Exhibit 10.10
EXCHANGE & HOLD HARMLESS AGREEMENT
For Lead Generation Business Segment of Monster Offers
THIS AGREEMENT is entered into as of the 19th day of November, 2010 by and
between Monster Offers and Xxxxx X. Xxxxxxx (collectively referred to herein
as the "Parties").
WHEREAS, the Xx. Xxxxx X. Xxxxxxx is the owner of 10,000,000 restricted
shares of the common stock of Monster Offers ("the Company"), he is also the
Director and President of the Company;
WHEREAS, Monster Offers, a Nevada Corporation is a publicly traded company
whose stock is listed on the OTC-BB under the symbol: MONT;
WHEREAS, Xxxxx X. Xxxxxxx desires to exchange 8,000,000 of his restricted
shares of Monster Offers for the Company's Lead Generation Business Segment
and be held harmless from any claims arising out of this exchange upon the
terms and conditions set forth below; and,
WHEREAS, upon the exchange of 8,000,000 shares for Monster Offers' Lead
Generation Business Segment, Xx. Xxxxx Xxxxxxx will resign as a Director and
continue as an Officer of the Company, until December 31, 2010, or until the
Company names his replacement, whichever comes sooner.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which are hereby acknowledged, the
Parties hereby agree to the following.
1. Exchange of Share
1.1 Xx. Xxxxx X. Xxxxxxx agrees to transfer and deliver 8,000,000 of his
restricted shares of Monster Offers to Monster Offers in exchange for the
Lead Generation Business Segment of Monster Offers including all contracts
and assets of the Lead Generation Business Segment, including, but not
limited to, the XxxxxXxxxx.xxx email marketing compliance software and the
XXXXxxxx.xxx traffic monetization software.
1.2 If for any reason, the shares are not exchanged by December 15,
2010, this EXCHANGE AND HOLD HARMLESS AGREEMENT becomes null and void.
2. Representations and Warranties. In order to induce Monster Offers to
enter into this Exchange Agreement and complete its transactions contemplated
hereunder, Xx. Xxxxx X. Xxxxxxx represents and warrants that:
2.1 Xx. Xxxxxxx has good and marketable title to the Shares, and
Monster Offers will receive the restricted Shares, free and clear of any
liens or encumbrances;
2.2 Xx. Xxxxxxx has good and sufficient power, authority and capacity
to enter into this Agreement and complete its transactions contemplated under
this Agreement on the terms and conditions set forth herein, and the exchange
of these Shares will not violate any other agreement or instrument to which
the Parties are bound;
2.3 Xx. Xxxxxxx agrees, once the exchange takes place, will resign as
a Director and continue as an Officer of the Company, until December 31,
2010, or until the Company names his replacement, whichever comes sooner.
2.4 Xx. Xxxxxxx, for a period of two years after leaving the company,
agrees not to compete directly against Monster Offers existing social
commerce business segment, specifically the "Deal of the Day" concept, as
found at XxxxxxxXxxxxx.xxx or the XxXxxxxxXxxxx.xxx website; however,
Xx. Xxxxxxx is not precluded from utilizing other social commerce concepts
in his new business endeavors.
3. Representations and Warranties. In order to induce the Xxxxx X. Xxxxxxx
to enter into this Agreement and complete its transactions contemplated
hereunder, Monster Offers represents and warrants to Xx. Xxxxxxx that:
3.1 Monster Offers has good and sufficient power, authority and
capacity to enter into this Agreement and complete the transfer of the Lead
Generation Business Segment of Monster Offers delineated in this Agreement on
the terms and conditions set forth herein, and the exchange of these Shares
will not violate any other agreement or instrument to which the Parties are
bound; and
3.2 Monster Offers agrees to release, and hold harmless Xx. Xxxxx X.
Xxxxxxx, and his assignees and successors, against any and all losses,
claims, damages, obligations, penalties, judgments, awards, liabilities,
costs, expenses and disbursements (and any and all actions, suits,
proceedings and investigations in respect thereof and any and all legal and
other costs, expenses and disbursements in giving testimony or furnishing
documents in response to a subpoena or otherwise), including, without
limitation, the costs, expenses and disbursements, as and when incurred of
investigating, preparing or defending any such action, suit, proceeding or
investigation (whether or not in connection with litigation in which the
Parties are a party), directly or indirectly, caused by, relating to, based
upon, arising out of, or in connection with this Agreement, the ownership of
the Lead Generation Business Segment and the subsequent ownership of this
business segment.
3.3 Monster Offers will not compete directly or indirectly against its
former Lead Generation Business Segment after Xx. Xxxxxxx leaves the company
for a period of one year.
3.4 Monster Offers has an on-going obligation not to abandon its
responsibilities to maintain financial responsibility at the current level of
costs of the Lead Generation Business Segment until December 31, 2010 or
until such time that Xx. Xxxxxxx forms his new company and transfers the
assets of Lead Generation Business Segment to his new company, whichever
comes sooner.
4. Entire Agreement. This Agreement contains the entire understanding
between and among the parties and supersedes any prior understandings and
agreements among them respecting the subject matter of this Agreement.
5. Amendment and Modification. Subject to applicable law, this Agreement
may be amended, modified or supplemented only by a written agreement signed
by both Parties.
6. Waiver of Compliance; Consents.
6.1 Any failure of any party to comply with any obligation, covenant,
agreement or condition herein may be waived by the party entitled to the
performance of such obligation, covenant or agreement or who has the benefit
of such condition, but such waiver or failure to insist upon strict
compliance with such obligation, covenant, or agreement or condition will not
operate as a waiver of, or estoppels with respect to, any subsequent or other
failure.
6.2 Whenever this Agreement requires or permits consent by or on
behalf of any Party hereto, such consent will be given in a manner consistent
with the requirements for a waiver of compliance as set forth above.
7. Agreement Binding. This Agreement shall be binding upon the heirs,
executors, administrators, successors and assigns of the parties hereto.
8. Attorneys' Fees. In the event an arbitration, suit or action is brought
by any party under this Agreement to enforce any of its terms, or in any
appeal there from, it is agreed that the prevailing party shall be entitled
to reasonable attorneys fees to be fixed by the arbitrator, trial court,
and/or appellate court.
9. Computation of Time. In computing any period of time pursuant to this
Agreement, the day of the act, event or default from which the designated
period of time begins to run shall be included, unless it is a Saturday,
Sunday or a legal holiday, in which event the period shall begin to run on
the next day that is not a Saturday, Sunday or legal holiday.
10. Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HERETO SHALL BE GOVERNED, CONSTRUED AND ENFORCED IN ACCORDANCE WITH
THE LAWS OF CALIFORNIA. THE PARTIES AGREE THAT ANY LITIGATION RELATING
DIRECTLY OR INDIRECTLY TO THIS AGREEMENT MUST BE BROUGHT BEFORE AND
DETERMINED BY A COURT OF COMPETENT JURISDICTION WITHIN CALIFORNIA.
11. Arbitration. If at any time during the term of this Agreement any
dispute, difference, or disagreement shall arise upon or in respect of this
Agreement, and the meaning and construction hereof, every such dispute,
difference, and disagreement shall be referred to a single arbiter agreed
upon by the parties, or if no single arbiter can be agreed upon, an arbiter
or arbiters shall be selected in accordance with the rules of the American
Arbitration Association and such dispute, difference or disagreement shall be
settled by arbitration in accordance with the then prevailing commercial
rules of the American Arbitration Association, and judgment upon the award
rendered by the arbiter may be entered in any court having jurisdiction
thereof.
12. Further Action. The parties hereto shall execute and deliver all
documents, provide all information and take or forbear from all such action
as may be necessary or appropriate to achieve the purposes of the Agreement.
13. Confidentiality. The parties shall keep this Agreement and its terms
confidential, but any party may make such disclosures as it reasonably
considers are required by law or necessary to obtain financing. In the event
that the transactions contemplated by this Agreement are not consummated for
any reason whatsoever, the parties hereto agree not to disclose or use any
confidential information they may have concerning the affairs of other
parties, except for information which is required by law to be disclosed.
Confidential information includes, but is not limited to, financial records,
surveys, reports, plans, proposals, financial information, and information
relating to personnel contracts, stock ownership, liabilities and litigation.
14. Costs, Expenses and Legal Fees. Whether or not the transactions
contemplated hereby are consummated, each party hereto shall bear its own
costs and expenses (including attorneys' fees).
15. Severability. If any provision of this Agreement is held to be illegal,
invalid or unenforceable under present or future laws effecting during the
term hereof, such provision shall be fully severable and this Agreement shall
be construed and enforced as if such illegal, invalid or unenforceable
provision never comprised a part hereof; and the remaining provisions hereof
shall remain in full force and effect and shall not be affected by the
illegal, invalid or unenforceable provision or by its severance here from.
Furthermore, in lieu of such illegal, invalid and unenforceable provision,
there shall be added automatically as part of this Agreement a provision as
similar in nature in its terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid and enforceable.
16. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of
which taken together shall be deemed to constitute one and the same.
Facsimile copies may act as originals.
IN WITNESS HEREOF, the parties have duly executed this Agreement as of the
date written herewith.
By: ___________________
Xxxxx X. Xxxxxxx
Monster Offers
By:_____________________
Xxxx Gain
Chairman and CEO
