EXHIBIT 10.11
Agreement
This Agreement, by and between XXXX.xxx, Inc., a Delaware corporation
("NMxS"), and Xxxxxxx Xxxxxxxx ("Xxxxxxxx"), is entered on the date of the
latter of the signatures of NMxS and Xxxxxxxx below.
1. Background.
1.1. Whereas, NMxS and Xxxxxxxx have previously entered into an
Independent Account Representative Agreement (hereinafter the "IAR
Agreement"), in which Xxxxxxxx agreed to provide certain services to
NMxS and NMxS agreed to compensate Xxxxxxxx by Commissions and
Nonqualified Stock Options (as defined in the IAR Agreement);
1.2. Whereas, NMxS has already issued the total of Nonqualified Stock
Options (hereinafter the "Options") called for in the IAR Agreement,
and some but not all of the Options have vested;
1.3. Whereas, Xxxxxxxx has performed services for NMxS under the IAR
Agreement which might obligate NMxS to pay Commissions to Xxxxxxxx;
1.4. Whereas, NMxS and Xxxxxxxx desire to cease Xxxxxxxx'x service to
NMxS, and to discharge all remaining obligations of NMxS to Xxxxxxxx
by issuance of stock in NMxS to Xxxxxxxx;
1.5. Now, therefore, in consideration of the mutual terms and conditions
set forth herein, and other consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
2. Stock to be issued to Xxxxxxxx. As soon as reasonably practicable after
execution of this Agreement, NMxS shall issue to Xxxxxxxx 75,000 shares
of restricted common stock of NMxS.
3. Discharge of Obligations. The stock issuance above shall discharge all
obligations of NMxS under the IAR Agreement, including without
limitation the obligations to pay Primary Commissions (as defined in the
IAR Agreement) and Residual Commissions (as defined in the IAR
Agreement), for Xxxxxxxx'x activities both before and after the date of
this Agreement. Xxxxxxxx shall retain the already-vested Options, but no
more Options shall vest.
4. Restricted Securities; Sales Of Shares Received.
4.1. Xxxxxxxx represents that he is aware that the shares to be issued
to him have not been registered pursuant to the Securities Act of
1933, as amended (the "1933 Act"), or any state securities act, and
thus will be restricted securities as defined in Rule 144 promulgated
by the SEC. Therefore, under current interpretations and applicable
rules, Xxxxxxxx will probably have to retain such shares for a period
of at least one year from the date of issuance and at the expiration
of such one year period its sales may be confined to brokerage
transactions of limited amounts requiring certain notification
filings with the SEC and such disposition may be available only if
NMxS is current in its filings with the SEC under the Securities
Exchange Act of 1934, as amended, or other public disclosure
requirements.
4.2. Xxxxxxxx covenants and warrants that the shares to be received
are acquired for his own account and not with the present view
towards the distribution thereof and it will not
NMxS/Xxxxxxxx Agreement; Page 1
dispose of such shares except (i) pursuant to an effective
registration statement under the 1933 Act, or (ii) in any other
transaction which, in the opinion of counsel acceptable to NMxS, is
exempt from registration under the 1933 Act, or the rules and
regulations of the SEC thereunder. In order to effectuate the
covenants of this subsection, an appropriate legend will be placed
upon each of the certificates of common stock issued pursuant to
this Agreement, and stop transfer instructions shall be placed with
the transfer agent for the securities.
4.3. Xxxxxxxx represents and warrants that he has such knowledge and
experience in business and financial matters that he is capable of
evaluating the risks of the transactions contemplated hereby, and
that the financial capacity of Xxxxxxxx is of such proportion that
the total cost of its commitment in the shares would not be material
when compared with its total financial capacity. Upon the written
request of NMxS, Xxxxxxxx shall provide NMxS with evidence of
compliance with the requirements of any federal or state exemption
from registration relied upon in connection with the issuance of
shares as set forth in this Agreement.
4.4. Xxxxxxxx represents that prior to entering into this Agreement,
he acquired sufficient information about NMxS to reach an informed
knowledgeable decision to accept the shares in this transaction. In
particular, Xxxxxxxx acknowledges access to and/or receipt of all
documents filed electronically by NMxS with the SEC and available on
the SEC web site at xxx.xxx.xxx.
4.5. Xxxxxxxx has had the opportunity to question and receive answers
from representatives of NMxS concerning the terms and conditions of
the proposed investment and the business of the Company. Xxxxxxxx
represents and warrants that he has reviewed NMxS's filings with the
SEC. In addition, Xxxxxxxx has received all requested additional
information and documents necessary to verify the accuracy of the
information furnished in NmxS's filings with the SEC. Xxxxxxxx
represents that he has a preexisting personal or business
relationship with NMxS or one of its officers, directors, or
controlling persons, or, by reason of his business or financial
experience, he has the capacity to protect his interests in
connection with this transaction.
5. Entire Agreement; Modification; Waiver. This Agreement constitutes the
entire agreement between or among the parties pertaining to the subject
matter contained in it and supercedes all prior and contemporaneous
agreements, representations, and understandings of the parties,
including, but not limited to, the IAR Agreement. No supplement,
modification, or amendment of this Agreement will be binding unless
executed in writing by all the parties or the applicable parties to be
bound by such amendment. No waiver of any of the provisions of this
Agreement will constitute a waiver of any other provision, whether or
not similar, nor will any waiver constitute a continuing waiver. No
waiver will be binding unless executed in writing by the party making
the waiver.
6. Counterparts; Facsimile Execution. This Agreement may be executed in
any number of counterparts and all such counterparts taken together
shall be deemed to constitute one instrument. Delivery of an executed
counterpart of this Agreement by facsimile shall be equally as effective
as delivery of a manually executed counterpart of this Agreement. Any
party delivering an executed counterpart of this Agreement by facsimile
also shall deliver a manually
NMxS/Xxxxxxxx Agreement; Page 2
executed counterpart of this Agreement, but the failure to deliver a
manually executed counterpart shall not affect the validity,
enforceability, or binding effect of this Agreement.
7. Drafting. This Agreement was drafted with the joint participation of
the parties and/or their legal counsel. Any ambiguity contained in this
Agreement shall not be construed against any party as the draftsman, but
this Agreement shall be construed in accordance with its fair meaning.
8. Binding on Successors. This Agreement will be binding on, and will
inure to the benefit of, the parties to it and their respective heirs,
legal representatives, successors, and assigns.
9. Governing Law. This Agreement will be construed in accordance with, and
governed by, the laws of the State of New Mexico as applied in contracts
that are executed and performed entirely in the State of New Mexico.
10. Severability. If any provision of this Agreement is held invalid or
unenforceable by any court of final jurisdiction, it is the intent of
the parties that a valid and enforceable provision most closely
reflecting the intent of the parties be substituted therefore, and that
all other provisions of this Agreement be construed to remain fully
valid, enforceable, and binding on the parties.
In witness whereof, the parties hereto have executed this Agreement the day
and year written above.
XXxX.xxx, Inc. Xxxxxxx Xxxxxxxx
by: /s/ Xxxxxxx Xxxxxxxx /s/ Xxxxxxx Xxxxxxxx
Xxxxxxx Xxxxxxxx, President
date: 8/31/01 date: 8/31/01
NMxS/Xxxxxxxx Agreement; Page 3
