EXHIBIT 10.9
RIGHTS AND BENEFITS ASSIGNMENT AGREEMENT
THIS RIGHTS AND BENEFITS ASSIGNMENT AGREEMENT ("Agreement"), is made
effective as of December 14, 2001, between NET INTEGRATED SYSTEMS LTD., a
Bermuda corporation ("Assignor"), VANESSA CAPITAL INC, a Belize corporation
("Assignee One"), FIRENZA INVESTMENTS INC., a Belize corporation ("Assignee
Two"), and TARULAR, LTD., a Bahamian corporation ("Assignee Three"). Assignee
One, Assignee Two and Assignee Three are sometimes herein referred to
individually as "Assignee" and collectively as "Assignees." Assignor and/or
Assignees are sometimes herein referred to individually as a "party" and
collectively as the "parties."
R E C I T A L S
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WHEREAS, this Agreement is entered into in connection with that certain
management agreement or agreements (collectively or separately "Management
Agreement") of even date herewith between Assignor, as Manager, and Accesspoint
Corporation, a Nevada corporation ("APC") and/or Processing Source
International, Inc., a California corporation ("PSI"), as the managed companies;
WHEREAS, Assignor desires to assign certain rights and benefits under
the Management Agreement to Assignees;
WHEREAS, Assignees desire to accept such assignment, subject to the
terms and conditions of this Agreement.
WHEREAS, all parties hereto desire to enter into this Agreement,
NOW, THEREFORE, in consideration of the mutual covenants and promises
set forth in this Agreement, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. GRANT OF PROFIT PARTICIPATION RIGHTS. Assignor hereby assigns and grants
Assignees the right to receive fifty Percent (50%) of any profit received or
gain realized by Assignee from any sale by Assignee of shares of any securities
of APC or PSI now owned or hereafter acquired by Assignor pursuant to the
exercise of any option agreement between Assignor and any of Xxx X. Xxxxxxxxx,
Access Holdings Limited Partnership or Xxxxxx Xxxxxx or by way of any other
transfer from any of the above persons or entities. Assignor shall promptly pay
to Assignees any and all such amounts assigned hereunder as set forth below.
2. CONSULTATION RIGHTS. Assignor hereby agrees to consult with Assignees in all
substantially material or significant management decisions to be made by
Assignor under the Management Agreement. As used herein substantially material
or significant management decisions shall be deemed to include: (i) those items
enumerated at Section 2 of the Management Agreement pertaining to manager's
duties and authorities, and (ii) those items enumerated at Section 4 of the
Management Agreement pertaining to certain acts and events. Assignees shall have
the right to provide Assignor with input and advice in such matters, which
Assignee agrees
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to give due consideration to in its deliberations, but Assignor reserves to
itself the unfettered right to make all management decisions in its sole
discretion and best business judgment.
3. NOTICE AND PAYMENT. Assignor shall promptly provide Assignees with written
notice of the payment or receipt by Assignor of any and all payments or other
monetary benefits under the Management Agreement as set forth at Section 1,
above, and/or the disposition of any securities of APC or PSI as set forth at
Section 2, above. Assignor shall promptly pay to Assignees the amounts set forth
at Sections 1 and 2, above, in United States currency, as contemplated herein.
4. CONFIDENTIALITY. Unless specified in writing otherwise by the party providing
the same, all information pertaining to any party hereto or to APC or PSI, is
and shall remain confidential. The above information shall include, but not be
limited to, all computer programs, software, source codes, computations, data
files, algorithms, techniques, processes, designs, specifications, drawings,
charts, plans, schematics, computer disks, magnetic tapes, books, files,
records, reports, documents, Instruments, agreements, contracts, correspondence,
letters, memoranda, financial, accounting, sales, purchase and employment data,
capital structure information, business organizational information, and
information pertaining to contractors, vendors, suppliers, customers and
clients. Notwithstanding the foregoing, confidential information shall not
include: (i) any information which is recorded in any county or filed with any
public body and available for public inspection or which may be otherwise
generally available to the public, through no unauthorized act of any party or
its agents or employees; and (ii) information that is required to be disclosed
pursuant to applicable law, including any court order or subpoena. all
confidential information and other items, whether or not directly furnished or
prepared by any party or its agents or employees, is and shall remain the
property of the party who originally produced the same. Each party and its
agents and employees shall:
4.1. Not directly or indirectly divulge, disclose, disseminate,
distribute, license, sell or otherwise make known any confidential information
to any third party or person or entity not expressly authorized or permitted by
the providing party to receive such confidential information.
4.2. Use best efforts to prevent disclosure of any confidential
information to any third party and exercise the highest degree of care and
discretion in accordance with all express duties hereunder to prevent the same.
4.3. Except as otherwise set forth herein above, and subject to the
provisions of this Agreement pertaining to software escrow and mirror site
facilities, not directly or indirectly make any use whatsoever of the
confidential information or of any feature, specification, detail or other
characteristic contained in or derived from, the confidential information,
except for purposes of performing services hereunder.
4.4. Return to the other parties all confidential information or other
items then in its possession or control, or that of its agents or employees,
including originals, reproductions, replications and photocopies thereof, at any
time upon request by any other party or upon the termination of this Agreement
for any reason.
5. MISCELLANEOUS.
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5.1. NON-WAIVER OF BREACH. No delay or failure by either party to
detect, protest, or remedy the failure of the other party to perform an
obligation under this Agreement will constitute a waiver of the aggrieved
party's rights. No waiver of any provision of this Agreement or any rights or
obligations of either party hereunder will be effective, except pursuant to a
written instrument signed in advance by an authorized officer of the party or
parties waiving compliance; any such waiver will be effective only in the
specific instance and for the specific purpose specified in such writing.
5.2. RELATIONSHIP OF PARTIES. Nothing contained herein will be deemed
or construed as creating a joint-venture, franchise, partnership, agency or
similar relationship between the parties. All parties agree that no other party
or parties hereto may bind any other party or parties to any legal obligation
hereunder, or otherwise act on behalf of any party or parties purported to be
bound, without the prior written consent of the party or parties to be bound.
5.3. HEADINGS NOT CONTROLLING; SEVERABILITY; LANGUAGE OF THE CONTRACT.
The headings of this Agreement are provided for convenience and will not control
the interpretation of the Agreement. In the event that any provision hereof is
found invalid or unenforceable by any court or tribunal of competent
jurisdiction, the remainder of this Agreement will remain valid and enforceable.
All parties agree that the English language shall be the language for
interpretation of this Agreement.
5.4. ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding and agreement between the parties with respect to the subject
matter of the Agreement and supersedes any prior or contemporaneous oral or
written communications with respect to the subject matter hereof, all of which
are merged herein. This Agreement may not be amended or in any way altered
except by a written instrument signed by the party to be charged.
5.5. NOTICES. Any notices permitted, or required to be given between
the parties hereto will be made in writing and sent by certified,
return-receipt-requested mail, or by hand delivery with receipt obtained. Except
as specifically provided above, notices will be deemed delivered on the date of
receipt. Notices will be sent to the addresses noted below which may be changed
upon written notice:
To Assignee One:
VANESSA CAPITAL INC.
X.X. Xxx X-0000, #X0
Xxxxxx, Xxxxxxx
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To Assignee Two:
FIRENZA INVESTMENTS INC.
X.X. Xxx X-0000, #X0
Xxxxxx, Xxxxxxx
To Assignee Three:
TARULAR, Ltd.
P.O. Box N-3247
Nassau, Bahamas
To Assignor:
NET INTEGRATED SYSTEMS, INC.
Xxxxx Xxxxx
00 Xxxxxx Xxxxxx
Xxxxxxxx XX XX
BERMUDA
With copy to (which copy shall not constitute notice):
Xxxxxxx X. Xxxxxx
c/o Sheraton Gateway Hotel
Penthouse Suite
0000 X. Xxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
5.6 SPECIFIC PERFORMANCE. Each party's obligations under this Agreement
are unique. If any party should default in its obligations under this Agreement,
the parties each acknowledge that it would be extremely impracticable to measure
the resulting damages; accordingly, the nondefaulting party, in addition to any
other available rights or remedies, may xxx in equity for specific performance
without the necessity of posting a bond or other security, and the parties each
expressly waive the defense that a remedy in damages will be adequate.
5.7. RECOVERY OF LITIGATION COSTS. If any legal action or any
arbitration or other proceeding is brought for the enforcement of this
Agreement, or because of an alleged dispute, breach, default or
misrepresentation in connection with any of the provisions of this Agreement,
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the successful or prevailing party or parties shall be entitled to recover as an
element of their damages, reasonable attorneys' fees and other costs incurred in
that action or proceeding, in addition to any other relief to which they may be
entitled.
5.8. ASSIGNMENT. This Agreement may not be assigned by any party
without the written consent of all remaining parties hereto. To the extent such
consent to assignment shall be obtained, this Agreement shall be binding on, and
shall inure to the benefit of, the parties to it and their respective heirs,
legal representatives, successors and assigns.
5.8. GOVERNING LAW; VENUE. This Agreement will be construed and
enforced in accordance with, and the rights of the parties will be governed by,
the laws of Bermuda, without regard to or application of conflict of laws
principles. Venue in any action arising by reason of this Agreement shall lie
exclusively in Hamilton, Bermuda, or such judicial or jurisdictional court
division in which the City of Xxxxxxxx, Bermuda may otherwise lie.
5.9. FORUM SELECTION. Any litigation hereunder shall be brought and
litigated exclusively in the courts sitting in Hamilton, Bermuda, or such
judicial or jurisdictional court division in which the City of Xxxxxxxx, Bermuda
may otherwise lie. All parties hereto consent to the personal jurisdiction of
such courts and waive any defense of forum non conveniens. Each party hereby
irrevocably waives, to the fullest extent permitted by law, any objection that
it may now or hereafter have to the laying of the venue of any such action, suit
or proceeding brought in such a court and any claim that any such action, suit
or proceeding brought in such a court has been brought in an inconvenient forum.
IN WITNESS WHEREOF, the parties hereto have made this Agreement
effective as of the date first above written, and that they have read,
understood, agreed to be bound by, and received a copy of, this Agreement.
ASSIGNOR:
NET INTEGRATED SYSTEMS LTD.,
a Bermuda corporation
By: /s/ XXXXXXX X. XXXXXX
____________________________
Xxxxxxx X. Xxxxxx, President
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ASSIGNEE ONE:
VANESSA CAPITAL INC.,
a Belize corporation
By: /s/ XXX X. XXXXXXXXX
_________________________
Xxx X. Xxxxxxxxx, Officer
ASSIGNEE TWO:
FIRENZA INVESTMENTS INC.,
a Belize corporation
By: /s/ XXXXX X. XXXXXXX
_________________________
Xxxxx X. Xxxxxxx, Officer
ASSIGNEE THREE:
TARULAR, Ltd.
a Bahamian corporation
By: /s/ XXXXXX XXXXXX
______________________
Xxxxxx Xxxxxx, Officer
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