EXHIBIT 10.4
WEBSITE SERVICES AGREEMENT
AGREEMENT made this ___ day of _____________, 1999 by and
between __________________________ ("[__________]"), a ________corporation with
principal offices located at _________________________, and XXXXXXXXXXXXX.XXX,
INC. ("MainStreet"), a Delaware corporation with principal offices at 000 Xxxxxx
Xxxx, Xxxxx Xxxxxxxxx, XX 00000.
WHEREAS, MainStreet maintains a site on the World Wide Web
(the "Website") having a uniform resource locator address ("URL") at
xxx.XxxxXxxxxxXXX.xxx or such other URLs as may hereinafter be registered, which
has been established to provide corporations with the opportunity to make public
offerings of their stock through a final prospectus covered by a registration
statement declared effective by the United States Securities and Exchange
Commission (a "Registered Prospectus") by way of electronic auction to members
of the public in states of the United States of America where such offerings are
duly authorized by the laws of the said respective states and of the United
States through the use of the space and technology of the Website; and
WHEREAS, [__________] is desirous of making an initial public
offering of its securities (the "Offering") and wishes to take advantage of the
facilities of the Website in connection with such Offering.
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, the parties agree as follows:
1. MAINSTREET SERVICES. Subject to [__________]'s fulfilling all of the terms
and conditions hereinafter set forth, MainStreet shall provide the following
services (the "Services"):
(a) PUBLICATION OF OFFERING MATERIALS. In order to enable [__________] to
offer and sell its securities to members of the public, MainStreet shall (i)
publish on the Website any preliminary or "red xxxxxxx" prospectus (as the same
may be amended from time to time, the "Red Xxxxxxx") of [__________] during the
period following the date on which [__________] files a registration statement
containing such Red Xxxxxxx with the Securities and Exchange Commission (the
"SEC") until the date on which such registration statement is declared effective
by the SEC (such period, the "Waiting Period"), (ii) publish on the Website the
Registered Prospectus of [__________] for a period of at least 90 consecutive
calendar days following the effective date of such Registered Prospectus (such
period, the "Offering Period"), and (iii) from the commencement of the Waiting
Period until the end of the Offering Period (such period, the "Publication
Period"), publish the name of [__________] on the Home Page of the Website
together with a brief description of [__________]'s business, which description
shall be provided by [__________] and shall be consistent with the summary
portion of [__________]'s Registered Prospectus as filed with the SEC.
(b) TRAFFIC/SUPPORT. MainStreet shall design, maintain, administer and
manage the Website so that (i) during the Publication Period, users of the
Website shall have continual access to [__________]'s Red Xxxxxxx and Registered
Prospectus, as the case may be, (ii) during the Publication Period, users of the
Website shall be unable to link to [__________]'s website from the Website, and
(iii) during the Offering Period, users of the Website shall be able to submit
bids on the securities of [__________] offered therein, and MainStreet shall
record and transmit all bidding information to [__________], its designated
independent auditors and transfer agent using its "Dutch Auction" technology in
the manner contemplated by the parties and timely deliver to [__________] the
results of such "Dutch Auction" bidding. Such maintenance, administration and
management shall include, but shall not be limited to, insuring sufficient
bandwidth equivalent to 45 megabytes per second ("MBPS") to facilitate
continuous data traffic on the Website of [__________]'s Red Xxxxxxx and
Registered Prospectus, as the case may be, and any and all bids submitted by
users during the Offering Period for the purchase of [__________] stock.
2
(c) INFORMATION TO BE PROVIDED. MainStreet shall provide to [__________]
and its designated representatives on a daily basis during the Offering Period,
in a format specified by [__________], access to all information regarding bids
placed through the Website on [__________] securities covered by the Offering
(the "Bid Data"), including each bidder's residential address, email address,
Social Security number, telephone number and bid price. MainStreet agrees to
obtain the affirmative consent of each bidder on [__________] stock on the
Website to the sharing of all information collected by MainStreet with respect
to such bidder with [__________]. At the end of the Offering Period, MainStreet
shall turn over the Bid Data to [__________], and the Bid Data shall be owned by
and be the exclusive property of [__________] and MainStreet shall be entitled
to receive copies thereof.
2. MAINSTREET'S RELATIONSHIP TO [__________]. MainStreet is acting
hereunder solely as a provider of website services to [__________] and, solely
for the purposes of this Agreement and the subject matter herein, shall not be
deemed an agent of [__________]. Nothing contained herein nor the provision of
the Services by MainStreet hereunder shall be construed or intended to mean or
imply that MainStreet is engaged in selling [__________]'s securities, or that
MainStreet is acting in any capacity as an underwriter as that term is defined
under Section 2(a)(11) of the Securities Act of 1933 (the "Act"), or that
MainStreet is acting as a broker, dealer or member of a selling group, or that
MainStreet is acting as an agent, affiliate, patron or joint venturer of
[__________] or as an underwriter as that term may be defined under any federal,
state or local law within the United States. In addition, nothing contained
herein shall constitute a representation or warranty by MainStreet that the
offering will be fully or partially sold within the Offering Period.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) MainStreet hereby represents and warrants to and agrees with
[__________] as follows:
(i) MainStreet is duly incorporated, validly existing and in good standing
under the laws of the State of Delaware, and has full corporate power and
authority to execute, deliver and perform this Agreement. This Agreement has
been duly and validly executed and delivered by MainStreet and constitutes the
legal, valid and binding obligation of MainStreet, enforceable against it in
accordance with its terms.
(ii) As of the date hereof, MainStreet has no reason to believe that the
execution, delivery and performance by MainStreet of this Agreement and the
consummation by it of the transactions contemplated hereby will conflict with or
violate any existing provision of law, rule or regulation, and such execution,
delivery, performance and consummation will not, with or without the giving of
notice, the lapse of time or both, conflict with or violate (A) any
3
order, judgment or decree applicable to MainStreet or binding upon its assets or
properties, (B) any provision of the by-laws or certificate of incorporation of
MainStreet or (C) any agreement or other instrument applicable to MainStreet or
binding upon its assets or properties.
(iii) MainStreet is the sole and exclusive owner of or otherwise has the
right to use and distribute all materials and methodologies used in connection
with the Website and the Services, and the use of such materials and
methodologies and the provision of the Services do not and will not (A) breach,
conflict with or constitute a default under any agreement or other instrument
applicable to MainStreet or binding upon its assets or properties or (B)
infringe upon any trademark, trade name, service xxxx, patent, copyright or
other proprietary right of any other person or entity.
(iv) To the best of MainStreet's knowledge, the Website, as designed and as
hereafter modified, does not and will not violate any federal, state or local
law or regulation; neither MainStreet nor the Website is the subject of any
disciplinary proceeding; and MainStreet will comply with all applicable federal,
state and local laws in the performance of its obligations hereunder.
(v) MainStreet will operate the Website in such a manner as to be able to
determine and verify the state of residency of each bidder on [__________]
securities using the Website and will not accept any bids from any person
residing in a state where the securities have not been so registered or
qualified for sale.
(vi) To the best of MainStreet's knowledge, no consent, approval or
authorization of, or exemption by, or filing with, any governmental authority or
any third party is required to be obtained or made by MainStreet in connection
with the execution, delivery and performance of this Agreement, the provision to
[__________] of the Services hereunder or the taking by MainStreet of any other
action contemplated hereby.
(vii) There is no pending or, to the best knowledge of MainStreet,
threatened claim, action or proceeding against MainStreet, or any affiliate
thereof, with respect to the execution, delivery or consummation of this
Agreement or the provision of the Services hereunder, or with respect to the
Website and its contents and, to the best knowledge of MainStreet, there is no
basis for any such claim, action or proceeding.
(viii) MainStreet is, to the best of its knowledge, in compliance with all
federal and state privacy laws, is a member in good standing of the On Line
Privacy Alliance, and shall adhere to the information gathering, dissemination,
privacy protection and other practices specified by such organization.
4
(ix) In connection with the Offering, MainStreet agrees that it shall not
(A) engage in selling [__________]'s securities or act in any capacity as an
underwriter, or agent of an underwriter, as that term is defined under any
federal, state or local securities law, (B) act as a broker, dealer or member of
a selling group, or as an agent thereof, or (C) act as an agent, affiliate,
patron or joint venturer of [__________]. MainStreet further represents and
warrants that it has not heretofore engaged in any of the activities described
in clauses (A), (B) and (C) of this Section 3(a)(ix) and that it has not
received, nor is it entitled to receive, any consideration from [__________] for
the Services hereunder other than the fee provided for in Section 6 of this
Agreement.
(x) MainStreet is familiar with Rules 134 and 135 promulgated under the
Securities Act of 1933, as amended, is not in violation of such rules, and shall
not knowingly take any action that will cause [__________] to be in violation of
such rules.
(xi) MainStreet shall not display any information regarding [__________] on
the Website other than the Red Xxxxxxx and Registered Prospectus provided to
MainStreet by [__________] and such other information as shall from time to time
be provided or approved for display on the Website by [__________], and
MainStreet agrees not to modify or alter in any way any information provided to
MainStreet by [__________] for display on the Website.
(xii) MainStreet will render the Services using sound, professional
practices and in a competent, diligent and professional manner by knowledgeable,
trained and qualified personnel.
(b) [__________] hereby represents, warrants and covenants to MainStreet as
follows:
(i) [__________] is duly incorporated, validly existing and in good
standing under the laws of the State of Delaware, and has full corporate power
and authority to execute, deliver and perform this Agreement. This Agreement has
been duly and validly executed and delivered by [__________] and constitutes the
legal, valid and binding obligation of [__________], enforceable against it in
accordance with its terms.
(ii) As of the date hereof, [__________] has no reason to believe that the
execution, delivery and performance by [__________] of this Agreement and the
consummation by it of the transactions contemplated hereby will conflict with or
violate any existing provision of law, rule or regulation, and such execution,
delivery, performance and consummation will not, with or without the giving of
notice, the lapse of time or both, conflict with or violate (A) any order,
judgment or decree applicable to [__________] or binding upon its assets or
properties, (B) any provision of the by-laws or certificate of incorporation of
5
[__________] or (C) any agreement or other instrument applicable to [__________]
or binding upon its assets or properties.
(iii) To the best of [__________]'s knowledge, no consent, approval or
authorization of, or exemption by, or filing with, any governmental authority or
any third party is required to be obtained or made by [__________] in connection
with the execution, delivery and performance of this Agreement, the receipt by
[__________] of the Services hereunder or the taking by [__________] of any
other action contemplated hereby.
(iv) There is no pending or, to the best knowledge of [__________],
threatened claim, action or proceeding against [__________], or any affiliate
thereof, with respect to the execution, delivery or consummation of this
Agreement or the receipt of the Services hereunder and, to the best knowledge of
[__________], there is no basis for any such claim, action or proceeding.
(v) With respect to the Offering, [__________] shall at all times fully
comply with all applicable present and future provisions of the laws of the
United States and Filing States, including but not limited to the filing of any
post-effective amendments to the registration statement covering the Offering,
including the Registered Prospectus.
(vi) At all times during the Offering Period, [__________] shall not
publish or disseminate through any medium information, including financial
information, concerning [__________] that is not fully consistent with
[__________]'s Registered Prospectus or that is not in compliance with Section 5
of the Securities Act of 1933, as amended.
4. CONDITIONS TO OBLIGATIONS OF THE PARTIES.
(a) COMPLIANCE WITH SEC. At least five (5) business days prior to the
publication of [__________]'s Registered Prospectus on the Website, a
registration statement filed by [__________] with the SEC with respect to the
Offering shall have been declared effective by the SEC. Proof thereof in form
satisfactory to MainStreet's counsel must be furnished to MainStreet's counsel
prior to the commencement of the Offering Period.
(b) DELIVERY OF RED XXXXXXX AND REGISTERED PROSPECTUS. At least five (5)
business days before the publication of either [__________]'s Red Xxxxxxx or
Registered Prospectus, as the case may be, on the Website, [__________] shall
deliver to MainStreet a printed and an electronic version (floppy diskette,
CD-ROM, or DVD) of such Red Xxxxxxx or Registered Prospectus, as the case may
be.
(c) COMPLIANCE WITH FILING STATES. [__________] shall have (i) duly
completed all filings required by the laws of those states (the "Filing States")
in which [__________] intends to offer its securities and shall have notified
each Filing State of its plan of
6
distribution and (ii) furnished to MainStreet's counsel, at least five business
days prior to the commencement of the Offering Period, satisfactory proof that
the Offering has been approved or qualified for sale in each of the Filing
States.
(d) APPOINTMENT OF TRANSFER AGENT.
(i) [__________] shall have retained American Stock Transfer & Trust
Company or such other transfer agent as reasonably approved by MainStreet to act
as transfer agent (the "Transfer Agent") for [__________] in connection with the
issuance of its shares pursuant to the Offering and to further act as escrow
agent (the "Escrow Agent") for the receipt of the funds representing bids for
the purchase of [__________] stock through the facilities of the Website.
[__________] shall furnish to counsel for MainStreet copies of the appointment
of such Transfer Agent and Escrow Agent together with all executed contracts as
may be required by such Transfer Agent and Escrow Agent.
(ii) MainStreet shall execute such contracts with such Transfer Agent and
Escrow Agent as may be required by such Transfer Agent and Escrow Agent and
shall deliver copies of the same to [__________].
(e) APPOINTMENT OF INDEPENDENT AUDITORS. [__________] shall appoint as
independent auditors the Independent Accountants named in [__________]'s
Registered Prospectus, or such other accountants as shall be reasonably
acceptable to MainStreet, for the purpose of examining and certifying the bids
received during the Offering Period. [__________] shall furnish MainStreet with
a written acknowledgment from said auditors that they agree to undertake such
examination and certification of all bids at the close of the Offering Period
and to furnish said certification to the Transfer Agent with instructions
regarding the delivery of securities, the refund of any bids and the delivery of
funds representing the proceeds of the offering to [__________].
(f) EXCHANGE LISTING. Prior to the commencement of the Offering Period,
[__________] shall have applied for listing on one of the following exchanges:
NASDAQ National Market, the American Stock Exchange ("AMEX") or the New York
Stock Exchange ("NYSE"). At or prior to the completion of the Offering Period,
[__________] shall have been formally accepted for listing on one of the
aforementioned exchanges, which listing shall take effect upon the completion of
the Offering. In the event [__________] is unable to obtain approval to list on
one of such exchanges, this Agreement shall automatically terminate, the parties
shall have no further obligations hereunder, and RCS shall be entitled to a full
refund of all monies paid to MainStreet through the date of such termination.
(g) SECRETARY'S CERTIFICATE. Contemporaneously with the execution of this
Agreement, each party shall have delivered to the other party a certificate
certifying as to such
7
party's articles of incorporation, bylaws and resolutions attached thereto and
other corporate proceedings of such party relating to the authorization,
execution and delivery of this Agreement.
(h) LIMITATIONS ON TRAFFIC BETWEEN THE WEBSITE AND [__________]'S WEBSITE.
Prior to the commencement of the Publication Period, the parties shall
coordinate to ensure that the Website and [__________]'s website are designed
and function in such a manner that users of [__________]'s website shall be able
to link to the Website but that users of the Website shall not be able to link
to [__________]'s website.
5. SITE RESPONSIBILITY. MainStreet shall be solely responsible for the
development, operation and maintenance of the Website and for all materials that
appear on the Website, other than materials provided to MainStreet by
[__________] for posting on the Website. Such responsibilities include, but are
not limited to:
(a) ensuring the technical operation of the Website and all related
equipment;
(b) ensuring the accuracy and appropriateness of materials posted on the
Website;
(c) ensuring that materials posted on the Website do not violate any law,
rule or regulation, or infringe upon the rights of any third party (including,
for example, copyright, trademarks, privacy or other personal or proprietary
rights);
(d) providing technical support and customer service to [__________] and
users of the Website 24 hours a day, seven days a week; and
(e) ensuring that materials posted on the Website are not libelous or
otherwise illegal.
6. CONSIDERATION. In consideration for the Services to be provided by
MainStreet hereunder, [__________] shall pay MainStreet one hundred thousand
dollars ($100,000). Simultaneously with the execution of this Agreement by the
parties hereto, [__________] shall pay to MainStreet the sum of twenty-five
thousand ($25,000.00) dollars as initial payment on account of the full
consideration, receipt of which is hereby acknowledged by MainStreet. Upon the
completion of the Offering Period, [__________] shall instruct the Escrow Agent
to deduct from the proceeds of the Offering the sum of seventy-five thousand
dollars ($75,000.00) and remit such sum directly to MainStreet. In the event
that fewer than all of the shares offered in the Offering have been sold within
the Offering Period , the sum of seventy-five thousand ($75,000.00) shall
nonetheless be due and payable to MainStreet within ten (10) days after the
termination of the Offering Period. Notwithstanding anything to the contrary
contained herein, no portion of the balance payment of $75,000 shall be due
unless a [__________] Registered Prospectus is actually published on the
Website.
8
7. COLLECTION OF FUNDS. In connection with the Offering, [__________] shall
be responsible for arranging for the collection of funds from bidders on the
shares offered, the return of any funds and the delivery of all securities
through its duly appointed Transfer Agent and Escrow Agent. Nothing contained
herein shall create any obligation on the part of MainStreet to insure the
collection of any funds, the return of any funds or the delivery of any
securities with respect to bids made on shares of [__________] stock. Bidders on
[__________] securities shall be directed to transmit all funds to the appointed
Transfer Agent or Escrow Agent. In the event MainStreet shall receive any funds
from any bidder on [__________] stock, MainStreet shall immediately transfer
such funds to the appointed Transfer Agent or Escrow Agent.
8. THE BIDDING PROCESS. It is understood and agreed that the bidding price
for [__________] stock shall be determined in accordance with a "Dutch style
auction," which for the purposes of this Agreement shall mean the following.
Prior to the Offering Period, [__________] shall, at the time of listing on the
Website, establish the number of shares to be offered and sold and the minimum
acceptable bid price to [__________] for each share. The winning bid price to be
paid by all bidders shall be the highest bid (the "Deciding Bid") received prior
to the termination of the Offering Period at which [__________] is able to
dispose of all the shares covered by the Offering; PROVIDED that such bid is
greater than or equal to the minimum acceptable bid price as established by
[__________]. Any bidder who bid in excess of the Deciding Bid shall be entitled
to a refund of the excess over the Deciding Bid.
9. SYSTEM FAILURE. In the event that the Website encounters technical
difficulties with hardware, software, or connectivity such that users are unable
to view [__________]'s Red Xxxxxxx or Registered Prospectus and/or place bids,
MainStreet shall extend the Offering Period by the period of time that the
Website or the information on the Website was inaccessible to users; PROVIDED
that if such technical difficulties last for more than 48 consecutive hours,
[__________] shall have the right to cancel this Agreement and get a full refund
of all monies paid to MainStreet in connection herewith.
10. TERMINATION. This Agreement may be terminated and the transactions
contemplated herein abandoned at any time prior to the termination of the
Offering Period:
(a) By mutual written consent of the parties;
(b) By MainStreet in the event of:
(i) Any written representation by [__________] or its officers, directors,
agents, servants or employees that MainStreet is acting in any capacity other
than as a provider of Website hosting services.
9
(ii) Any material misrepresentation or omission of a material fact in
[__________]'s Registered Prospectus.
(iii) Any material misrepresentation by [__________] regarding the
effectiveness of its Registered Prospectus.
(iv) Any material misrepresentation regarding the status of the State
Filings.
(v) Any failure by [__________] to file a post-effective amendment to its
registration statement covering the Offering where such post-effective amendment
is required by law.
(vi) Any misrepresentation or course of conduct by [__________] that causes
any material injury to the business reputation of MainStreet.
(c) By [__________] in the event of:
(i) MainStreet's dissemination of any information with respect to
[__________] other than [__________]'s Red Xxxxxxx and Registered Prospectus and
any other information specifically approved by [__________] for dissemination by
MainStreet.
(ii) Any representation by MainStreet, its officers, directors, servants or
employees that MainStreet's relationship with [__________] is other than that of
a provider of Website hosting services.
(iii) Any material failure by MainStreet to provide the Services herein.
(iv) Any misrepresentation or course of conduct by MainStreet that causes
any material injury to the business or reputation of [___________].
(d) If the Agreement is terminated by [__________] for any of the above
reasons, [__________] shall be entitled to a full refund of all consideration
paid to MainStreet through the date of such termination.
(e) The termination of this Agreement shall in no way limit any obligation
or liability of either party based on or arising from a breach or default by
such party with respect to any of its representations, warranties, covenants or
agreements contained in this Agreement at or before the date of termination.
11. INDEMNIFICATION. In no event shall MainStreet be liable to [__________]
for any indirect, special or consequential damages or lost profits arising out
of or related to this Agreement or the performance or breach hereof, even if
MainStreet has been advised of the possibility thereof. Notwithstanding the
foregoing, each party shall indemnify, defend and hold
10
harmless the other party, its officers, directors, shareholders, owners,
employees, agents, successors and assigns from and against all losses, damages,
liabilities, deficiencies or obligations, including, without limitation, all
claims, actions, suits, proceedings, demands, judgments, assessments, fines,
interest, penalties, costs and expenses (including settlement costs and
reasonable legal, accounting, experts and other fees, costs and expenses)
incident or relating to or resulting from the foregoing resulting from or
arising out of (A) any breach of any of such indemnifying party's
representation, warranty, covenant, obligation or agreement made herein or (B)
the negligence or wilful misconduct of such indemnifying party.
12. INTELLECTUAL PROPERTY RIGHTS.
(a) Subject to the terms and conditions of this Agreement, [__________]
hereby grants to MainStreet a non-exclusive, non-transferable, limited license
to reproduce and display the [__________] trademarks and logos provided by
[__________] to MainStreet hereunder (the "[__________] Trademarks") on the
Website solely in connection with MainStreet's fulfilling its obligations under
this Agreement; PROVIDED, HOWEVER, that MainStreet shall not make any specific
use of any [__________] Trademarks without first submitting a sample of such use
to [__________] and obtaining [__________]'s prior consent, which consent shall
not be unreasonably withheld, and further provided that any such [__________]
Trademarks are contained in the Registered Prospectus. Such license shall
terminate upon the earlier of the termination of this Agreement in accordance
with Section 10 or the end of the Offering Period, whereupon MainStreet shall
immediately remove all [__________] Trademarks from the Website.
(b) Subject to the terms and conditions of this Agreement, MainStreet
hereby grants to [__________] a non-exclusive, non-transferable, limited license
to reproduce and display the MainStreet trademarks and logos (the "MainStreet
Trademarks") solely in connection with the public offering of [__________]
stock. Such license shall terminate upon the effective date of the expiration or
termination of this Agreement, and [__________] shall immediately cease using
all MainStreet Trademarks.
(c) Each party agrees to reproduce, and agrees not to remove or obscure,
any proprietary rights legends (such as copyright and trademark notices, among
others) included with any content provided by the other party in connection with
this Agreement.
(d) Each party hereby covenants and agrees that the trademarks, trade
names, service marks, copyrights and other proprietary rights of the other party
are and shall remain the sole and exclusive property of that party and neither
party shall hold itself out as having any ownership rights with respect thereto
or, except as specifically granted hereunder, any other rights therein. In
addition, except as expressly permitted hereunder, each party hereby covenants
11
and agrees that it will make no use of the trademarks, trade names, service
marks, copyrights and other proprietary rights of the other party. Any and all
goodwill associated with any such rights shall inure directly and exclusively to
the benefit of the owner thereof.
13. PUBLICITY. Neither party may (a) create, publish, distribute or permit
any written material that makes reference to the other party without first
submitting such material to the other party and receiving its prior written
consent, or (b) disclose to the public or any third party the relationship
between the parties or the terms of or the transactions contemplated by this
Agreement without receiving the other party's prior written consent, except as
may be required by law. Notwithstanding the foregoing, MainStreet is permitted
to disclose that it has entered into this Agreement but may not identify
[__________] as a party to the Agreement until such time as the Red Xxxxxxx of
[__________] is published on the Website.
14. CONFIDENTIALITY. Except as otherwise provided or with the consent of
the other party hereto, each of the parties agrees that all information
concerning the other party or any of its affiliates provided by or on behalf of
any of them shall remain strictly confidential and secret unless such
information is generally known or available to the public through a source or
sources other than such party hereto or its affiliates. Notwithstanding the
foregoing, each party hereto is hereby authorized to deliver a copy of any such
information (a) to any person pursuant to a subpoena issued by any court or
administrative agency, (b) to its accountants, attorneys and other agents on a
confidential basis and (c) otherwise as required by applicable law, regulation
or legal process including, without limitation, the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder and the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder.
15. ARBITRATION. Any claims or disputes arising out of or related to this
Agreement must be brought no later than one year after the date when the event,
act or omission upon which such claim or dispute is predicated first arises and
all such claims or disputes shall be resolved by binding arbitration to be held
in New York City before three arbitrators in accordance with the Commercial
Rules of Arbitration of the American Arbitration Association. Judgment upon the
award rendered by the arbitrators may be entered in any court.
16. GENERAL.
(a) This Agreement shall be deemed made under the internal laws of the
State of New York and shall be interpreted in accordance with the laws of such
state.
(b) This is the entire agreement between the parties relating to the
subject matter thereof, and it may not be modified, except by a written
amendment thereto executed by authorized representatives of both parties.
12
(c) Where any statement made herein is limited as to the knowledge of the
party making such statement, such knowledge shall be based on the advice of
counsel and appropriate due diligence.
(d) This Agreement and all rights hereunder may not be assigned by
[__________] or MainStreet.
(e) All notices, requests, demands and other communications required or
permitted to be given under this Agreement shall be in writing and shall be
deemed given if (i) mailed, registered or certified mail, return receipt
requested, postage prepaid, (ii) delivered by hand, (iii) sent by facsimile
transmission, or (iv) delivered by courier, to the following addresses, or at
such other address as such party shall designate by like notice:
(i) If to [__________]:
To the address set forth on the first page
hereof, Facsimile: ____________, Attention:
____________
With copies to:
________________________, Facsimile:
____________, Attention: ________________
(ii) If to MainStreet:
to the address set forth on the first page
hereof, Facsimile: _________________, Attention:
_____________________
13
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized representatives and to be
effective as of the date first above written.
XXXXXXXXXXXXX.XXX, INC., a Delaware corporation
By: ________________________________
Xxxxxx Xxxxxxx, President
______________________, a _________
corporation
By: ________________________________
Name:
Title:
14
