EXHIBIT 10.4
LETTER AGREEMENT BETWEEN THE REGISTRANT AND XXXX
XXXXXXXX, DATED JANUARY 15, 2004
[Logo of New Millennium Media International]
NMMI
NEW MILLENNIUM MEDIA INTERNATIONAL
January 15, 2004
Xxxx Xxxxxxxx
000 Xxxxx Xxxxxx Xxxxxx #000
Xxxxxx Xxxxx, XX 00000
Fax; 000-000-0000
RE: Letter Agreement Between New Millennium Media International, Inc.
and Xxxx Xxxxxxxx
Dear Xx. Xxxxxxxx:
This Letter Agreement (the "Letter Agreement") is entered into on this
16th day of January, 2004 between New Millennium Media International, Inc.
("NMMI") and Xxxx Xxxxxxxx ("Xxxxxxxx") (collectively referred to herein as the
"Parties").
WHEREAS, Xxxxxxxx'x assignment (the "Assignment") of all of his right,
title and interest in the revenue of OnScreen Large Scale Video Display ("OSD"),
which equals twenty five percent (25%) of the total revenue of OSD and includes
certain payments (the "Payments") due to Xxxxxxxx pursuant to the Contract and
License Agreement between NMMI and Xxxxxxxx dated July 23, 2001 (the "license
Agreement") (attached hereto as Exhibit A) (the "Xxxxxxxx Interest"), only
becomes valid upon Fusion Three, LLC's ("F3") satisfaction of all payment
obligations as set forth in paragraphs 2 and 3 of the Option to Purchase
Contract Rights between F3 and Xxxxxxxx, dated July 16, 2003 (the "Option
Contract") (attached hereto as Exhibit B);
WHEREAS, F3 never satisfied the obligations set forth in paragraphs 2 and
3 of the Option Contract; therefore the Assignment, as embodied in Exhibit B to
the Option Contract, is invalid;
WHEREAS, in order to exercise the option, F3 is required to pay five
hundred thousand dollars ($500,000) (the "Assignment Purchase Price"), which
includes the option fee (the "Option Fee") of one hundred thousand dollars
($100,000), which has previously been paid, leaving a remaining balance of four
hundred thousand dollars ($400,000) owing and required to be paid in order to
exercise the option pursuant to paragraphs 2 and 3 of the Option Contract (the
"Assignment Conditions");
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WHEREAS, F3's option exercise period commenced at 12:01 am Eastern
Standard Time on August 1, 2003 and shall terminate at 12:00 am Eastern Standard
Time on April 30, 2004 (the "Option Period"), as set forth in paragraph 2 of the
Option Contract; and
WHEREAS, NMMI is able to terminate F3's option to purchase the Xxxxxxxx
Interest (the "F3 Option") pursuant to paragraph 8 of the Option Contract;
NOW, THEREFORE, in recognition of the above and for other good and
valuable consideration, the Parties do freely, willingly, and upon the advice
and consent of counsel, enter into this Letter Agreement, and stipulate,
covenant, warrant, and agree as follows:
1. Option Period Consent Required. The NMMI Acceptance of Contractual
Assignment between NMMI, F3, and Xxxxxxxx, dated July 11, 2003 (attached hereto
as Exhibit C), is understood by the Parties to address paragraph 17(c) of the
License Agreement, and it is further understood by the Parties that there would
be a separate consent required for any assignment of an interest during the
Option Period, and if at any time during the Option Period it became apparent
that NMMI is unable or unwilling to consent to the Assignment, the F3 Option
shall terminate.
2. Unwilling and Unable to Consent. NMMI is now unable and unwilling to
consent to the Assignment, pursuant to paragraph 8 of the Option Contract;
accordingly, as of this date, the Option Period now terminates.
3. Xxxxxxxx Recognition. Xxxxxxxx recognizes that this Letter Agreement
serves as notice to him that NMMI is unable and unwilling to consent to the
Assignment and that F3 never satisfied the Assignment Conditions. Therefore,
Xxxxxxxx recognizes that the F3 Option is terminated and that he is free to sell
or assign the Xxxxxxxx Interest to NMMI.
4. F3 Nonpayment. Since the validity of the Assignment is subject to
payment in full by F3, and the F3 Option can only be exercised upon the payment
of the Assignment Purchase Price, neither of which has been satisfied, Xxxxxxxx
agrees to sell the Xxxxxxxx Interest to NMMI. Xxxxxxxx is able to sell the
Xxxxxxxx Interest per the terms of the License Agreement.
5. Consideration/Purchase Price. In consideration of the transfer by
Xxxxxxxx of the Xxxxxxxx Interest to NMMI, NMMI shall pay to Xxxxxxxx four
hundred thousand dollars ($400,000) on or before March 31, 2004.
6. Consistent With Option Contract and License Agreement. This Letter
Agreement is consistent with the intent and purpose of the Option Contract and
License Agreement, and it is agreed and understood by the Parties that F3 has
not exercised the F3 Option, and has no obligation to do so, pursuant to
paragraph 10 of the Option Contract.
7. Non-Disclosure and Confidentiality. The Parties agree that this Letter
Agreement is of a confidential nature and its contents are considered
confidential information (the "Confidential Information"). The Parties agree
that they shall not disclose, copy, or otherwise distribute this Letter
Agreement or the Confidential Information to any person for any reason
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whatsoever, or use such Confidential Information without the prior written
authorization of NMMI, unless such Confidential Information is in the public
domain through no fault of NMMI or except as may be required by law.
8. Miscellaneous.
8.1. Waiver. No waiver of any of the provisions of this Letter
Agreement shall be valid unless in writing, signed by the party against
whom such waiver is sought to be enforced, nor shall failure to enforce
any right hereunder constitute a continuing waiver of these same or a
waiver of any other right hereunder.
8.2. Amendments. All amendments of this Letter Agreement shall be
made in writing, signed by the Parties, and no oral amendment shall be
binding on the Parties.
8.3. Integration. This Letter Agreement constitutes the entire
agreement between the Parties relating to the subject matter hereto and
supersedes and cancels any other prior oral and/or written agreements or
understandings of the Parties in connection with such subject matter.
8.4. Severability. The enforceability or invalidity of any provision
or provisions of this Letter Agreement shall not render any other
provision of provisions hereof unenforceable or invalid. If any one or
more of the provisions of this Letter Agreement shall for any reason be
excessively broad as to duration, scope, activity or subject, it shall be
construed by reducing such provisions, so as to be enforceable to the
extent compatible with applicable law.
8.5. Headings. The headings or titles in this Letter Agreement are
for the purpose of reference only and shall not in any way affect the
interpretation or construction of this Letter Agreement.
8.6. Governing Law. This Letter Agreement will be governed by the
laws of the State of Florida. Any disputes arising out of or from this
Letter Agreement shall be submitted to binding arbitration for resolution
in Clearwater, Florida.
8.7. Attorney's Fees. In the event of litigation to enforce this
Letter Agreement, the prevailing party will be entitled to recover its
reasonable attorneys' fees as determined by the court.
8.8. Notices. All notices given under this Letter Agreement shall be
in writing and shall be deemed given or made when delivered by courier, by
facsimile or other similar form of wire or wireless communication sent to
the Parties' addresses or facsimile numbers, or if mailed, five (5) days
after mailing by first class mail, potage prepaid, as follows:
If to NMMI: As set forth on the signature page hereto.
If to the Xxxxxxxx: As set forth on the signature page hereto.
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With a copy to: Xxxxx X. Xxxx
The Xxxx Law Group, PLLC
000 Xxxxxx Xxx., Xxxxx 0000
Xxxxxxx, XX 00000
8.9. Counterparts. This Letter Agreement may be executed in
one or more counterparts, and each counterpart shall have the same
force and effect as an original and shall constitute an effective,
binding agreement on the part of each of the undersigned. Facsimile
signatures are effective.
8.10. Successors and Assigns. This Letter Agreement will be
binding upon and inure to the benefit of the Parties, their heirs,
successors, and its assigns.
8.11. Effective Date. This Letter Agreement is effective upon
its execution by all of the Parties.
8.12. Construction. Whenever the singular number is used in
this Letter Agreement and when required by the context, the same
shall include the plural and vice versa, and the masculine gender
shall include the feminine and neuter genders and vice versa.
8.13. Headings. The headings in this Letter Agreement are
inserted for convenience only and shall not affect the
interpretations of this Letter Agreement.
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IN WITNESS WHEREOF, the Parties hereto hereby execute this Letter
Agreement as of the date first set forth above.
XXXX XXXXXXXX ("XXXXXXXX")
/s/ Xxxx Xxxxxxxx
--------------------------------------------
NAME:
ADDRESS:
000 Xxxxx Xxxxxx Xxxxxx #000
Xxxxxx Xxxxx, XX 00000
Fax; 000-000-0000
NEW MILLENNIUM MEDIA INTERNATIONAL, INC. ("NMMI")
/s/ Xxxx Xxxxxx
--------------------------------------------
NAME: XXXX XXXXXX
TITLE: PRESIDENT
ADDRESS:
000 0xx Xxx Xx.
#000
Xxxxxx Xxxxxx, XX 00000
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