Exhibit 10.2
MATERIAL CONTRACTS
AGREEMENT
This Agreement is entered into by and between XxxxxxXxx.xxx, Inc., a Delaware
Corporation, and Xxxx Xxxxxxx, an individual, hereinafter referred to as
"Marketer".
WHEREAS, there is located in the states of Washington, Oregon, California,
Idaho, Nevada, Utah, Colorado, and Arizona dealers and transporters of new and
used motor vehicles, water craft, aircraft, agricultural equipment, recreational
vehicles, and heavy equipment;
WHEREAS, XxxxxxXxx.xxx, Inc., is in need of a person to contact dealers and
transporters of new and used motor vehicles, water craft, aircraft, agricultural
equipment, recreational vehicles, and heavy equipment; and
WHEREAS, Marketer desires to contact dealers and transporters of new and used
motor vehicles, water craft, aircraft, agricultural equipment, recreational
vehicles, and heavy equipment located in the states of Washington, Oregon,
California, Idaho, Nevada, Utah, Colorado, and Arizona;
NOW, THEREFORE, It is agreed as follows:
Marketing
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XxxxxxXxx.xxx, Inc., hereby assigns to Marketer the West Sales Region, being the
states of Washington, Oregon, California, Idaho, Nevada, Utah, Colorado, and
Arizona. Marketer shall contact, in person, each and every dealer and
transporter of new and used motor vehicles, water craft, aircraft, agricultural
equipment, recreational vehicles, and heavy equipment located in the West Sales
Region in order to sign them up as users of the websites XxxxxxXxx.xxx and
XxxxxxxXxxxXxxxxxx.xxx. Marketer shall use the sign-up forms and dealer
agreement form provided him by XxxxxxXxx.xxx, Inc. A dealer is hereby defined as
a person or business whose regular course of business includes buying and/or
selling new and/or used motor vehicles, water craft, aircraft, agricultural
equipment, recreational vehicles, or heavy equipment, or any combination
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thereof. A transporter is hereby defined as a person or business whose regular
course of business includes transportation of one or more new and/or used motor
vehicles, water craft, aircraft, agricultural equipment, recreational vehicles,
or heavy equipment, or any combination thereof.
Marketer has a continuing duty to make face-to-face contact with each and every
dealer and transporter in the West Sales Region for the term of this Agreement.
Marketer shall provide XxxxxxXxx.xxx, Inc., by the 15th day of the each month a
report for the preceding month stating the names, addresses, and telephone
numbers of all dealers and transporters contacted, all dealers and transporters
signed up as users, all dealers and transporters who refused to sign us as
users, and all new dealers and transporters who began operation.
XxxxxxXxx.xxx, Inc., its agents, employees, or officers, may, at its discretion,
contact any dealer or transporter who refuses to sign up as a user. Such contact
by XxxxxxXxx.xxx, Inc., its agents, employees, or officers, shall not constitute
a breach of this Agreement.
In the event Marketer fails to make a concerted effort to contact, in person,
all dealers and transporters in the West Sales Region, XxxxxxXxx.xxx, Inc.,
shall have the right to terminate this Agreement by giving written notice to
Marketer.
Marketer shall receive from XxxxxxXxx.xxx, Inc., the sum of $2,000.00, per month
to cover travel expenses. Marketer shall be solely responsible for all expenses
incurred in excess of $2,000.00, per month.
Marketer agrees and understands that he is an independent contractor and not an
agent, assign, employee, or partner of XxxxxxXxx.xxx, Inc., and he has no power
to bind XxxxxxXxx.xxx. Inc., to any contract or agreement other than the
contracts and agreements, relating to signing up dealers as users of the
websites XxxxxxXxx.xxx and XxxxxxxXxxxXxxxxxx.xxx, provided to him by
XxxxxxXxx.xxx, Inc.
Marketer shall indemnify and save harmless XxxxxxXxx.xxx, Inc., its agents,
assigns, employees, directors, officers, and partners, from all suits, actions,
or claims of any character, type, or description brought or made for or on
account of any injuries or damages received or sustained by any person or
business entity, arising out of, or occasioned by, the acts of Marketer, his
agents, employees, assigns, partners, officers, or directors, in the execution
or performance of this contract.
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As consideration for entering into this Agreement, XxxxxxXxx.xxx, Inc., shall
pay to Marketer the sum of $75.00, for each dealer, signed up by Marketer, for
the services offered by XxxxxxXxx.xxx, who sells ten (10) or more motor
vehicles, water craft, aircraft, agricultural equipment, recreational vehicles,
or heavy equipment, or any combination thereof, through the websites of
XxxxxxXxx.xxx or XxxxxxxXxxxXxxxxxx.xxx. Said sum is payable on a monthly basis
for each such dealer who maintains the sales quota. XxxxxxXxx.xxx, Inc., shall
also pay to Marketer the sum of $25.00, for each dealer, signed up by Marketer,
for the services offered by XxxxxxXxx.xxx, who purchases three (3) or more motor
vehicles, water craft, aircraft, agricultural equipment, recreational vehicles,
or heavy equipment, or any combination thereof, through the websites of
XxxxxxXxx.xxx or XxxxxxxXxxxXxxxxxx.xxx. Said sum is payable on a monthly basis
for each such dealer who maintains the purchase quota. XxxxxxXxx.xxx, Inc.,
shall additionally pay to Marketer the sum of $15.00 for each transport company
signed up by Marketer. Ninety (90) days after the effective date of this
Agreement, XxxxxxXxx.xxx, Inc., shall deliver to Marketer, as additional
consideration, 10,000 shares of common stock in XxxxxxXxx.xxx, Inc., provided
Marketer has made substantial performance in signing up dealers. The President
of XxxxxxXxx.xxx, Inc., shall be the sole determiner of that factors that
constitute substantial performance. As further consideration, Marketer shall
have a seat on the Board of Directors of XxxxxxXxx.xxx, Inc.
This Marketing section of the Agreement shall remain in full force and effect
for a period of five (5) years and shall terminate automatically at the end of
such period unless XxxxxxXxx.xxx, Inc., shall give written notice of its
intention to renew the Agreement for a like period to Marketer, such notice to
be given at least ninety (90) days prior to the expiration of such initial term.
Option
------
If, after the expiration of ninety (90) days after the effective date of this
Agreement, XxxxxxXxx.xxx, Inc., provides to Marketer the 10,000 shares of common
stock in XxxxxxXxx.xxx, Inc., referenced above, then Marketer shall have the
option to purchase from XxxxxxXxx.xxx, Inc., 400,000 shares of common stock in
XxxxxxXxx.xxx, Inc., at $5.00, per share. Marketer has three (3) years from the
date XxxxxxXxx.xxx, Inc., provides to Marketer the 10,000 shares, if provided,
to exercise the option.
As consideration for this option, Marketer hereby agrees to pay to
XxxxxxXxx.xxx, Inc., the sum of $1.00, which XxxxxxXxx.xxx, Inc., acknowledges
receipt of.
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In the event Marketer exercises the option, Marketer shall not sale, transfer,
or convey, nor cause to be sold, transferred, or conveyed, any portion of the
shares of common stock purchased pursuant to the option until such time as
one-hundred (100%) percent of the shares of XxxxxxXxx.xxx, Inc., common stock
offered for sale in the initial public offering are sold. The number of shares
to be offered in the public stock offering shall be determined on or before May
8, 2000, which is the date the private placement of XxxxxxXxx.xxx, Inc., common
stock ends.
In the event Marketer sales, or causes to be sold, any portion of the shares of
common stock purchased pursuant to the option prior to the time one-hundred
(100%) percent of the public stock offering of XxxxxxXxx.xxx, Inc., common stock
is sold, then Marketer shall owe and pay to XxxxxxXxx.xxx, Inc., as liquidated
damages the published market price of one share of XxxxxxXxx.xxx, Inc., common
stock multiplied by the number of shares Marketer purchased pursuant to the
option, which market value shall be determined as of 3:00 p.m. Central Standard
Time on the date of the sale. Marketer hereby agrees to pay said sum and
XxxxxxXxx.xxx, Inc., agrees to accept such sum as liquidated damages, and not as
a penalty, in the event of such breach.
In the event Marketer exercises the Option, then XxxxxxXxx.xxx, Inc., shall
notify Marketer within forty-eight (48) hours of the time that one-hundred
(100%) percent of the public stock offering of XxxxxxXxx.xxx, Inc., common
stock, as referenced above, is sold.
Notwithstanding any provision in this Agreement, in the event of a breach of the
Option section of this Agreement by Marketer, XxxxxxXxx.xxx, Inc., shall be
entitled to injunctive relief, as well as to the liquidated damages and the
recovery of a reasonable attorney's fees which shall be deemed to be ten (10%)
of the published market price of one share of XxxxxxXxx.xxx, Inc., common stock
multiplied by the number of shares Marketer purchased pursuant to the option,
which market value shall be determined as of 3:00 p.m. Central Standard Time on
the date of the breach, unless XxxxxxXxx.xxx, Inc., pleads otherwise.
Non-Competition
---------------
Marketer, his agents, representatives, or assigns shall not directly or
indirectly engage in, participate in, and shall have no interest in any
business, firm, person, venture, organization, partnership, or corporation,
whether as an employee, consultant, officer, director, agent, security holder,
creditor, consultant, marketer, or otherwise, that engages or intends to engage
in any activity that is the same or similar to, or competitive, directly or
indirectly, with any activity now engaged in by XxxxxxXxx.xxx, Inc., within five
(5) years from the effective date of this Agreement.
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Marketer shall not place himself or one or more of his representatives, agents,
employees, officers, directors, or partners on the board of directors or other
governing body of a business, firm, venture, organization, partnership, or
corporation that engages or intends to engage in any activity that is the same
or similar to, or competitive, directly or indirectly, with any activity now
engaged in by XxxxxxXxx.xxx, Inc. Marketer shall not position himself or one or
more of his representatives, agents, employees, officers, directors, or partners
as a partner, or other business associate, with any person or business, firm,
venture, organization, partnership, or corporation that engages or intends to
engage in any activity that is the same or similar to, or competitive, directly
or indirectly, with any activity now engaged in by XxxxxxXxx.xxx, Inc.
Indirect competition shall be deemed to include Marketer's position as a
partner, officer, consultant, agent, assign, employee, or subsidiary of a
competing business, or Marketer's position as a holding company for any
corporation, partnership, venture, or other business organization. Indirect
competition shall also be deemed to include providing one or more servers,
building a website, and/or hosting a website for any business, firm, person,
venture, organization, partnership, or corporation that engages or intends to
engage in any activity that is the same or similar to, or competitive with any
activity now engaged in by XxxxxxXxx.xxx, Inc. Indirect competition shall
additionally be deemed to include the raising of venture capital, locating and
providing names of potential investors, and the promotion of stock in any
business, firm, venture, organization, partnership, or corporation that engages
or intends to engage in any activity that is the same or similar to, or
competitive with any activity now engaged in by XxxxxxXxx.xxx, Inc. Indirect
competition shall further be deemed to include the raising of venture capital,
locating and providing names of potential investors, and the promotion of stock
for any person that engages or intends to engage in any activity that is the
same or similar to, or competitive with any activity now engaged in by
XxxxxxXxx.xxx, Inc.
This Agreement shall not be construed to limit or restrict Marketer from owning
shares of a business, firm, venture, organization, partnership, or corporation
that engages in any activity that is the same or similar to, or competitive with
any activity now engaged in by XxxxxxXxx.xxx, Inc., so long as Marketer, his
agents, representatives, or assigns, takes no part, directly or indirectly, in
the operations of the business, firm, venture, organization, partnership, or
corporation other than through a vote called for by the partners, board of
directors, or other governing body of the business, firm, venture, organization,
partnership, or corporation.
On the effective date of this Agreement, XxxxxxXxx.xxx, Inc., is engaged in the
following activities:
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on-line trading services via an Internet website to facilitate the sale of goods
and services in which a seller posts one or more items to be auctioned and
bidding is done electronically, and providing evaluative feedback and ratings of
sellers' goods and services, the value and prices of sellers' good and services,
buyers' and sellers' performance, delivery, and overall trading experience in
connection therewith; providing sellers who post items to be auctioned and bid
upon to determine the terms and conditions of the auction; providing an on-line
searchable database for the sale of goods and services of others via an Internet
website; providing an on-line searchable ordering guide for locating,
organizing, and presenting goods and services of others via an Internet website;
providing an on-line searchable catalog featuring goods and services of others;
providing on-line trading services via an Internet website to facilitate the
retail sale of goods and services; providing on-line trading and information
services via an Internet website whereby a retailer may obtain information about
goods and services and order, purchase and obtain goods and services directly
from manufacturers and service providers; retail sales services for others
provided by means of an Internet website; providing computerized searching,
ordering, and on-line retail and wholesale distributorship services for others
via an Internet website; providing on-line trading services via an Internet
website for dealers of new and used motor vehicles, water craft, aircraft,
agricultural equipment, recreational vehicles, and heavy equipment to facilitate
the sale of new and used motor vehicles, water craft, aircraft, agricultural
equipment, recreational vehicles, and heavy equipment by means of an auction
where bidding is done electronically; providing dealers of new and used motor
vehicles, water craft, aircraft, agricultural equipment, recreational vehicles,
and heavy equipment on-line access to multiple sources of financing for their
retail customers; providing the ability for dealers in new and used motor
vehicles, water craft, aircraft, agricultural equipment, recreational vehicles,
and heavy equipment to search on-line for motor vehicles nationally, by region,
by state, and by city; providing the ability for dealers in new and used motor
vehicles, water craft, aircraft, agricultural equipment, recreational vehicles,
and heavy equipment to search on-line for motor vehicles by make, model, year,
condition, dollar amount, auction time remaining, auction type, and mileage;
providing dealers of used motor vehicles, water craft, aircraft, agricultural
equipment, recreational vehicles, and heavy equipment an on-line rating system
for the motor vehicles, water craft, aircraft, agricultural equipment,
recreational vehicles, and heavy equipment listed on the website; providing
dealers of new and used motor vehicles, water craft, aircraft, agricultural
equipment, recreational vehicles, and heavy equipment on-line access to extended
warranties for their retail customers; providing dealers of new and used motor
vehicles, water craft, aircraft, agricultural equipment, recreational vehicles,
and heavy equipment the ability to place the shipping of the motor vehicles,
water crafts, aircrafts, agricultural equipment, recreational vehicles, and
heavy equipment they purchase up for competitive bidding; providing on-line
tracking and reporting on each buyer and seller; providing an on-line monitor
which will inform a registered buyer each time an item is listed which matches
the buyer's pre-defined criteria; providing buyers the ability to contact a
seller by electronic mail before purchasing an item
Notwithstanding any provision in this Agreement, in the event of the breach of
the Non- Competition section of this Agreement by Marketer, XxxxxxXxx.xxx, Inc.,
shall be entitled to injunctive relief, as well as to damages sustained and the
recovery of a reasonable attorney's fees which shall be deemed to be ten (10%)
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of the published market price of one share of XxxxxxXxx.xxx, Inc., common stock
multiplied by the number of shares held by Marketer on the date of the breach,
which market value and number of shares owned shall be determined as of 3:00
p.m. Central Standard Time on the date of the breach, unless XxxxxxXxx.xxx,
Inc., pleads otherwise.
General Provisions
------------------
The Marketing and Option sections of this Agreement are binding and inure to the
benefit of any successor of XxxxxxXxx.xxx, Inc. The Marketing and Option
sections of this Agreement terminate upon the death or incapacity resulting in
the necessity of life support of Marketer and, upon such death or incapacity,
XxxxxxXxx.xxx, Inc., is relieved from any and all duties imposed upon it in
those sections.
The Non-Competition section of this Agreement is binding and inures to the
benefit of any successor of XxxxxxXxx.xxx, Inc., or Marketer, respectively, and
any such successor shall be deemed substituted for XxxxxxXxx.xxx, Inc., or
Marketer, respectively, under the terms of this Agreement. As used herein, the
term successor shall include any person, representative, agent, assign, heir,
firm, corporation, venture, partnership, organization, holding company,
subsidiary, or other business entity which, at any time, by merger, purchase, or
otherwise, either directly or indirectly, acquires all or substantially all of
the assets or business of XxxxxxXxx.xxx, Inc., or Marketer.
Marketer or one or more of his employees, officers, directors, or partners shall
not have a seat on the board of directors of XxxxxxXxx.xxx, Inc., and on the
board of directors or other governing body of a business, firm, venture,
organization, partnership, or corporation that engages or intends to engage in
any activity that is the same or similar to, or competitive, directly or
indirectly, with any activity now engaged in by XxxxxxXxx.xxx, Inc.
Marketer shall not position himself or one or more of his representatives,
agents, employees, officers, directors, or partners as a partner, or other
business associate, with any person or business, firm, venture, organization,
partnership, or corporation that engages or intends to engage in any activity
that is the same or similar to, or competitive, directly or indirectly, with any
activity now engaged in by XxxxxxXxx.xxx, Inc., while having a seat on the Board
of Directors of XxxxxxXxx.xxx, Inc.
Indirect competition and activities now engaged by XxxxxxXxx.xxx, Inc., as used
in the General Provisions section, have the same meaning as defined in the
Non-Competition section.
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In the event of default or breach of any section of this Agreement by Marketer,
Marketer, if presently having a seat on the Board of Directors of XxxxxxXxx.xxx,
Inc., shall immediately resign his seat on the Board of Directors of
XxxxxxXxx.xxx, Inc. Marketer's resignation shall be effective upon either
written notice provided by Marketer or upon written notice, to Marketer, of
Marketer's default or breach.
No sale, assignment, transfer or pledge of the rights and duties in the
Marketing or Option sections of this Agreement shall be made, in whole or in
part, by Marketer without the prior written consent of XxxxxxXxx.xxx, Inc. This
Agreement shall terminate automatically upon any sale, assignment, transfer or
pledge without the prior written approval of XxxxxxXxx.xxx, Inc. Any sale,
assignment, transfer or pledge without the prior written consent of
XxxxxxXxx.xxx, Inc., shall constitute a breach
The rights and remedies granted to XxxxxxXxx.xxx, Inc., in this Agreement in the
event of breach or default are cumulative, and the exercise of such rights shall
be without prejudice to the enforcement of any other right or remedy authorized
by law or this Agreement. No waiver of any violation of the terms provisions,
and covenants in this Agreement shall be deemed to constitute a waiver of any
other violation, default, or breach of any terms, provisions, and covenants
contained in this agreement and forbearance to enforce one or more of the
remedies provided upon an event of default or breach shall not be deemed or
construed to constitute a waiver of such default or breach.
If any action, at law or in equity, including an action for declaratory relief,
is brought to enforce or interpret the provisions of this Agreement, the
prevailing party shall be entitled to recover reasonable attorney's fees from
the other party, which fees shall be set by the court in the trial of such
action and which fees shall be in addition to any other relief which may be
awarded.
All notices required by this Agreement or by the laws of the State of Texas
shall be in writing and delivered by certified mail, return receipt requested.
Notice to XxxxxxXxx.xxx, Inc., shall be sufficient if made or addressed to
XxxxxxXxx.xxx, Inc., 174-G World Trade Center, 0000 Xxxxxxxx Xxxxxxx, X.X. Xxx
000000, Xxxxxx, Xxxxx 00000, and to Xxxx Xxxxxxx, Marketer, at 00 Xxxxxxx,
Xxxxxxx, Xxxxxxxxxx 00000-0000. Each party may change the address for notice by
giving notice of such change in accordance with the provisions of this
paragraph.
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In the event this Agreement is deemed to exceed the time or geographic
limitations permitted by applicable laws, then such provisions shall be reformed
to the maximum time or geographic limitations permitted by the applicable laws.
This Agreement constitutes the sole and only agreement of the parties hereto
relating to the contact and signing up of dealers and transporters of new and/or
used motor vehicles, water craft, aircraft, agricultural equipment, recreational
vehicles, and/or heavy equipment as users of the websites XxxxxxXxx.xxx and
XxxxxxxXxxxXxxxxxx.xxx and correctly sets forth the rights, duties, and
obligations of each to the other as of the effective date of this Agreement. Any
prior agreements, promises, negotiations, or representations, written or oral,
not expressly set forth in this Agreement are of no force or effect. This
Agreement may not be modified unless both parties agree and the modification is
placed in writing and signed and notarized by both parties.
This Agreement is entire as to all of the performances to be rendered under it.
Breach of any obligation to be performed by Marketer shall constitute a breach
of the entire Agreement and shall give XxxxxxXxx.xxx, Inc., the right to
terminate the Marketing section of this Agreement.
If any term, provision, covenant, or condition of this Agreement is held by a
court of competent jurisdiction to be invalid, void, or unenforceable, it is the
express intent of the parties that the remainder of the provisions shall remain
in full force and effect and shall in no way be affected, impaired, or
invalidated.
The parties agree that this Agreement is governed solely by the laws of the
State of Texas and that all causes of action based upon the provisions in this
Agreement shall be brought solely in the 000xx Xxxxxxxx Xxxxx in Xxxxx County,
Texas. The parties agree that the 000xx Xxxxxxxx Xxxxx in Xxxxx County, Texas,
holds exclusive jurisdiction over any dispute arising out of this Agreement. The
parties consent to personal jurisdiction in said court.
By their signatures below, the parties acknowledge that they have read the
Agreement and that they understand the terms and conditions as stated therein.
This Agreement is effective the __________ day of _______________, 2000, and is
signed in Addison, Dallas County, Texas.
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XxxxxxXxx.xxx, Inc.
BY:______(signature)_____________________
J. Xxxxxxx Xxxx, President
BY:______(signature)______________________
Xxxx Xxxxxxx
STATE OF TEXAS
ss.
ss.
COUNTY OF DALLAS
ss.
This instrument was acknowledged before me on , 2000, by J. Xxxxxxx Xxxx, as
authorized representative of XxxxxxXxx.xxx, Inc.
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Notary Public, State of Texas
STATE OF TEXAS
ss.
ss.
COUNTY OF DALLAS
ss.
This instrument was acknowledged before me on , 2000, by Xxxx Xxxxxxx.
Notary Public, State of Texas
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