EXHIBIT 10.11
AGREEMENT
This Agreement is entered into on April 7, 1999, by and between,
XxxxxxxxxXxx.xxx, Inc., a Nevada corporation with offices at 000 Xxxx Xxxxx,
Xxxxx 000, Xxxxxxxxx Xxxxxxx, XX 00000 (hereinafter referred to as "Buyer"), and
Xx. Xxxx Xxxxxx, and Daily Stocks, Inc., the latter being a Delaware
Corporation, both of whom are domiciled at 000 X. 000 Xx., Xxx. 0X, Xxx Xxxx, XX
00000 for the purpose of this Agreement (hereinafter collectively referred to as
"Seller").
Whereas, it is the desire of the parties to this Agreement effectuate the sale
and transfer of the assets known as XxxxxXxxxxx.xxx, XxxxxXxxxxx.xxx, and all
property of every nature related thereto, (hereinafter the "Assets").
Now, Therefore, the parties agree as follows:
1. Description of the Assets. The Assets are as follows:
1.1 The Internet domain name "XxxxxXxxxxx.xxx" is registered in
the name of DailyStocks, Inc.
1.2 The Internet domain name "XxxxxXxxxxx.xxx" is registered in
the name of Xxxx Xxxxxx 0000 Xxxxxxx Xxxxx, #X, Xxx Xxxxxxx,
XX 00000 according to the records of InterNIC.
1.3 All computer programs, computer codes, contracts and other
documentation and information related to the Assets,
including all intellectual property rights related thereto.
2. Ownership and Authority: The Seller warrants and represents that it has
full title and/or equitable ownership of the above described assets, and that
Xx. Xxxxxx has full authority to bind the Seller corporation to this Agreement
in all respects.
3. Terms and Conditions of Transfer:
3.1 Buyer shall compensate Seller pursuant to the provisions of
Paragraph 5.1(b) and 5.2 of this Agreement upon Seller's
performance of the following:
3.2 The provision of reasonable technical assistance, not to exceed
ten (10) hours per week for a period of no more than three
months, including traveling to and rendering technical services
and consulting to Buyer at its place of business in order to
complete the transfer of the web sites content to Buyer and to
insure that the web sites are fully installed and operational in
accordance with Buyer's requirements. If necessary, Buyer will
provide Xx. Xxxxxx with accommodations at either its corporate
apartment or comparable hotel in the Orlando area and will
reimburse Xx. Xxxxxx for his airfare and ground transportation
costs during his stay.
3.3 Relinquishment of the Domain names for the 2 web sites currently
registered with InterNIC, and consummation of the transfer of all
title and interest held by Seller in the Assets to the Buyer,
including the execution of all documents that may be necessary,
including all those related to the Seller's intellectual property
rights in the Assets.
3.4 The transfer or assignment of all contractual rights with all
third parties related directly or indirectly to the Assets, and
the payment of all liabilities related directly and indirectly
thereto.
3.5 Seller shall disclose to Buyer all marketing efforts engaged in
with respect to the Assets over the past six months, and shall
deliver the Seller all contracts and other documentation related
thereto, and amounts paid therefor, so that such marketing
efforts may be appropriately taken into account by the Buyer with
respect to the Assets site traffic.
4. In the event the average number of page views calculated by the Buyer
is less than 1.25 million per month, and same is or may be reasonably
assumed to be due to technical failures during the audit period, the
Seller shall have the option of canceling this agreement; however,
Seller must first give Buyer the opportunity to purchase the Assets
for 130,000 shares, or for such lesser number of shares (which is
higher than the average number calculated by the Buyer), and must
first receive the Buyer's refusal to consummate the purchase for the
offered number of shares (which refusal must be received within 5
working days of receipt thereof), in order to have the right to
cancel. In the event Buyer does not respond within the 5 days set
forth herein, Seller may cancel this Agreement, with no liability to
the Buyer. In the event the Seller communicates his intent to cancel
this Agreement, he shall include with said communication the $20,000
payment made pursuant to Paragraph 5.1(a), below.
5. Compensation - Buyer will compensate Seller for the sale and transfer of
the Assets, as well as for all technical assistance, as follows:
5.1 The sum of $40,000, as follows,
(a) $20,000 upon execution of this Agreement.
(b) $20,000 upon the transfer of all the Assets.
5.2 A maximum of One Hundred Thirty Thousand (130,000) shares of
XxxxxxxxxXxx.xxx, Inc. stock, according to the formula and
subject to adjustments set forth herein, as follows:
(a) The exact amount of stock to be paid shall be based upon
the number of "page views" received by the two web sites
described in Paragraph 1 per month. A "page view" is
defined as; "a single request by a user to view a file
which represents the single file comprising all files
included in a single web page; all such files are denoted
by their file extension ".htm", ".html", "cgi", "php3",
"php" or "cgi-bin". No co-branded pages are to be
included in the page view count. The number of page views
shall be calculated in the following manner:
(b) The Buyer will verify the number of page views during the
month prior to the execution of this Agreement and the
number of page views during the month following the
execution of this Agreement, and shall determine the
exact number of page views received during each of the
verified months.
(c) The total number of page views during each of the two
verified months shall be added together and divided by
two in order to obtain the average number of page views
received over the aforedescribed two month period.
(d) Buyer shall issue to Seller 8 6/10 (8.6) shares of stock
for each one hundred page views. Thus, the formula shall
be; average number of page views divided by 100 times
8.6, minus any number in excess of 130,000.
(d) The exact number of shares to be issued shall be
determined exclusively by the Buyer, who shall rely upon
reports produced by Analog 2.0, a Unix software program
already residing on the server. Buyer shall have the
unrestricted right to employ any other method of audit
that he may choose, including the use of his own
software, and Seller agrees to cooperate accordingly.
(e) All shares paid under this Agreement shall be issued and
delivered as soon as administratively feasible following
closing.
6. Shares:
The shares to be paid to the Seller are "restricted" shares. The
transferability of the Shares is restricted by the Securities Act of
1933 as, as amended (the "Act"), and applicable state securities laws
and regulations, and the shares will not be eligible to be sold unless
they are subsequently registered or an exemption from registration is
available. The certificates representing such shares will bear
appropriate legends referring to the restrictions on resale and
transferability imposed by the Act and applicable state securities
laws and regulations.
7. Obligations of Seller.
7.1 All accounts payable and other liabilities related to the Assets up to
the date of closing shall be paid by the Seller, and the Seller shall
indemnify and hold the Buyer harmless against all such accounts
payable and other liabilities.
7.2 One week prior to closing, the Seller shall furnish to the Buyer a
list of all amounts owed to all third parties, the total of said
amounts shall not exceed the sum of $7,500.
At the closing, the Seller shall furnish to the Buyer proof of payment
of all creditors, along with a list of outstanding creditors and the
amount owed to each, with a total amount not to exceed $5,000.
7.3 At the closing, Buyer shall pay all outstanding debts of the Seller,
and deduct said amount from the Payment of $20,000, to be made to
Seller pursuant to Paragraph 4.1(b) of this Agreement. Buyer reserves
the right to hold additional money in escrow, not to exceed five
thousand dollars ($5,000) for the payment of Seller's debts for a
period not to exceed 90 days.
8. Collection of Accounts Receivable.
8.1 All checks or other proceeds received by the Buyer in payment of
accounts due to the Seller as of the date of closing shall be turned
over to the Seller, provided that Seller shall have no outstanding
obligations to creditors. In the event there exist any undisputed
outstanding obligations of Seller, Buyer shall have the right to
endorse the Seller's name, negotiate any instrument or deposit any
proceeds received, satisfy said obligation, give an accounting thereof
to the Seller, and turn over to Seller any proceeds in excess of the
satisfied obligation.
8.2 All checks or other proceeds received by the Buyer subsequent to the
date of closing may be deposited by the Buyer in the Buyer's account,
subject, however, to the following. The Seller's accounts receivable
shall be paid first out of such proceeds to the Seller. After payment
of the Seller's accounts receivable is made in full, the balance of
the payment made may be retained by the Buyer.
8.3 All checks and other proceeds related to the web site received by the
Seller from the date of execution of this Agreement and continuing
into the indefinite future shall first be used to pay all accounts
payable and other liabilities of the web site.
8.4 In the event of a bona fide dispute with a creditor, Seller and Buyer
shall deposit any funds that may be received which may be used for the
payment of Seller's debts with Seller's attorney pending resolution of
same.
9 Representations:
9.1 Seller is the owner of and has good and marketable title to the
Assets, free from all encumbrances.
9.2 To Seller's knowledge, it has complied with all laws, rules, and
regulations of the city and state governments where it does business,
and with the federal government.
9.3 Seller will pay all taxes of any nature that may be due to any
governmental entity to date, as same relate to the transfer of the
Assets.
9.4 Seller has entered into no contract to sell, mortgage, or provide any
security interest in the Assets, or any portion thereof.
9.5 Seller has entered into no undisclosed contract encumbering the
Assets.
9.7 There are no judgments, liens, or to Seller's knowledge actions or
proceedings pending or threatened against the Seller in any court.
9.8 Seller's financial statements for the period ending ____________
prepared by Certified Public Accountants, accurately reflect the
financial condition of the Seller for the periods therein indicated.
Since _____________, there have been no substantial adverse changes
in the financial condition of the Seller.
9.9 Seller is vested wtih full title and ownership of the Assets, free and
clear of any equitable or legal interest that any creditor of same may
now hold or may have held in the past.
10. Covenants of the Seller. The Seller covenants with the Buyer as follows:
10.1 Seller will transfer all of the assets enumerated, installed and
operating, free of all encumbrances, with the usual warranty and
affidavit of title.
10.2 The business of the Seller will be conducted up to the date of
closing in accordance with all laws, rules and regulations of the
city, state and federal governments.
10.3 All taxes related to the assets being transferred will be paid or
provided for up to the date of closing.
10.4 No judgments or liens will be outstanding, nor will litigation be
pending or threatened against the Seller at the time of closing.
10.5 All Assets transferred to the Buyer under this Agreement will become
the sole property of the Buyer and may not be reproduced, sold or
otherwise distributed without the express written consent of the
Buyer.
10.6 No creditor or other individual or entity has any legal or equitable
interest in the Assets.
10.6 The Seller up to the date of closing, will operate and maintain
Seller's web site in the regular course, and will not violate any
contract connected with the web site, and will not in any way
diminish the components or value of the Assets.
11. Covenants of the Buyer. All representations and warranties made by the
Seller shall survive the closing.
11.1 The Buyer shall not cancel the Xxxxx & Co., Agreement dated
March 31, 1999 for a minimum period of six (6) months,
unless it is deemed to be in the best interest of the Buyer
to do so.
12. Closing. The closing will take place at the office of the Buyer or at a
mutually agreed upon location within 45 days of the execution of this
Agreement, on a date and time mutually acceptable to the Buyer and Seller.
13. Covenant Not To Compete. Seller agrees not to directly own an equity
interest, except in the form of an employee's or independent contractor's
stock options, in any web-based financial stock portal business of the type
and character of the business of the type and and character of the business
presently engaged in by the Buyer for a period of six (6) months any place
in the world; provided the Buyer performs all of its obligations under this
Agreement.
14. Applicable law. This agreement shall be interpreted and enforced in
accordance with the laws of the State of Florida, and the parties hereby
submit to the jurisdiction and venue of the Federal and State courts of
Florida in the event of a dispute.
15. Amendments. Any amendments to this agreement be only in writing executed by
both parties.
16. Transfer and Assignment. No rights or duties may be transferred or assigned
by either party without the written approval of the other party.
17. Notices. All notices, payments or communications under this Agreement shall
be made in writing to the parties at the addresses set forth in the
introductory Paragraph of this Agreement.
18. Litigation and Costs. In the event of litigation resulting from a breach of
this Agreement the prevailing party shall be entitled to the recovery of its
legal fees and costs, and Seller will indemnify Buyer for all costs, fees,
and judgments with respect to any claims made by any third parties of which
he was aware, but has not disclosed herein. Buyer may withhold payment of
all or any part of the purchase price to satisfy any costs, fees, or
judgments that it may incur under this Paragraph.
19. Arbitration. Any dispute, difference, disagreement, or controversy between
the parties hereto, arising out of or in connection with this Agreement or
the interpretation of the meaning or construction of this Agreement, shall
be referred to a single arbitrator agreed upon the parties to such dispute.
If the parties to the dispute are unable to agree upon the selection of such
arbitrator, then an arbitrator shall be appointed by the American
Arbitration Association pursuant to its existing rules and regulations.
Every such dispute, difference, disagreement or controversy which is
submitted to arbitration shall be dealt with and disposed of pursuant to the
rules of the American Arbitration Association, in accordance with the laws
of the State of Florida, all hearings shall be held in Altamonte Springs,
Florida, the parties shall submit to the jurisdiction of the Florida State
and/or Federal Courts, if necessary, and every award or determination
therein shall be final and binding upon all of the parties. There shall be
no appeal from such award or determination, and judgement thereon may be
entered.
In witness whereof, the parties hereto have caused this Agreement to be executed
as of the date first above written:
/s/ Xxxx Xxxxxx /s/ Xxxxx Xxxxxxxx
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Xxxx Xxxxxx, individually Xxxxx Xxxxxxxx
President & Chairman
XxxxxxxxxXxx.xxx, Inc.
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx, President
Daily Stocks, Inc
Seller
