AGREEMENT
This "Agreement" replaces the "Agreement" between eConnect
Incorporated and Warp Drive Incorporated dated December 20, 1999,
which was duly signed by all parties on December 22, 1999
This Agreement is made as of the 29th of December, 1999, ("The
Effective Date") by eMarkit Incorporated, (a Nevada Corporation)
with resident address at 0000 X. Xxxxxxx Xxxxxx, Xxx Xxxxx,
Xxxxxx 00000, maintaining its mailing address at 0000 X. Xxxxxxxx
Road, # 102-215 hereinafter known as eMarkit and Mr. Xxx Xxxxxx,
individually, collectively known and on behalf of, eConnect,
Incorporated with address at 0000 Xxx Xxxxxxxx, Xxx Xxxxx, XX,
hereinafter known as eConnect.
1. That eConnect, and eMarkit, Incorporated do hereby agree to a
joint venture, whereby eConnect agrees to purchase on a "stock
for stock" basis, 50% of a corporation to be formed by eMarkit,
that name being; xXxxxxxx0Xxxxx.xxx, Incorporated, herein known
as ET. EConnect acknowledges that eMarkit is in the process of
incorporating ET, currently owns 100% of ET and is in the process
of reserving the Internet "domain name" of xxxxxxxx0xxxxx.xxx.
Upon signing of this agreement of eConnect agrees to issue one
million (1,000,000) "free-trading" shares of eConnect stock to
eMarkit and 2,000,000 warrants to eMarkit to purchase 2,000,000
"free-trading" shares of eConnect stock at an exercise price of
$1.00 per share. The expiration date of the warrants shall be
December 31, 2000. eConnect shall deliver the stock and warrants
as follows: 300,000 shares and 300,000 warrants no later than
January 20th, 2000. Upon signing this agreement, eConnect shall
send proof of documentation that the transfer agent has received
instructions to issue the stock to eMarkit. This documentation
shall be sent via fax to eMarkit no later than the following
business day. EMarkit's fax number is, (000) 000-0000 and/or
(000) 000-0000 (California branch office). The next issuance of
200,000 shares and 200,000 warrants will be delivered when Beta
testing begins and 500,000 shares and 500,000 warrants will be
delivered when Beta testing is complete but no later than March
20,0000.
1.1 That the business of ET shall be the marketing and sales of
eConnect "same-as-cash" transactions to the securities industry
via any medium, but initially via the internet using an ATM pin
pad.
1.2 eConnect shall pay all expenses, provide all funding, software
and hardware to implement the ET Beta testing and finalize the
operational system.
1.3 The long term goal of ET shall be to, for a fee, act as a
financial interface between securities broker/dealers and their
clients who are transacting currencies via PERFECT transactions
using bank host processing centers that are authorizing such
transactions.
1.4 Examples of ET services are establishing the eConnect2Trade
button on Internet sites of securities firms; routing commerce
PERFECT orders to either Internet or non-Internet securities
firms and their clients, whereby such transactions are
originating from land based terminals such as ePin, eConnect
EzyDepot, or wireless terminal such as the eConnect "PocketPay".
1.5 eMarkit's consideration and duties will be as follows:
A. Provide the financial contacts and resources to implement the
business of ET as outlined in this agreement.
B. eMarkit shall operate, maintain and provide the personnel for the
corporate offices of ET.
C. EMarkit will provide a clearinghouse or houses and or a brokerage
firm or brokerage firms for the beta testing of the "same as
cash" transactions as outlined in this agreement.
D. EMarkit will contract to develop the ET web site.
E. EMarkit will market, advertise, sell and or license eConnect's
"same as cash" technology to the financial industry on a best
efforts basis.
F. EMarkit, via ET, shall be the primary conduit between the
financial community and eConnect.
G. EMarkit is relying on eConnect's issuance of eConnect stock to ET
to implement all of the above.
H. In essence, eConnect is providing the financial resources and
technology for eMarkit to market, advertise, administrate,
operate, sell and/or license eConnect's technology to the
financial community via eMarkit's corporation and web site, known
as, xXxxxxxx0Xxxxx.xxx, Incorporated and xxx.xxxxxxxx0xxxxx.xxx,
by which eMarkit will issue 50% of ET to eConnect for this joint
venture as outlined in this agreement.
2. The PERFECT orders to financial firms shall be processed via
eConnect's bank host. eConnect will not charge a fee to ET to
process the transactions, ET will pay the bank the host bank
charges.
2.1 The settlement bank shall deduct the ET fee at the moment of the
transaction. The fee shall then be placed in the ET bank
account. The amount remaining after the bank host processing
costs have been deducted/paid is to be known as "Net Transaction
Receipts".
2.2 From these Net Transaction Receipts, eConnect shall receive 25%
of these "Receipts" as repayment of the capital funding to
implement the ET system. Once the initial capital funding to
implement the system is satisfied, eConnect shall no longer
receive 25% of the Net Transaction Receipts. The capital funding
does not include the fair market value of the eConnect stock to
purchase 50% of ET.
3. eConnect, and eMarkit shall equally share in the net profits
generated from ET. These profits shall be determined after sales
costs, marketing costs, administrative costs, general office
costs, overhead costs, consulting fees, legal fees, and
applicable taxes that will be deducted from the Net Transaction
Receipts.
4. ET agrees that all transactions shall be processed by eConnect
via eConnect's bank host. In turn eConnect shall grant exclusive
International rights to ET to market and sell eConnect's system
to the securities industry.
5. 10,000,000 shares of stock will be authorized by ET. Initial
issuance of stock shall be: 1,000,000 shares to eConnect and
1,000,000 shares to eMarkit. EConnect shall retain a Board seat.
EMarkit shall appoint Officers and Directors. Management control
shall remain with eMarkit.
6. This agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but of
which together shall constitute one and the same instrument. A
faxed signature shall be acceptable as an original legal
signature.
7. This Agreement shall be binding and replaces the agreement signed
on December 16, 1999 and December 22, 1999.
8. The laws of the State of Nevada shall govern this agreement.
9. Indemnification. Each party shall hold the other party harmless
from and against, and shall indemnify the other party for, any
liability, loss and costs, and expenses or damages however caused
by reason of any injury (whether to body, property, personal or
business character, or reputation) sustained by any person or to
any person or property by reason of any act of neglect, default
or omission of it or any of its agents, employees, or other
representatives arising out of or in relation to this Agreement.
Nothing herein is intended to nor shall it relieve either party
from liability for its own act, omission or negligence. All
remedies provided by law or in equity shall be cumulative and not
in the alternative.
10. Authorization. Contractor and its signatories herein have full
power and authority to enter into this Agreement and to carry out
the transactions contemplated hereby.
11. No Violation. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated
hereby will violate any provision of the charter or by-laws of
eConnect and eMarkit or violate, or be in conflict with or
constitute a default under, any agreement or commitment to which
eConnect or eMarkit is a party, or violate any statute or law or
any judgment, decree, order, regulation or rule of any court of
government authority.
12. Litigation. Except as set forth below, there is no action, suit,
inquiry, proceeding or investigation by or before any court of
governmental or other regulatory or administrative agency or
commission pending or to the best knowledge of eConnect
threatened against or involving eConnect, or which questions or
challenges the validity of this Agreement and its subject matter;
and eConnect does not know or have any reason to know if any
valid basis for any such actions, proceeding or investigation
exists.
13. Consents. No consent of any person, other than the signatories
hereto, is necessary to the consummation of the transactions
contemplated hereby including, without limitation, consents from
parties to loans, contracts, leases or other agreements and
consents from government agencies, whether federal, state or
local.
14. eMarkit's reliance. eMarkit has and will rely upon the
documents, instruments and written information furnished to
eMarkit by the eConnect's officers or designated employees and:
15. eConnect Material. All representations and statements provided
about eConnect are true, complete and accurate. EConnect agrees
to indemnify, hold harmless, defend eMarkit and ET, its officers,
directors, agents, consultants and employees at eConnect's
expense for any proceeding or suit which may arise out of any
inaccuracy or incompleteness of any such material written
information supplied to eMarkit and ET; and
16. eConnect Client and Other Material. All representations and
statements provided, other than about eConnect, are to the best
of its knowledge true, complete and accurate.
17. Confidentiality. eMarkit, ET and eConnect each agree to provide
reasonable security measures to keep information confidential
whose release may be detrimental to the business. EMarkit, ET
and eConnect shall each require their employees, agents,
affiliates, subcontractors, other licenses, and other who will
properly have access to the information through eMarkit, ET and
eConnect respectively, to first enter into appropriate non-
disclosure agreements requiring the confidentiality contemplated
by this Agreement in perpetuity.
18. Waiver of Compliance. Any failure of eMarkit on the one hand, or
eConnect on the other, to comply with any obligation, agreement
or condition herein may be expressly waived in writing, but such
waiver of failure to insist upon strict compliance with such
obligation, covenant, agreement or condition shall not operate as
a waiver of, or estoppel with respect to, any subsequent or other
failure.
19. Other Business Opportunities. Except as expressly provided in
this Agreement, eConnect and eMarkit shall have the right to
independently engage in and receive full benefits from other
business activities.
20. Compliance with Regulatory Agencies. Each party represents to
the other party that all actions, direct or indirect, taken by it
and its respective agents, employees and affiliates in connection
with this Agreement and any financing or underwriting hereunder
shall confirm to all applicable Federal and State securities
laws.
21. Notices. Any notices to be given hereunder by any party to the
other may be effected by personal delivery in writing or by mail,
registered or certified, postage prepaid with return receipt
requested. Mailed notices shall be addressed to the parties at
the addresses appearing in the introductory paragraph of this
Agreement, but any party may change their address by written
notice in accordance with this subsection. Notices delivered
personally shall be deemed communicated as of actual receipt;
mailed notices shall be deemed communicated as of three (3) days
after mailing.
22. Assignment. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but
neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by eConnect without the
prior written consent of eMarkit and ET, except by operation of
law.
23. Publicity. Neither eConnect nor eMarkit nor ET shall make or
issue, or cause to be made or issued, any announcement or written
statement concerning this Agreement or the transactions
contemplated hereby for dissemination to the general public
without the prior consent of the other party. This provision
shall not apply, however, to any announcement or written
statement required to be made by law or the regulations of any
Federal or State governmental agency, except that the party
required to make such announcement shall, whenever practicable,
consult with the other party concerning the timing and consent of
such announcement before such announcement is made.
24. Entire Agreement. This Agreement, including any Exhibits hereto,
and any other documents and certificates delivered pursuant to
the terms hereof, set forth the entire agreement and
understanding of the parties hereto in respect to the subject
matter contained herein, and supersedes all prior agreements,
promises, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any
officer, employee or representative of any party hereto.
25. Relationships of the Parties. Nothing contained in this
Agreement shall be deemed to constitute either party the partner
of the other, nor except as otherwise herein expressly provided,
to constitute either party the agent or legal representative of
the other, or to create any fiduciary relationship between them.
It is not the intention of the parties to create, nor shall this
Agreement be construed to create, any commercial nor other
partnership. Neither party shall have any authority to act for
or to assume any obligation or responsibility on behalf of the
other party, except as otherwise expressly provided herein. The
rights, duties, obligations and liabilities of the parties shall
be severable and not joint or collective. Each party hereto
shall be responsible only for its obligations as herein set out
and shall be liable only for its share of the costs and expenses
as provided herein. Each party shall indemnify, defend and hold
harmless the other party, its directors, officers, and employees,
from and against any and all losses, claims, damages and
liabilities arising out of any act or any assumption of liability
by the indemnifying party, or any of its directors, officers or
employees, done or undertaken, or apparently done or undertaken,
on behalf of the other party, except pursuant to the authority
expressly granted herein or otherwise agreed in writing between
the parties. Each party shall be responsible for the acts of its
agents, consultants and affiliates.
IN WITNESS WEHREOF, the parties hereto have caused this Agreement
to be duly executed, all as of the day and year first above written.
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx Xxxxx, President Xxxxxx X. Xxxxxx, Chairman and CEO
eMarkit, Incorporated eConnect
Date: December 22, 1999 Date: December 22, 1999
