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EXHIBIT 99.1
AMENDMENT TO TERMINATION AGREEMENT
This Amendment to Termination Agreement (this "Agreement") is entered
into effective as of the 1st day of September, 2000 by and among XxxxxxXxxx.xxx
International, Inc., a Delaware corporation, XxxxxxXxxx.xxx, Inc., a Delaware
corporation (collectively, the "Company"), Xxxxxx Xxxxxxx, an individual
residing in the State of California ("Xx. Xxxxxxx") and Xxxxx, Xxxxxxx & Co.
("MCC"), collectively referred to hereinafter as the "Parties" or individually
as a "Party."
WHEREAS, effective May 2, 2000, the Company, Xx. Xxxxxxx and MCC each
executed an agreement (hereafter, the "Termination Agreement") terminating
certain Independent Contractor agreements among the Company, Xx. Xxxxxxx, and
MCC; and
WHEREAS, the Company has not delivered the termination payment in cash
as specified in the Termination Agreement; and
WHEREAS, Xx. Xxxxxxx and MCC are willing to accept shares of the
Company's Common Stock subject to the terms and conditions provided herein in
lieu of cash pursuant to the Termination Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby amend and
restate the Termination Agreement in its entirety as follows:
1. Termination of Agreement. Xx. Xxxxxxx'x Independent Contractor
Agreement dated as of April 15, 1999 and the subsequent Independent Contractor
Agreement dated as of July 1, 1999 between the Company and MCC to perform
services for the Company (individually and collectively the "Contractor
Agreement") are hereby terminated as of the date hereof (the "Termination
Date").
2. Termination Payment. In connection with the execution of this
Agreement, the Company agrees to tender to Xx. Xxxxxxx Twenty Thousand (20,000)
shares of Common Stock. Xx. Xxxxxxx and MCC each understand and agree to hold
the Company harmless from any taxes, assessments, penalties, or interest
payments that may occur at any time by reason of demand, suit, or proceeding
brought against the Company for any taxes or assessments arising out of the
payment made pursuant to this Section 2. The payment to Xx. Xxxxxxx in this
Section 2 is hereinafter referred to as the "Termination Payment."
3. Acknowledgment of Final Payment. Xx. Xxxxxxx and MCC acknowledge that
the Termination Payment provided for in Section 2 above, when paid, constitutes
full and complete payment to her and MCC of all fees and expenses, benefits, and
other entitlements due to Xx. Xxxxxxx or MCC in connection with the Contractor
Agreement with the Company. Xx. Xxxxxxx and MCC each acknowledge that they are
not entitled to any other payments from the Company pursuant to the Contractor
Agreement except as otherwise provided in Section 2 above.
4. Registration. As soon as practicable, the Company agrees to file a
Registration Statement with the Securities and Exchange Commission on Form S-8
with respect to the shares of Common Stock issued to Xx. Xxxxxxx pursuant to
this Agreement.
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5. Confidential Information. Xx. Xxxxxxx and MCC each acknowledge that
they are bound by an obligation of confidentiality as a consultant of the
Company. Xx. Xxxxxxx and MCC each represent that they have returned to the
Company all materials containing confidential information of the Company. Xx.
Xxxxxxx and MCC each represent that as of the date hereof they have not in any
way breached or attempted to breach this confidentiality obligation.
6. Post-Termination Actions. The Parties desire to provide for an
amicable termination and, accordingly, agree that after the date hereof they
shall not do anything to disparage or impair the business or business reputation
of the other Party.
7. Further Assurances. The Parties intend this Agreement to be a
complete and final settlement of all matters between them. Accordingly, each
Party agrees to execute such further documents and to take such further actions
as may be necessary or desirable to finally and fully settle all matters which
have arisen or which may subsequently arise between them.
8. Acknowledgment of Xx. Xxxxxxx and MCC. Xx. Xxxxxxx and MCC each
acknowledge that (i) they have consulted with or have had the opportunity to
consult with independent counsel of their own choice concerning this Agreement,
and have been advised to do so by the Company, and (ii) that they have each read
and understand the Agreement, are fully aware of its legal effect, and have
entered into it freely based upon his own judgement.
9. Notices. Any notice required hereunder to be given by either Party
shall be in writing and shall be delivered personally or sent by certified or
registered mail, postage prepaid, or by private courier, with written
verification of delivery, or by facsimile transmission to the other Party to the
address or telephone number set forth below or to such other address or
telephone number as either Party may designate from time to time according to
this provision. A notice delivered personally shall be effective upon receipt. A
notice sent by facsimile transmission shall be effective twenty-four hours after
the dispatch thereof. A notice delivered by mail or by private courier shall be
effective on the third day after the day of mailing.
to Xx. Xxxxxxx or MCC at: 00000 Xxxxxxx Xxxxx Xxxxxxx
XXX 000
Xxxxxx, XX 00000
Telefax: (000) 000-0000
to the Company at: 10421 South 000 Xxxx, Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Telefax: (000) 000-0000
10. Equitable Remedies. Each Party acknowledges and agrees that the
breach or threatened breach of certain provisions of this Agreement would cause
irreparable harm for which damages at law would be an inadequate remedy.
Accordingly, each Party hereby agrees that, in any such instance, the threatened
or injured Party shall be entitled to seek injunctive or other equitable relief
in addition to any other remedy to which he or it may be entitled, including
money damages.
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11. Severability. If any provision of this Agreement is found to be
unenforceable by a court of competent jurisdiction, the remaining provisions
shall nevertheless remain in full force and effect.
11. Assignment. This Agreement is not assignable or delegable in whole
or in part by Xx. Xxxxxxx or MCC without the written consent of an authorized
representative of the Company. This Agreement may be assigned or delegated in
whole or in part by the Company and, in such case, the terms of this Agreement
shall inure to the benefit of, be assumed by, and be binding upon the entity to
which this Agreement is assigned
12. Entire Agreement. This Agreement constitutes the full and complete
understanding of the Parties hereto with respect to the subject matter covered
herein and supersedes any and all prior oral or written understandings and
agreements with respect thereto. No modification or amendment to this Agreement
shall be effective unless it is contained in a written document that is signed
by both Parties.
13. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Utah. The Parties further agree that
proper venue and jurisdiction for any dispute under this Agreement shall lie
with the courts in the State of Utah.
IN WITNESS WHEREOF, the Parties have each signed this Agreement either
personally or by its duly authorized representative to be effective as of the
date first given above.
"Xx. Xxxxxxx" THE "COMPANY"
XXXXXXXXXX.XXX INTERNATIONAL, INC.
/s/ Xxxxxx Xxxxxxx /s/ Xxxxxxx Xxxxx
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Xxxxxx Xxxxxxx Xxxxxxx Xxxxx
President
"MCC" XXXXXXXXXX.XXX, INC.
XXXXX, XXXXXXX & CO.
/s/ Xxxxxx Xxxxxxx /s/ Xxxxxxx Xxxxx
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Xxxxxx Xxxxxxx Xxxxxxx Xxxxx
Director President
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