AGREEMENT FOR PAYMENT FOR CONSULTING SERVICES
(hereinafter, "Agreement")
THIS AGREEMENT is entered into on June 14, 2000, by and among XxxxxxxxXxxx.Xxx
Corporation, a Nevada corporation, (hereinafter, "XxxxxxxxXxxx.Xxx"),
XxxXxxxxxXxxxXxxxxxxxx.Xxx., Corp., a Delaware corporation, (hereinafter,
"YPD"), and ITS Billing, Inc., a Nevada corporation, (hereinafter, "ITS Billing,
Inc.").
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and adequacy of which is hereby
acknowledged by each of the parties hereto, the parties hereto, intending to be
legally bound, hereby agree as follows:
1. Acknowledgment of Consulting Services. XxxxxxxxXxxx.Xxx and YPD hereby
acknowledge and agree that ITS Billing, Inc. has, during the previous six (6)
months provided XxxxxxxxXxxx.Xxx and YPD with various consulting services on the
possibility of implementing their own billing system, and the various methods of
doing so, and that ITS Billing, Inc. is entitled to and has earned fees as
compensation for such consulting services, which XxxxxxxxXxxx.Xxx and YPD have
agreed to pay.
2. Agreement to Issue Stock and Warrants. At the time of execution of this
Agreement, XxxxxxxxXxxx.Xxx and YPD shall issue and deliver to ITS Billing,
Inc., as full payment for consulting services to XxxxxxxxXxxx.Xxx which have
been fully performed by ITS Billing, Inc., the following:
a. The Promissory Note in the amount of Thirty Thousand Dollars ($30,000.00),
attached hereto as Appendix "1" and incorporated herein by reference
(hereinafter, "the $30,000.00 Promissory Note").
b. Fifty thousand (50,000) shares of the common stock of XxxxxxxxXxxx.Xxx,
issued in the name of ITS Billing, Inc.; and
c. Fifty thousand (50,000) common stock purchase warrants (hereinafter,
"Warrant(s)") to purchase fifty thousand (50,000) shares of common stock of
XxxxxxxxXxxx.Xxx.
Each Warrant will have an exercise price of Fifty-Six and Two-Tenths Cents (56.2
per share and shall expire on December 31, 2001. XxxxxxxxXxxx.Xxx shall make
an S-8 filing and take such other actions as are necessary to cause said fifty
thousand (50,000) shares of common stock to be immediately registered and
immediately free trading and able to be sold on the NASDAQ OTC BB. Upon
exercise of such Warrants, XxxxxxxxXxxx.Xxx shall make an S-8 filing and take
such other actions as are necessary to cause the shares of common stock issued
pursuant to the Warrant(s) to be immediately registered and immediately free
trading and able to be sold on the NASDAQ OTC BB.
3. Remedies. XxxxxxxxXxxx.Xxx and YPD acknowledge that the injury to ITS
Billing, Inc. which would be occasioned by XxxxxxxxXxxx.Xxx's and YPD's failure
to abide by the terms of this Agreement shall not be adequately compensated by
monetary damages. XxxxxxxxXxxx.Xxx and YPD agree that as ITS Xxxxxxxx, Inc.'s
remedy at law would be inadequate, ITS Billing, Inc. shall be entitled to seek
and obtain specific performance and immediate and permanent injunctive and other
equitable relief including but not limited to temporary restraining orders
and/or preliminary or permanent injunctions to restrain or enjoin any such
violation, without the necessity of posting a bond or other security. These
remedies of ITS Billing, Inc. are in addition to all other relief set forth in
this Agreement, available at law, or available in equity, together with the
right to receive attorney's fees and costs of pursuing available remedies and
enforcing the terms of this Agreement. XxxxxxxxXxxx.Xxx and YPD hereby waive,
with respect to any future dispute related to this Agreement, any defense based
on the argument that ITS Billing, Inc. will not be irreparably harmed or that it
has available to it an adequate remedy at law.
4. Good Faith; Further Assurances. The parties to this Agreement shall in good
faith undertake to perform their obligations under this Agreement, to satisfy
all conditions and to cause the transactions contemplated by this Agreement to
be carried out promptly in accordance with the terms of this Agreement. Upon
the execution of this Agreement and thereafter, each party shall do such things
as may be reasonably requested by the other party hereto in order more
effectively to consummate or document the transactions contemplated by this
Agreement.
5. Survival of Representations, Warranties and Covenants. All of the
representations, warranties, and covenants contained herein shall survive the
execution of this Agreement and the consummation of the transaction contemplated
herein. Such execution and consummation shall not be considered to be a waiver
of any misrepresentation or breach of warranty or covenant, and each party may
exercise any and all rights and remedies as provided for herein.
6. Waivers. No waiver by any party of, or consent by such party to, a
variation from, or breach of, or default under any provision of this Agreement
shall be effective unless made in a written instrument duly executed on behalf
of such party by its duly authorized officer or such individual (as the case may
be), and any such waiver or consent shall be limited solely to those rights or
conditions expressly so waived or consented to. No failure or delay on the part
of any party in exercising any power, right or privilege under this Agreement
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power preclude any other or further exercise thereof, or the
exercise of any other right or power under this Agreement. No other actions
taken by any party, including, without limitation, any investigation by or on
behalf of such party, and no failure to take action, shall be deemed to
constitute a waiver or an extension by such party of compliance with any
representation, warranty, condition, agreement or indemnification set forth in
this Agreement.
7. Parties Bound. This Agreement shall be binding upon the successors and
assigns of the parties hereto.
8. Amendments. This provision, and each and every other provision of this
agreement may not under any circumstance be modified, changed, amended or
provisions hereunder waived verbally, buy may only be modified, changed, amended
or provisions hereunder waived by an agreement in writing executed by all
parties hereto.
9. Severability. If fulfillment of any provision of this Agreement or
performance of any act contemplated hereby, at the time such fulfillment or
performance shall be due, shall exceed the limit of validity prescribed by law,
then the obligation to be fulfilled or performed shall be reduced to the limit
of such validity; and, if any clause or provision contained in this agreement or
in any document or instrument to be delivered pursuant hereto, operates or would
operate to invalidate this Agreement or such document or instrument, in whole or
in part, such clause or provision shall be held ineffective, as though not
herein or therein contained, and the remainder of this Agreement or such
document or instrument shall remain operative and in full force and effect.
10. Notices. All notices, requests, demands and other communications hereunder
shall be deemed to be fully given only if mailed by United States Certified
Mail, postage prepaid, return receipt requested, addressed as follows:
To Purchaser: ITS Billing, Inc.
Attn: Xxxxxx Xxxxxxx, President
0000 Xxxx Xxxxx Xxxxxxx Xxxxxx
Xxx. 000
Xxxxxxxxxx, Xxxxxxx 00000
To XxxxxxxxXxxx.Xxx: XxxxxxxxXxxx.Xxx, Inc.
Attn: Xxxxx Xxxxxxx, President
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Any party may change its address for notices by written notice to all other
parties in accordance with this paragraph.
11. Interpretation. The language in all parts of this Agreement shall in all
cases be construed as a whole according to its fair meaning, strictly neither
for nor against ITS Billing, Inc. or XxxxxxxxXxxx.Xxx and YPD, and without
implying a presumption that the terms hereof shall be more strictly construed
against one (1) party by reason of any rule of construction to the effect that a
document is to be construed more strictly against the party who personally or
through such party's agent prepared the same.
12. Applicable Law; Arbitration. This Agreement shall be governed and construed
under the laws of the State of Florida, not including the choice of law rules
thereof. Except as provided for in this Agreement, or in any instrument
executed in connection herewith, including but not limited to any promissory
note made in connection herewith, any and all disputes, complaints,
controversies, claims and grievances arising under, out of, in connection with,
or in any manner related to this Agreement or the relationship of parties
hereunder (an "Arbitrable Event") shall be settled by binding arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association. Each of the parties hereto expressly waives the right to conduct
any discovery in connection with such arbitration proceedings. In the event of
an Arbitrable Event, any party may request that an arbitrator be appointed by
the American Arbitration Association, and such matter be arbitrated, within
fifteen (15) days of the request of the appointment of such arbitrator. A
decision concerning such matter shall be made and given by the arbitrator within
fifteen (15) days after such arbitration. Notwithstanding said Rules, any
arbitration hearing to take place hereunder shall be conducted in Clearwater,
Florida, before one (1) arbitrator who shall be an attorney who has substantial
experience in commercial law issues. Either party may apply to any court of
competent jurisdiction for specific performance or injunctive relief or other
interim measures: (i) as expressly provided for elsewhere in this Agreement;
(ii) in aid of the arbitration proceedings; or (iii) to enforce the arbitration
award, but not otherwise. Any such application to a court shall not be deemed
incompatible or a waiver of this section. The arbitrator shall be required to
make written findings of fact and conclusions of law to support its award. The
arbitrator shall award costs and attorney fees to the most prevailing party in
any such arbitration. If any party to the arbitration does not appear at the
arbitration at the time and place set for arbitration, the arbitrator shall make
his decision based upon the testimony and evidence of the party present, and the
non-present party shall waive its right to present evidence or testimony to the
arbitrator. In rendering its judgment and award, the arbitrator shall have no
power to add or detract from the terms and conditions set forth in this
Agreement, and shall render its award and judgment strictly in accordance with
the terms and conditions hereof. The decision of the arbitrator will be final
and binding and the decision shall be entered as a final judgment in any Court
of competent jurisdiction. The Court shall grant summary judgment solely on the
basis of the arbitrator's finding of fact and decision.
13. Heading. The descriptive headings of the paragraphs of this Agreement are
inserted for convenience only and do not constitute a part of the Agreement.
14. Counterparts. This Agreement and all Exhibits, attachments, appendices, and
schedules attached hereto, and any other document executed in connection
herewith, may be executed in two or more counterparts, each of which shall be
deemed an original and all of which shall constitute one and the same document.
Facsimile transmissions and/or photocopies of a signed counterpart of this
Agreement, or any such document shall be considered for all purposes to
constitute the delivery of a properly executed original of this Agreement or any
such document.
15. Corporate Authority. The individual signing below on behalf of
XxxxxxxxXxxx.Xxx and YPD represents that he has all necessary corporate power
and authority to enter into, execute and perform this Agreement for and on
behalf of the party for which such person is signing. Such individual,
XxxxxxxxXxxx.Xxx and YPD represent and warrant that said resolutions of the
board of directors approving this transaction were duly enacted and remain in
full force and effect, and that no further approvals or other corporate action
is required, and this Agreement and the obligations contained herein, are the
binding obligations of XxxxxxxxXxxx.Xxx and YPD, enforceable in accordance with
their terms.
16. Consultation With Attorneys. XxxxxxxxXxxx.Xxx and YPD hereby acknowledge
that XxxxxxxxXxxx.Xxx and YPD and its Board of Directors have had an opportunity
to consult with an attorney to review this Agreement prior to the execution
hereof and prior to the approval of such Agreement by said Board of Directors.
IN WITNESS WHEREOF, the parties have executed this agreement the year and date
first above written.
ITS BILLING, INC.
By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, President
"ITS BILLING, INC."
XXXXXXXXXXXX.XXX, CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X.Xxxxxxx, President
"XXXXXXXXXXXX.XXX"
XXXXXXXXXXXXXXXXXXXXXX.XXX., CORP.
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx, President
"YPD"
