LETTER OF INTENT FOR NEGOTIATION AND INFORMATION EXCHANGE
This Letter of Intent for Negotiation and Information Exchange
("Agreement") is effective as of the 21st day of January, 2000
between Empire Financial Holdings, Incorporated, a Florida
Corporation with its principal place of business/residing at 0000
Xxxx Xxxxx Xxxx 000, Xxxxxxxx, Xxxxxxx 00000 ("Party 1") and
xXxxxxxx0Xxxxx.xxx, Incorporated, a Nevada Corporation with its
principal place of business/residing at 0000 Xxxxx Xxxx, # 000,
Xxxxxx Xxxxx, Xxxxxxxxxx 00000 ("Party 2").
General
Party 1 is engaged in securities business as a "full service "
stock brokerage firm, which includes Internet securities
transactions. Party 1 is waiting for SEC approval to become a
"clearing firm house".
Party 2 is engaged in the business of sales, marketing, and
licensing of computer software products that execute cash (ATM)
and credit card transactions via the Internet and other mediums.
The parties propose entering into an agreement concerning the
Beta testing for "same as cash" ATM transactions via Internet
brokerage accounts (the "Deal").
Since November of 1999, the parties have had discussions
concerning the Deal during which they determined that further
negotiations would be appropriate. As it is expected that these
subsequent negotiations will involve frequent communications,
including the exchange of proprietary information, they agree as
follows.
Agreement
Except for Sections 2.3, 3, 4, 5, 7 and this section, all of
which are legally binding and each of which survive any cessation
of negotiations or termination of this Agreement, this Agreement
is only a statement of intent to conduct further negotiations and
does not constitute a binding Agreement in any respect. Such a
binding Agreement will arise only when all material terms have
been set forth in a definitive written agreement, or sets of
agreements, executed by both parties (the "Final Agreement").
All drafts, term sheets, memoranda, and other communications
prepared or exchanged in the course of negotiations, even if
signed by one or both Contacts (defined below), are preliminary
and have no legal effect unless subsequently incorporated into a
Final Agreement. Notwithstanding this, the parties agree to
negotiate in good faith the terms of a Final Agreement.
1. Negotiations
1.1 Designation of Negotiators. The following persons (the
"Contacts") will represent the parties in the negotiations: For
Party 1, Xxx Xxxxxx and Xxxxx Xxxxx. For Party 2, Xxxxxx Xxxxx.
Either party may replace their Contact(s) by giving written
notice to the other party.
2. Conduct of Negotiations
2.1 The parties desire to execute a Final Agreement by March 30, 2000
(the "Target Date"). The Contacts will in good faith talk
regularly, schedule negotiations, and coordinate all exchanges of
information, including recommendations, drafts, and proposals. A
timetable setting forth the preliminary schedule of negotiations
is attached as Exhibit A. A reasonable number of employees,
agents, and advisers may accompany the Contacts at meetings and
negotiations.
2.2 No less than one executive(s) of both parties will meet to review
the progress of the negotiations, and to identify and clarify
issues. Following each meeting, the parties will decide whether
to continue or terminate their negotiations. The meetings may be
in person or via telephone and email. These meetings shall be no
less than once per week.
The parties will negotiate with the goal of including the
following items in the Final Agreement:
1. Defining who contributes what, as well as who prepares specifications.
2. Setting forth ownership rights of the parties in past, present
and future works.
3. The respective rights of the parties to use any developed works,
including the right to license or sublicense others and the right
to make derivative works.
4. Who pays for costs and expenses incurred.
5. Structure of transaction fees or royalties.
6. Defining obligations regarding future development, modifications
and enhancements.
7. Competitive restrictions.
2.3 No Simultaneous Negotiations. So long as the parties are
actively engaged in negotiations with each other, both agree not
to directly or indirectly enter into negotiations or arrangements
with any third parties engaged in, for Party 1: computer software
related to monetary and credit card transactions via the Internet
or any other "Network" medium; for Party 2: any brokerage firm
(B/D) engaged in Internet transactions that are the same as, or
functionally equivalent to the subject of these negotiations.
3. Costs and Expenses of Negotiation
3.1 Each party will bear its own costs and expenses.
3.2 In the event that the parties agree to select a meeting location
other than at their respective offices. The costs will be equally
shared.
4. Protection of Information
4.1 The parties agree to conspicuously xxxx all information exchanged
or created in the course of negotiations as "Confidential
Information." The receiving party along with its affiliates,
agents, and employees (collectively, "Recipient"), may not use
this Confidential Information for any purpose, including the
manufacture, design or sale of the Recipient's products and
services. The Recipient's use of the Confidential Information is
subject only to: (1) authorization, for a five (5) year period
commencing from the date of receipt, to refrain from revealing
any Confidential Information to third parties not engaged in
these negotiations by using the same care and discretion that the
Recipient employs to protect its own documents that it does not
want disclosed, and (2) the originating party's trademarks,
copyrights, and patent rights that it may not interfere or
otherwise use.
4.2 Any copies of the Confidential Information should be marked and
treated as such.
4.3 If a Final Agreement has not been executed, then upon termination
of this Agreement, the parties agree to return the other's
Confidential Information, including all copies.
4.4 The parties agree to use their best efforts to avoid disclosure
of the fact or object of their negotiations and to restrict all
internal communications concerning the negotiations to those
recipients to whom such information must be disclosed in order to
effectively conduct the negotiations. Except as otherwise
required by law, the parties agree not to issue any press
releases or make any public announcements regarding the
negotiations without the prior written approval of the other.
4.5 Despite any captions, headings, or restrictions regarding
proprietary matters or any nondisclosure notices or policy
statements contained in the Confidential Information, this
Section 4 constitutes the sole and exclusive agreement of the
parties concerning the Confidential Information and any
information exchanged or disclosed in connection with the
negotiations.
4.6 If the negotiations result in a Final Agreement, the Final
Agreement may contain further terms and conditions respecting
confidentiality)".
5. Limitation of Liability
Despite Section 4, neither party will make a claim against, or be
liable to, the other party or its affiliates or agents for any
damages, including, without limitation, lost profits or injury to
business reputation, resulting from the continuation or
abandonment of negotiations and the consequences of same. Neither
party will make a claim against, or be liable to, the other party
or its affiliates or agents for any special, incidental, or
consequential damages, including, without limitation, lost
profits, based on any breach, default, or negligence of such
other party, its affiliates, or agents with respect to Section
2.3 of this Agreement.
6. Term
This Letter of Intent will remain in effect until either party
gives written notice of its intention to abandon further
negotiations, or until superseded by the execution of the Final
Agreement.
7. Other
7.1 Equitable Relief. Each party acknowledges and agrees that, if
there is any breach of this Letter of Intent, including, without
limitation, unauthorized use or disclosure of Confidential
Information or other information of the other party, the non-
breaching party will suffer irreparable injury that cannot be
compensated by monetary damages and therefore will not have an
adequate remedy at law. Accordingly, if either party institutes
an action or proceeding to enforce the provisions of this Letter
of Intent, such party will be entitled to obtain such injunctive
relief, specific performance, or other equitable remedy from a
court of competent jurisdiction as may be necessary or
appropriate to prevent or curtail any such breach, threatened or
actual. These will be in addition to and without prejudice to
such other rights as such party may have in law or in equity.
7.2 Entire Agreement. The parties acknowledge that this Letter of
Intent expresses their entire understanding and agreement, and
that there have been no warranties, representations, covenants or
understandings made by either party to the other except such as
are expressly set forth in this section. The parties further
acknowledge that this Letter of Intent supersedes, terminates and
otherwise renders null and void any and all prior or
contemporaneous agreements or contracts, whether written or oral,
entered into between Party 1 and Party 2 with respect to the
matters expressly set forth in this Letter of Intent.
8. Fax or Email. Signatures on documents sent via fax or email,
including this "Agreement," shall be deemed an "original
signature" and is legally binding.
We have carefully reviewed this Letter of Intent and agree to and
accept its terms and conditions. We are executing this Letter of
Intent as of the day and year first written above.
PARTY 1: PARTY 2:
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxxx Xxxxx
Xxxxx Xxxxx Xxxxxx Xxxxx
President/CEO President/CEO
Empire Financial Holdings, Inc. xXxxxxxx0Xxxxx.xxx, Inc.
