JOINT VENTURE AGREEMENT
THIS AGREEMENT entered into on the 1st day of September 1999 (the
"Agreement Date"), by and among Xxxxxxxx.xxx Inc., a Georgia corporation
(the "RCI'), and Best of Naples, Inc., a Florida corporation ("BONI").
WHEREAS, RCI owns certain rights associated with a web site known as
xxx.xxxxxxxxxxxxxxxxx.xxx (the "Web Site"), including the right to the
domain name for the Web Site, the common law trademark rights to the Web
Site, the copyrights to certain web pages utilized on the Web Site, and
other contractual rights associated with the Web Site (collectively, the
"Web Site Rights");
WHEREAS, RCI and BONI have agreed to enter into a joint venture for the
purpose of developing and marketing the Web Site and related products;
WHEREAS, the parties have entered into this Agreement to set forth the
terms of their joint venture.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is acknowledged by the parties, and in consideration of
the mutual covenants set forth herein, the parties hereby agree as follows:
1. Formation of Xxxxxxxxxxxxxxxxx.xxx, Inc. At or before Closing, RCI
will form a Florida corporation by the name of Xxxxxxxxxxxxxxxxx.xxx, Inc.
("ECI") All expenses of, formation of ECI will be borne by RCI, and will be
reimbursed from the loan described in paragraph 3 herein.
2. Capital Contribution of RCI. At Closing, RCT will license the Web
Site Rights to ECI for 60% of the common stock in ECI. Such license will
provide, inter alia, that it will terminate, and all rights in the Web Site
Rights shall revert to RCI, in the event ECI shall file for bankruptcy,
have an involuntary bankruptcy filed against it, have a receiver appointed
for it, or cease operating for sixty (60) consecutive days.
3. Loan by RCI. At the Closing, RCI will loan ECI $150,000. Such loan
will bear interest at 7% per annum simple interest, and shall be payable in
full with all accrued interest ten years after the date of the loan.
However, no distributions shall be made to the stockholders of ECI prior to
full payment of the loan without the consent of RCI. The loan win be
evidenced by a promissory note substantially in the form of that promissory
note attached hereto as Exhibit A.
4. Employment Agreements. At Closing, the BONIs will enter into
employment agreements with ECI containing such compensation terms that the
parties may agree to prior to Closing in the projections developed pursuant
to paragraph 4 herein, and will be issued 40% shares of conm3on stock in
ECI.
5. Governance of GVP. At Closing, five persons will be appointed to
the board of directors of ECI, three of whom shall be nominees of the RCI
and two of whom shall be nominees of BONI. The Chairman shall be one of the
nominees of the RCI. The officers of ECI shall be as follows: Xxxxx Xxx -
President & CEO; Xxxxxxx Xxxx - Vice President & Chairman of Board; Xxxxx
Xxxxx - Secretary; Xxxxx Xxxxx - Treasurer. At Closing, RCI and BONI will
enter into a shareholders' agreement containing terms to be negotiated by
the parties, which agreement shall provide, inter alia, that ECI may not
amend its articles of incorporation, enter into any merger agreement, or
sale substantially all of its assets unless approved by both RCI and BONI.
6. Closing. Closing is conditioned on (a) the successful completion of
RCI's current offering under SEC Rule 504, (b) the parties' agreement on
the projections to be developed in paragraph 4 herein, (e) the parties
agreement on the terms of employment agreements for BONI and a
shareholders' agreement among the parties, and (d) the parties agreement to
all other documents necessary to document the transactions contemplated by
this Agreement. Closing will take place in the offices of Xxxxxxx, Xxxxxx &
Xxxxxxxxx P.C. (hereinafter, the "Closing") at a date and time to be
mutually agreed upon by the parties following the satisfaction of the
conditions to Closing.
7. Closing Costs. Each party shall be responsible for the cost of its
attorneys or other professionals retained by such person in connection with
the negotiation and consummation of this Agreement.
8. Termination of Agreement. This Agreement will terminate in the
event all of the conditions to Closing have not been satisfied within
ninety days of the Agreement Date, in which event neither party shall have
any liability to the other party.
9. Broker's Fee. RCI represents to BONI that RCI has not engaged any
broker or agent in regard hereto or to the sale and purchase of the Web
Site Rights, and RCI hereby agrees to indemnify BONI and hold BONI harmless
against all liability, loss, cost, damage and expense (including, without
limitation, attorneys' fees and cost of litigation) BONI shall ever suffer
or incur because of any claim by any broker or agent claiming by, through
or under RCI, whether or not meritorious, for any fee, commission or other
compensation with respect hereto or to the sale and purchase of the Web
Site Rights. BONI represents to RCI that they have not engaged any broker
or agent in regard hereto or to the sale and purchase of the Web Site
Rights, and BONI hereby agrees to indemnify RCI and hold RCI harmless
against all liability, loss, cost, damage and expense (including, without
limitation, attorneys' fees and cost of litigation) RCI shall ever suffer
or incur because of any claim by any broker or agent claiming by, through
or under BONI, whether or not meritorious, for any fee, commission or other
compensation with respect hereto or to the sale and purchase of the Web
Site Rights.
10. Exclusivity. So long as this Agreement remains in effect, RCT will
not market, negotiate for the sale of or convey or encumber any portion of
the Web Site Rights.
11. Arbitration. Any disputes between RCI and BONI to enforce the terms
of this Agreement or involving the interpretation or meaning of this
Agreement shall be resolved by binding arbitration in Atlanta, Georgia or
Naples, Florida.
12. Miscellaneous Provisions.
a) No Waivers. No failure or delay on the part of any party in exercising
any right, power, privilege or remedy arising hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any right,
power, privilege or remedy preclude any other or future exercise thereof or
the exercise of any other right, power, privilege or remedy. No notice to
or demand on any party in any case shall entitle it to any other or further
notice or demand in similar or other circumstances.
b) Multiple Counterparts . This Agreement may be executed in any number of
counterparts, each of which shall constitute an original.
c) Headings: Interpretation. Section headings have been inserted in this
Agreement as a matter of convenience and for reference only and it is
agreed that such section headings are not a part of this Agreement and
shall not be used in the interpretation of any provision of this Agreement.
Whenever used herein, the singular shall include the plural, the plural
shall include the singular, and the use of any gender shall be applicable
to all genders.
d) Successors and Assigns. This Agreement shall be binding upon and shall
insure to the benefit of the parties hereto and their respective successors
and assigns, except as otherwise provided herein. Except as provided in the
preceding sentence, there are no third party beneficiaries.
e) Governing Law. This Agreement and the rights and obligations of the
parties hereunder shall be governed by and interpreted in accordance with
the laws of Florida.
f) Modifications. No modification, amendment or waiver of any provision of
this Agreement, nor any consent to any departure by any party from the
terms hereof shall be effective unless the same be in writing and signed by
all parties hereto.
g) Entire Agreement. This Agreement constitutes the entire and complete
agreement between the parties hereto and all prior agreements,
understandings, obligations or statements by and between the parties
concerning the subject matter hereof will be merged into and be superseded
by this Agreement and shall be of no further force and effect. There are
no third-party beneficiaries to this Agreement, either intended or
unintended.
h) Survival. This Agreement and the representations, warranties and
covenants contained herein shall survive consummation of the transactions
herein contemplated for a period of four (4) years.
i) Attorney's Fees. In the event any party hereto files a lawsuit in
connection with this Agreement then the party which prevails in such action
shall be entitled to recover, in addition to all other remedies and
damages, reasonable attorney's fees and costs of court incurred in such
lawsuit.
j) Notices. All notices required or permitted hereunder, and under any
instrument delivered pursuant hereto, shall be given in writing, and shall
be deemed to have been given and received upon the earlier to occur of: (a)
the actual receipt of any such notice by the intended recipient; and (b)
the third business day following deposit of any such notice enclosed in a
wrapper with postage prepaid, properly addressed to the intended recipient
at its address set forth below, as a certified item, return receipt
requested, in an official depository of and under the care and custody of
the United States Postal Service. The parties' address for notice shall be
as follows:
If to the BONI:
Xxxxx Xxx and Xxxxx Xxxxx
0000 Xxxxxxx Xxxxx Xxxxx
0xx Xxxxx
Xxxxxx, Xxxxxxx 00000
If to RCI:
Xxxxxxx X. Xxxx
Xxxxxxxx.xxx, Inc.
0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
(000) 000-0000
and
Xxxxxx X. Xxxxxxx, Esq.
Xxxxxxx Xxxxxx & Xxxxxxxxx P.C.
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxxxx 00000
(000) 000-0000
Any party hereto may change its address for notice set forth herein by
giving the other parties at least 1O days advance written notice of such
change of address.
IN WITNESS WHEREOF, the parties have set their hands and seals the
date set forth above.
XXXXXXXX.XXX, INC., a Georgia
Corporation
/s/ Xxxxxxx Xxxx
By: Xxxxxxx X. Xxxx, President
BEST OF NAPLES, INC., a Florida
Corporation
/s/ Xxxxx Xxx
By: /s/ Xxxxx Xxx
Its: President
