Engagement Agreement
This Engagement Agreement (the "Agreement") is entered into, effective as
of July 1, 2002, by and between Xxxx Xxxxxxxxx, an individual residing in the
State of Florida ("Xx. Xxxxxxxxx"), and Explorations Group, Inc., a Delaware
publicly held corporation currently registering a class of securities under
Section 12(g) of the Securities Exchange Act of 1934, as amended ("Explorations"
and the "Exchange Act," respectively, Explorations and all of its subsidiaries,
whether current or subsequently formed or acquired, sometimes being collectively
hereinafter referred to as the "Consolidated Corporation," and Explorations and
Xx. Xxxxxxxxx being sometimes hereinafter collectively to as the "Parties" or
generically as a "Party".
Preamble:
WHEREAS, Explorations has directed The Yankee Companies, LLC, a Florida
limited liability company ("Yankees"), to recommend an individual to serve as
its chief financial officer and controller; and
WHEREAS, Yankees has recommended Xx. Xxxxxxxxx to Explorations' board of
directors based on his knowledge and experience in financial matters, including
the accounting services he has been providing to Explorations through his
company, CFO On Call; and
WHEREAS, Explorations' board of directors has determined that he is
experienced and well known in the financial community and is thoroughly
knowledgeable with the obligations and restrictions imposed on public companies
by the Exchange Act and the Securities Act of 1933, as amended (the "Securities
Act") and has requested that he serve as Explorations' chief financial officer
and controller; and
WHEREAS, Xx. Xxxxxxxxx is agreeable to serving in this capacity on the
terms and conditions hereinafter set forth:
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements hereby exchanged, as well as of the sum of Ten ($10.00) Dollars and
other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the Parties, intending to be legally bound, hereby agree as
follows: Witnesseth:
Article One
Term, Renewals, Earlier Termination
1.1 Term.
Subject to the provisions set forth herein, the term of Xx. Xxxxxxxxx'x
engagement hereunder shall be deemed to commence as of July 1, 2002 and continue
until June 30, 2003, unless extended or earlier terminated by Explorations as
hereinafter set forth
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1.2 Renewals.
This Agreement shall be renewed automatically, after expiration of the
original term, on a continuing annual basis, unless the Party wishing not to
renew this Agreement provides the other Party with written notice of its
election not to renew ("Termination Election Notice") on or before the 60th day
prior to termination of the then-current term.
1.3 Earlier Termination.
Explorations shall have the right to terminate this Agreement prior to the
expiration of its Term or of any renewals thereof, subject to the provisions of
Section 1.4, for the following reasons:
(a) For Cause:
(1) Explorations may terminate Xx. Xxxxxxxxx'x engagement under
this Agreement at any time for cause.
(2) Such termination shall be evidenced by written notice thereof
to Xx. Xxxxxxxxx, which notice shall specify the cause for
termination.
(3) For purposes hereof, the term "cause" shall mean:
(A) The inability of Xx. Xxxxxxxxx, through sickness or other
incapacity, to discharge his duties under this Agreement for 30
or more consecutive days or for a total of 60 or more days in a
period of twelve consecutive months;
(B) The refusal of Xx. Xxxxxxxxx to follow the directions of
Explorations' board of directors, unless Xx. Xxxxxxxxx believes
in good faith that such directions are contrary to law;
(C) Dishonesty; theft; or conviction of a crime involving moral
turpitude;
(D) Material default in the performance of his obligations,
services or duties required under this Agreement or materially
breach of any provision of this Agreement, which default or
breach has continued for five days after written notice of such
default or breach.
(b) Discontinuance of Business or Change in Control:
In the event that Explorations discontinues operating its
business or experiences a change in control, this Agreement shall
terminate as of the last day of the month on which it ceases
operation or such control changes with the same force and effect
as if such last day of the month were originally set as the
termination date hereof; provided, however, that a reorganization
of Explorations shall not be deemed a termination of its
business.
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(c) Death:
This Agreement shall terminate immediately on Xx. Xxxxxxxxx'x death;
however, all accrued compensation at such time shall be promptly paid to Xx.
Xxxxxxxxx'x estate.
1.4 Final Settlement.
Upon termination of this Agreement and payment to Xx. Xxxxxxxxx of all
amounts due him hereunder, Xx. Xxxxxxxxx or his representative shall execute and
deliver to the terminating entity on a form prepared by the terminating entity,
a receipt for such sums and a release of all claims, except such claims as may
have been submitted pursuant to the terms of this Agreement and which remain
unpaid, and, shall forthwith tender to Explorations all records, manuals and
written procedures, as may be desired by it for the continued conduct of its
business.
Article Two
Scope of Engagement
2.1 Retention.
Explorations hereby hires Xx. Xxxxxxxxx and Xx. Xxxxxxxxx hereby accepts
such engagement, in accordance with the terms, provisions and conditions of this
Agreement.
2.2 General Description of Duties.
(a) Xx. Xxxxxxxxx shall be engaged as the chief financial officer and
controller of Explorations and shall perform the duties associated
therewith by Explorations' bylaws.
(b) Without limiting the generality of the foregoing, Xx. Xxxxxxxxx shall:
(1) Be responsible for coordinating all financial aspects of
Explorations' operations, including strategic financial
planning, supervision of Explorations' treasurer (if one has
been appointed), and supervision of outside auditors;
(2) Keep Explorations' Audit Committee of the board of directors
fully and timely informed of all matters under its
jurisdiction
(3) Serve as Explorations' principal compliance officer and be
responsible for overseeing preparation and filing of all
reports of Explorations' activities required to be filed,
either periodically or on a special basis with the United
States Internal Revenue Service, the Securities and Exchange
Commission (the "Commission"), and with other federal, state
or local governmental agencies; and
(4) Perform such other duties as are assigned to him by
Explorations' board of directors, subject to compliance with
all applicable laws and fiduciary obligations.
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(c) Xx. Xxxxxxxxx covenants and agrees to perform his duties in good faith
and, subject to the exceptions specified in Section 2.4, to devote the
required amount of his business time, energies and abilities to the
proper and efficient management and execution of such duties.
2.3 Status.
(a) Xx. Xxxxxxxxx shall serve as an independent contractor of Explorations
and shall have no authority to act as an agent thereof, or to bind
Explorations or its subsidiaries as a principal or agent thereof, all
such functions being reserved to its board of directors in compliance
with the requirements of its constituent documents, unless the board of
directors shall otherwise authorize.
(b) Xx. Xxxxxxxxx hereby covenants and agrees that he shall not hold
himself out as an authorized agent of Explorations unless such
authority is specifically assigned to him, on a case by case basis, by
its board of directors pursuant to a duly adopted resolution which
remains in effect.
(c) Xx. Xxxxxxxxx hereby represents and warrants to Explorations that he is
subject to no legal, self regulatory organization (e.g., National
Association of Securities Dealers, Inc.'s bylaws) or regulatory
impediments to the provision of the services called for by this
Agreement, or to receipt of the compensation called for under this
Agreement or any supplements thereto; and, Xx. Xxxxxxxxx hereby
irrevocably covenants and agrees to immediately bring to the attention
of Explorations any facts required to make the foregoing representation
and warranty continuously accurate throughout the term of this
Agreement, or any supplements or extensions thereof.
2.4 Non-Exclusivity.
Xx. Xxxxxxxxx shall, unless specifically otherwise authorized by
Explorations' board of directors, devote his business time in a way that the
affairs of Explorations are satisfied; provided, however, that Explorations
hereby recognizes that Xx. Xxxxxxxxx is involved with other business ventures
and hereby consents to his continuation in such roles, provided that he will
resolve any actual conflicts of interest resulting from such roles in favor of
Explorations whenever possible and practical.
2.5 Limitations on Services
(a) The Parties recognize that certain responsibilities and obligations are
imposed by federal and state securities laws and by the applicable
rules and regulations of stock exchanges, the National Association of
Securities Dealers, Inc., in-house "due diligence" or "compliance"
departments of Licensed Securities Firms, etc.; accordingly, Xx.
Xxxxxxxxx agrees that he will not:
(1) Release any financial or other material information or data
about Explorations without the prior written consent and
approval of Explorations' General Counsel;
(2) Conduct any meetings with financial analysts without informing
Explorations' General Counsel and board of directors in
advance of the proposed meeting and the format or agenda of
such meeting.
(b) In any circumstances where Xx. Xxxxxxxxx is describing the securities
of Explorations to a third party, Xx. Xxxxxxxxx shall disclose to such
person any compensation received from Explorations
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to the extent required under any applicable laws, including, without
limitation, Section 17(b) of the Securities Act of 1933, as amended.
(c) In rendering his services, Xx. Xxxxxxxxx shall not disclose to any
third party any confidential non-public information furnished by
Explorations or American Internet or otherwise obtained by it with
respect to Explorations, except on a need to know basis, and in such
case, subject to appropriate assurances that such information shall not
be used, directly or indirectly, in any manner that would violate state
or federal prohibitions on xxxxxxx xxxxxxx of Explorations' securities.
(d) Xx. Xxxxxxxxx shall not take any action which would in any way
adversely affect the reputation, standing or prospects of Explorations
or which would cause Explorations to be in violation of applicable
laws.
Article Three
Compensation
3.1 Compensation.
As consideration for Xx. Xxxxxxxxx'x services to Explorations, Xx.
Xxxxxxxxx shall be entitled to:
(a) (1) Compensation at the rate of $85.00 per hour of time
actually devoted to his duties as Explorations' chief
financial officer and controller as specified in Article 2.2,
as well as reimbursement for all reasonable expenses incurred
by him in the course of his duties, plus $1,000 each month in
Explorations' common stock provided further that until such
time as Explorations' stock is publicly trading, he shall
receive 2,000 shares of Explorations' common stock per month,
par value $0.01., provided that:
(A) He has not been discharged by Explorations for cause;
(B) He fully complies with the provisions of this
Agreement, including, without limitation, the
confidentiality and non-competition sections hereof.
(2) (A) The compensation specified above in subsection
(a) (1) shall be paid at the end of each month. All
compensation for services shall be deemed fully
earned as of the end of each month. Explorations
agrees that any stock certificates which are
delivered to Xx. Xxxxxxxxx pursuant to this agreement
will never be canceled by Explorations or at its
direction for any reason except by court order.
(B) The number of shares of stock issued pursuant to this
paragraph will be calculated based on the shares'
average closing transaction price, as reported on
such exchanges as the securities may be traded on or,
if not traded on any exchange, as reported on an
over-the-counter trading medium (such as the OTC
Bulletin Board), for the month then ending.
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(C) Stock certificates will be issued to Xxxx Xxxxxxxxx
or to his designee, if he so requests in writing.
Explorations will use reasonable efforts to assure
that its transfer agent delivers stock certificates
to Xx. Xxxxxxxxx within ten (10) days of the end of
each month in which Xx. Xxxxxxxxx performed the
requested services.
(3) Xx. Xxxxxxxxx hereby represents, warrants, covenants and
acknowledges that:
(A) The securities being issued as compensation under
this Agreement (the "Securities") will be issued
without registration under the provisions of Section
5 of the Securities Act or the securities regulatory
laws and regulations of the State of Florida (the
"Florida Act") pursuant to exemptions provided
pursuant to Section 4(6) of the Act and comparable
provisions of the Florida Act;
(B) Xx. Xxxxxxxxx shall be responsible for preparing and
filing any reports concerning this transaction with
the Commission and with Florida Division of
Securities, and payment of any required filing fees
(none being expected);
(C) All of the Securities will bear legends restricting
their transfer, sale, conveyance or hypothecation
unless such Securities are either registered under
the provisions of Section 5 of the Act and under the
Florida Act, or an opinion of legal counsel, in form
and substance satisfactory to legal counsel to
Explorations is provided to Explorations' General
Counsel to the effect that such registration is not
required as a result of applicable exemptions
therefrom;
(D) Explorations' transfer agent shall be instructed not
to transfer any of the Securities unless the General
Counsel for Explorations advises it that such
transfer is in compliance with all applicable laws;
(E) Xx. Xxxxxxxxx is acquiring the Securities for his own
account, for investment purposes only, and not with a
view to further sale or distribution; and
(F) Xx. Xxxxxxxxx or his advisors have examined
Explorations' books and records and questioned its
officers and directors as to such matters involving
Explorations as he deemed appropriate.
(4) In the event that Explorations files a registration or
notification statement with the Commission or any state
securities regulatory authorities registering or qualifying
any of its securities for sale or resale to the public as free
trading securities, it will notify Xx. Xxxxxxxxx of such
intent at least 15 business days prior to such filing, and
shall, if requested by him, include any shares theretofore
issued upon exercise of the Options in such registration or
notification statement, provided that Xx. Xxxxxxxxx cooperates
in a timely manner with any requirements for such registration
or qualification by notification, including, without
limitation, the obligation to provide complete and accurate
information therefor, and provided further that in conjunction
with any such registration, Xx. Xxxxxxxxx must comply with any
reasonable restrictions on sales of the registered securities
generally required by an underwriter of securities included in
such registration statement.
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(b) In addition to the compensation described above:
(1) In the event that Xx. Xxxxxxxxx arranges or provides funding
for the Consolidated Corporation on terms more beneficial than
those reflected in the Consolidated Corporation's current
principal financing agreements, copies of which are included
among the Consolidated Corporation's records available through
the SEC's XXXXX web site, Xx. Xxxxxxxxx shall be entitled, at
its election, to either:
(A) A fee equal to 5% of such savings, on a continuing
basis; or
(B) If equity funding is provided through Xx. Xxxxxxxxx
or any affiliates thereof, a discount of 5% from the
bid price for the subject equity securities, if they
are issuable as free trading securities, or, a
discount of 25% from the bid price for the subject
equity securities, if they are issuable as restricted
securities (as the term restricted is used for
purposes of SEC Rule 144); and
(C) If equity funding is arranged by Xx. Xxxxxxxxx and
the Colsolidated Corporation is not obligated to pay
any other source compensation in conjunction
therewith, other than the normal commissions charged
by broker dealers in securities in compliance with
the compensation guidelines of the NASD, then Xx.
Xxxxxxxxx shall be entitled to a bonus in a sum equal
to 5% of the net proceeds of such funding.
(2) In the event that Xx. Xxxxxxxxx generates business for the
Consolidated Corporation, then, on any sales resulting
therefrom, Xx. Xxxxxxxxx shall be entitled to a commission
equal to 5% of the net income derived by the Consolidated
Corporation therefrom, on a continuing basis.
3.2 Benefits
As an independent contractor, Xx. Xxxxxxxxx will not be entitled to any
benefits generally made available to Explorations employees, unless otherwise
agreed to in writing by Explorations' board of directors.
3.3 Indemnification.
Explorations will defend, indemnify and hold Xx. Xxxxxxxxx harmless from
all liabilities, suits, judgments, fines, penalties or disabilities, including
expenses associated directly, therewith (e.g. legal fees, court costs,
investigative costs, witness fees, etc.) resulting from any reasonable actions
taken by him in good faith on behalf of Explorations, its affiliates or for
other persons or entities at the request of the board of directors of
Explorations, to the fullest extent legally permitted, and in conjunction
therewith, shall assure that all required expenditures are made in a manner
making it unnecessary for Xx. Xxxxxxxxx to incur any out of pocket expenses;
provided, however, that Xx. Xxxxxxxxx permits Explorations to select and
supervise all personnel involved in such defense and that Xx. Xxxxxxxxx waives
any conflicts of interest that such personnel may have as a result of also
representing Explorations, their stockholders or other personnel and agrees to
hold them harmless from any matters involving such representation, except such
as involve fraud or bad faith.
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Article Four
Special Covenants
4.1 Confidentiality.
(a) Xx. Xxxxxxxxx acknowledges that, in and as a result of his engagement
hereunder, he will be developing for Explorations, making use of, acquiring
and/or adding to, confidential information of special and unique nature and
value relating to such matters as Explorations' trade secrets, systems,
procedures, manuals, confidential reports, personnel resources, strategic
and tactical plans, advisors, clients, investors and funders; consequently,
as material inducement to the entry into this Agreement by Explorations,
Xx. Xxxxxxxxx hereby covenants and agrees that he shall not, at anytime
during or following the terms of his engagement hereunder, directly or
indirectly, personally use, divulge or disclose, for any purpose
whatsoever, any of such confidential information which has been obtained by
or disclosed to him as a result of his engagement by Explorations, or
Explorations' affiliates.
(b) In the event of a breach or threatened breach by Xx. Xxxxxxxxx of any of
the provisions of this Section 4.1, Explorations, in addition to and not in
limitation of any other rights, remedies or damages available to
Explorations, whether at law or in equity, shall be entitled to a permanent
injunction in order to prevent or to restrain any such breach by Xx.
Xxxxxxxxx, or by Xx. Xxxxxxxxx'x partners, agents, representatives,
servants, employers, employees, affiliates and/or any and all persons
directly or indirectly acting for or with him.
4.2 Special Remedies.
In view of the irreparable harm and damage which would undoubtedly occur to
Explorations as a result of a breach by Xx. Xxxxxxxxx of the covenants or
agreements contained in this Article Four, and in view of the lack of an
adequate remedy at law to protect Explorations' interests, Xx. Xxxxxxxxx hereby
covenants and agrees that Explorations shall have the following additional
rights and remedies in the event of a breach hereof:
(a) Xx. Xxxxxxxxx hereby consents to the issuance of a permanent injunction
enjoining him from any violations of the covenants set forth in Section
4.1 hereof; and
(b) Because it is impossible to ascertain or estimate the entire or exact
cost, damage or injury which Explorations may sustain prior to the
effective enforcement of such injunction, Xx. Xxxxxxxxx hereby
covenants and agrees to pay over to Explorations, in the event he
violates the covenants and agreements contained in Section 4.2 hereof,
the greater of:
(i) Any payment or compensation of any kind received by him
because of such violation before the issuance of such
injunction, or
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(ii) The sum of One Thousand ($1,000.00) Dollars per violation,
which sum shall be liquidated damages, and not a penalty, for
the injuries suffered by Explorations as a result of such
violation, the Parties hereto agreeing that such liquidated
damages are not intended as the exclusive remedy available to
Explorations for any breach of the covenants and agreements
contained in this Article Four, prior to the issuance of such
injunction, the Parties recognizing that the only adequate
remedy to protect Explorations from the injury caused by such
breaches would be injunctive relief.
4.3 Cumulative Remedies.
Xx. Xxxxxxxxx hereby irrevocably agrees that the remedies described in
Section 4.3 hereof shall be in addition to, and not in limitation of, any of the
rights or remedies to which Explorations is or may be entitled to, whether at
law or in equity, under or pursuant to this Agreement.
4.4 Acknowledgment of Reasonableness.
Xx. Xxxxxxxxx hereby represents, warrants and acknowledges that he has
carefully read and considered the provisions of this Article Four and, having
done so, agrees that the restrictions set forth herein are fair and reasonable
and are reasonably required for the protection of the interests of Explorations,
its officers, directors and other employees; consequently, in the event that any
of the above-described restrictions shall be held unenforceable by any court of
competent jurisdiction, Xx. Xxxxxxxxx hereby covenants, agrees and directs such
court to substitute a reasonable judicially enforceable limitation in place of
any limitation deemed unenforceable and, Xx. Xxxxxxxxx hereby covenants and
agrees that if so modified, the covenants contained in this Article Four shall
be as fully enforceable as if they had been set forth herein directly by the
Parties. In determining the nature of this limitation, Xx. Xxxxxxxxx hereby
acknowledges, covenants and agrees that it is the intent of the Parties that a
court adjudicating a dispute arising hereunder recognize that the Parties desire
that this covenant not to compete be imposed and maintained to the greatest
extent possible.
4.5 Unauthorized Acts.
Xx. Xxxxxxxxx hereby covenants and agrees that he will not do any act or
incur any obligation on behalf of Explorations or American Internet of any kind
whatsoever, except as authorized by its board of directors or by its
stockholders pursuant to duly adopted stockholder action.
4.6 Covenant not to Disparage
Xx. Xxxxxxxxx hereby irrevocably covenants and agrees that during the term
of this Agreement and after its termination, he will refrain from making any
remarks that could be construed by anyone, under any circumstances, as
disparaging, directly or indirectly, specifically, through innuendo or by
inference, whether or not true, about the Consolidated Corporation, its
constituent members, or their officers, directors, stockholders, employees,
agent or affiliates, whether related to the business of the Consolidated
Corporation, to other business or financial matters or to personal matters.
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Article Five
Miscellaneous
5.1 Notices.
(a) All notices, demands or other communications hereunder shall be in
writing, and unless otherwise provided, shall be deemed to have been
duly given on the first business day after mailing by registered or
certified mail, return receipt requested, postage prepaid, addressed as
follows:
To Xx. Xxxxxxxxx:
Xxxx Xxxxxxxxx, 0000 Xxxxx Xxxxx Xxx, Xxxxxx, Xxxxxxx 00000;
Telephone (000) 000-0000; Facsimile (000) 000-0000; e-mail xxxxx@xxxxxxxxx.xxx
To Explorations:
Explorations Group, Inc.
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000-X; Xxxx Xxxxx,
Xxxxxxx 00000 Telephone (000) 000-0000, Fax (000) 000-0000; and,
e-mail xxxxxxxx@xxxxxxxxxxx.xxx;
Attention: President; with a copy to
Xxxxxxx X. Xxxxxxx, Secretary
Explorations Group, Inc.
0000 Xxxxxxxxx 00xx Xxxxxx, Xxxxx, Xxxxxxx 00000
Telephone (000) 000-0000, Fax (000) 000-0000; and,
e-mail, xxxxxxxxxx@xxxxxxxxxxxxxxx.xxx
or such other address or to such other person as any Party shall
designate to the other for such purpose in the manner hereinafter set
forth.
(b) (1) The Parties acknowledge that Yankees serves as a strategic
consultant to Explorations and has acted as scrivener for the
Parties in this transaction but that Yankees is neither a law
firm nor an agency subject to any professional regulation or
oversight.
(2) Because of the inherent conflict of interests involved,
Yankees has advised all of the Parties to retain independent
legal and accounting counsel to review this Agreement and its
exhibits and incorporated materials on their behalf.
(c) The decision by any Party not to use the services of legal counsel in
conjunction with this transaction shall be solely at their own risk,
each Party acknowledging that applicable rules of the Florida Bar
prevent Explorations' general counsel, who has reviewed, approved and
caused modifications on behalf of Explorations, from representing
anyone other than Explorations in this transaction.
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5.2 Amendment.
(a) No modification, waiver, amendment, discharge or change of this
Agreement shall be valid unless the same is in writing and signed by
the Party against which the enforcement of said modification, waiver,
amendment, discharge or change is sought.
(b) This Agreement may not be modified without the consent of a majority in
interest of Explorations' stockholders.
5.3 Merger.
(a) This instrument contains all of the understandings and agreements of
the Parties with respect to the subject matter discussed herein.
(b) All prior agreements whether written or oral, are merged herein and
shall be of no force or effect.
5.4 Survival.
The several representations, warranties and covenants of the Parties
contained herein shall survive the execution hereof and shall be effective
regardless of any investigation that may have been made or may be made by or on
behalf of any Party.
5.5 Severability.
If any provision or any portion of any provision of this Agreement, or the
application of such provision or any portion thereof to any person or
circumstance shall be held invalid or unenforceable, the remaining portions of
such provision and the remaining provisions of this Agreement or the application
of such provision or portion of such provision as is held invalid or
unenforceable to persons or circumstances other than those to which it is held
invalid or unenforceable, shall not be effected thereby.
5.6 Governing Law and Venue.
This Agreement shall be construed in accordance with the laws of the State
of Florida but any proceeding arising between the Parties in any matter
pertaining or related to this Agreement shall, to the extent permitted by law,
be held in Broward County, Florida.
5.7 Dispute Resolution.
(a) In any action between the Parties to enforce any of the terms of this
Agreement or any other matter arising from this Agreement, the
prevailing Party shall be entitled to recover its costs and expenses,
including reasonable attorneys' fees up to and including all
negotiations, trials and appeals, whether or not litigation is
initiated.
(b) In the event of any dispute arising under this Agreement, or the
negotiation thereof or inducements to enter into the Agreement, the
dispute shall, at the request of any Party, be exclusively resolved
through the following procedures:
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(1) (A) First, the issue shall be submitted to mediation
before a mediation service in Broward County,
Florida, to be selected by lot from four alternatives
to be provided, two by Explorations and two by Xx.
Xxxxxxxxx.
(B) The mediation efforts shall be concluded within ten
business days after their in itiation unless the
Parties unanimously agree to an extended mediation
period.
(2) In the event that mediation does not lead to a resolution of
the dispute then at the request of any Party, the Parties
shall submit the dispute to binding arbitration before an
arbitration service located in Broward County, Florida to be
selected by lot, from four alternatives to be provided, two by
Explorations and two by Xx. Xxxxxxxxx.
(3) (A) Expenses of mediation shall be borne by Explorations, if
successful.
(B) Expenses of mediation, if unsuccessful and of
arbitration shall be borne by the Party or Parties
against whom the arbitration decision is rendered.
(C) If the terms of the arbitral award do not establish a
prevailing Party, then the expenses of unsuccessful
mediation and arbitration shall be borne equally by
the Parties.
5.8 Benefit of Agreement.
(a) This Agreement may not be assigned by Xx. Xxxxxxxxx without the prior
written consent of Explorations.
(b) Subject to the restrictions on transferability and assignment contained
herein, the terms and provisions of this Agreement shall be binding
upon and inure to the benefit of the Parties, their successors,
assigns, personal representative, estate, heirs and legatees.
5.9 Captions.
The captions in this Agreement are for convenience and reference only and
in no way define, describe, extend or limit the scope of this Agreement or the
intent of any provisions hereof.
5.10 Number and Gender.
All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular or plural, as the identity of the Party or
Parties, or their personal representatives, successors and assigns may require.
5.11 Further Assurances.
The Parties hereby agree to do, execute, acknowledge and deliver or cause
to be done, executed or acknowledged or delivered and to perform all such acts
and deliver all such deeds, assignments, transfers, conveyances, powers of
attorney, assurances, recipes, records and other documents, as may, from time to
time, be required herein to effect the intent and purposes of this Agreement.
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5.12 Status.
Nothing in this Agreement shall be construed or shall constitute a
partnership, joint venture, agency, or lessor-lessee relationship; rather, the
relationship established hereby is that of independent contractor to
Explorations, as the term "independent contractor" is defined by the United
States Internal Revenue Service. In conjunction therewith, Xx. Xxxxxxxxx shall
be responsible for his own tax reporting and payment obligations, and shall have
the sole and exclusive responsibility and liability for making all reports and
contributions, withholdings, payments and taxes to be collected, withheld, made
and paid with respect to the services to be performed hereunder, whether
pursuant to any social security, unemployment insurance, worker's compensation
law or other federal, state or local law now in force in effect or hereafter
enacted. In amplification of the foregoing, except as otherwise may be agreed by
the Parties in writing, Xx. Xxxxxxxxx shall be responsible for providing his own
office facilities and supporting personnel.
5.13 Counterparts.
(a) This Agreement may be executed in any number of counterparts.
(b) Execution by exchange of facsimile transmission shall be deemed legally
sufficient to bind the signatory; however, the Parties shall, for
aesthetic purposes, prepare a fully executed original version of this
Agreement, which shall be the document filed with the Commission.
5.14 License.
(a) This Agreement is the property of Yankees and the use hereof by the
Parties is authorized hereby solely for purposes of this transaction.
(b) The use of this form of agreement or of any derivation thereof without
Yankees' prior written permission is prohibited.
(c) This Agreement shall not be more strictly interpreted against any Party
as a result of its authorship.
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In Witness Whereof, the Parties have executed this Agreement, effective
as of the date set forth above.
Signed, Sealed & Delivered
In Our Presence
Xx. Xxxxxxxxx
--------------------------
-------------------------- /s/ Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxx
Explorations Group, Inc.,
a Delaware corporation
--------------------------
__________________________ By: /s/ Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxxxx
President
(CORPORATE SEAL)
Attest: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Secretary
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