as Director - 14
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Section 6.19 reads as follows for:
Xxxxxxxx Xxxxxx
6.19 Information Concerning Xxx. Xxxxxxx'x Share Ownership.
(A) Explorations securities beneficially owned by Xxx. Xxxxxxx as of the date
of this agreement:
(1) 514,000 shares of Explorations common stock; and
(2) _______ shares of Explorations common stock subject to options,
warrants or other rights; and
(3) 200,000 other Explorations securities, as specifically described in
exhibit 6.19 annexed hereto and made a part hereof, if any. Shares
held by Blue Lake Capital corp., which I am President of.
(B) (1) Domicile Address: 0000 Xxxxx Xxxxxxx Xxxxx, Xxxxx 000-X, Xxxx Xxxxx,
Xxxxxxx 00000 Street address, City, Zip code
(2) Telephone, fax and e-mail: (000) 000-0000, (000) 000-0000,
xxxxxxxx@xxxxxxxxxxx.xxx
Section 6.19 reads as follows for:
Xxxxxx Xxxxxxxxx
6.19 Information Concerning Xxx. Xxxxxxx'x Share Ownership.
(A) Explorations securities beneficially owned by Xxx. Xxxxxxx as of the date
of this agreement:
(1) 0 shares of Explorations common stock; and
(2) 0 shares of Explorations common stock subject to options,
warrants or other rights; and
(3) 0 other Explorations securities, as specifically described
in exhibit 6.19 annexed hereto and made a part hereof, if any.
(B) (1) Domicile Address, Street address, City, Zip code: 0000 Xxxx Xxxxxxx
Xxxx Xxxxxxxxx, Xxxxxxxxxx Xxxxx, Xxxxxxx 00000
(2) Telephone, fax and e-mail:(000) 000-0000, (000) 000-0000
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