EXHIBIT 4.3
AGREEMENT
THIS AGREEMENT, is made at Altamonte Springs, Florida, as of the 3rd day of
March, 1997, by and between AXXESS, INC., a Nevada corporation, with offices at
000 Xxxxxxx Xxxxxx, Xxxxxxxxx Xxxxxxx, Xxxxxxx, 00000 (hereinafter called
"AXXS"), and XXXXXXX X. XXXXXXXX, an individual residing at 00x Xxxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxxxxxx, 00000, (hereinafter called "XXXX").
RECITALS
XXXX and AXXS (hereinafter called "The Parties"), have read this Agreement
(hereinafter called "Agreement") and understand and accept the terms,
conditions, and covenants contained in this Agreement as being reasonably
necessary to maintain AXXS's standards and business practices as it relates to
the retaining of consultants employees of AXXS.
XXXX has investigated and become familiar with AXXS and desires upon the terms
and conditions set forth herein to furnish services as specifically requested by
AXXS. XXXX acknowledges that it is essential to the maintenance of the high
standards of AXXS, that XXXX maintain and adhere to the standards, procedures
and policies described herein.
THEREFORE, The Parties, intending to be legally bound, for and in consideration
of the mutual covenants hereinafter following, do mutually covenant and agree:
XXXX understands that AXXS, its affiliates, and other subsidiaries, may in the
future retain other firms or individuals for similar services to that of XXXX.
XXXX agrees that AXXS, its subsidiaries and affiliates may do so at any location
at any time.
XXXX understands and agrees that its authority hereunder is non-exclusive, to
the extent that AXXS has and retains the foregoing rights under this Agreement.
1
TERM
A. Initial Term
The initial term of this Agreement shall be for a period commencing on the date
first mentioned above, subject to the terms and conditions set forth herein and
terminating after the 12 month period immediately following the signing of this
Agreement.
B. Renewal Option
The Parties shall not have the option to renew this Agreement for additional
periods, unless specified in writing. In the event the Parties would like to
continue their relationship, said relationship would require a separate
agreement which sets for the specific terms and conditions for future services
to be performed by XXXX.
CONVEYANCE OF PROPERTY, RETENTION AND DESCRIPTION OF SERVICES
Upon execution of this agreement XXXX will convey to AXXS all claims of title,
ownership, license and property, intellectual or otherwise to a world wide web
site on the internet known as the "The SmallCap Investor" (hereinafter "Web
Site") located at the domain name, "xxxxxxxxxxxx.xxx". It is further understood
that said conveyance is inclusive of the transfer of domain name ownership of
xxxxxxxxxxxx.xxx to AXXS, which is contingent upon separate agreement by AXXS
with Xx. Xxxx X. Xxxxxxx, dba FinancialWeb Services.
During the term of this Agreement, XXXX will maintain an internet web site, more
specifically, which is known as "The SmallCap Investor" and located at the
domain name, "xxxxxxxxxxxx.xxx", as specifically requested by AXXS, its
officers, directors and employees. The services will relate to the updating of
data, product content and all other services that would reasonably be expected
to maintain the Web Site. All such categories are within the area of XXXX'x
technical competence.
2
WHERE SERVICES ARE TO BE PERFORMED
XXXX'x services will be performed at XXXX'x facilities and such other places
that are appropriate and are mutually agreed to by XXXX and AXXS.
REIMBURSEMENT OF EXPENSES
AXXS will reimburse XXXX for all external fees and expenses incurred by XXXX in
connection with the furnishing of services under this Agreement, but only upon
written approval by AXXS, which approval shall not unreasonably be withheld.
Reimbursement of said fees shall be made on the basis of itemization, submitted
by XXXX and including, whenever possible, actual bills, receipts, or other
evidence of expenditures.
XXXX AN EMPLOYEE OF AXXS
During the term of this Agreement, XXXX will be engaged as an employee of AXXS
and will hold the title of Vice President. It is further understood, and
evidenced by separate agreement, that XXXX will be director of AXXS. XXXX will
receive compensation for his employment in the aggregate sum of $18,000 per
annum, to be paid monthly, in coincidence with the term of this agreement, at
the rate of $1,500.
XXXX NOT TO ENGAGE IN CONFLICTING ACTIVITIES
During the term of this Agreement, XXXX will not enter into any activity,
employment, or business arrangement that conflicts with AXXS's interests or
XXXX'x obligations under this Agreement except for those previously disclosed or
entered into prior to the signing of this Agreement. In view of the sensitive
nature of XXXX'x status, AXXS shall have the option of terminating this
Agreement at any time, if in AXXS's full judgement, a conflict of interest
exists or is imminent.
XXXX will advise AXXS of XXXX'x position with respect to any activity,
employment or business arrangement contemplated by XXXX that might be relevant
to the immediately preceding paragraph.
3
For this purpose, XXXX agrees to disclose any such plans to AXXS prior to
implementation. It is further understood that XXXX'x current activity in
connection with Cybernet Data Systems, does not violate the terms of this
Agreement.
TRADE SECRETS
XXXX will treat as proprietary, any information belonging to AXXS, AXXS's
affiliated company's, or any third party, disclosed to XXXX in the course of
XXXX'x services. XXXX assigns and agrees to assign to AXXS or AXXS's nominees
all rights in proprietary information conceived by XXXX during the term of this
Agreement, with respect to any work that XXXX performs under this Agreement.
COMPENSATION
In Connection with the conveyance of property as defined earlier in CONVEYANCE
OF PROPERTY, RETENTION AND DESCRIPTION OF SERVICES, AXXS will pay XXXX a fee of
sixty thousand ($60,000) dollars in cash and ten (10,000) restricted common
shares of AXXS common stock as follows:
Five thousand ($5,000) dollars and the issuance of ten (10,000) restricted
common shares of AXXS, upon signing of this Agreement by XXXX and AXXS, and
eleven (11) subsequent payments of five thousand ($5,000) dollars per month due
and payable on the first of each month commencing April 1, 1997 and each of the
remaining months thereafter.
In connection with the issuance of 10,000 shares, it is understood, and
evidenced by separate agreement that XXXX will have the option to put all or a
lesser number of said shares to AXXS at a strike price of $5 per share providing
those shares have been owned by Xx. Xxxxxxxx for a minimum of 24 months and a
maximum of 48 months from the date of the Agreement.
AXXS understands that XXXX may contract outside firms to assist in the
furnishing of
4
representation services for the benefit of AXXS. AXXS will bear all
responsibilities for all costs associated with such subcontracting of services,
but only upon AXXS's prior written approval AXXS will not be liable directly or
indirectly to such contractors as a result of work performed by contractor
without said approvals, [which approvals shall not unreasonably be withheld.]
AXXS's sole responsibilities and liabilities are specified in this Agreement and
may only be modified in a writing signed and agreed to by AXXS and XXXX.
CONSIDERATION
XXXX hereby acknowledges and agrees that the authority granted herein and the
undertakings and agreements of AXXS contained in this Agreement constitute the
sole and only consideration, except as may be otherwise provided in this
Agreement or other agreements between XXXX and AXXS.
During the term hereof, XXXX shall deliver to AXXS a report of the work
performed by XXXX on behalf of AXXS, for the prior month, which shall be
accompanied by any receipts for which XXXX seeks reimbursement, as provided for
in this Agreement, no later than ten (10) days after the end of the then
applicable calendar month. In addition, XXXX shall supply, upon AXXS's written
request documentation supporting the information disclosed on the monthly
reports.
FALSE STATEMENTS
Any intentionally false statements in any reports provided to AXXS shall be
grounds for AXXS to terminate this Agreement.
DEFAULT
The occurrence of any of the following events shall constitute a default by The
Parties under this Agreement:
A. Acts of Immediate Termination
If during any period in which this Agreement is in effect, there occurs any of
the following events,
5
immediate notice of termination, without an opportunity to cure, shall be deemed
reasonable:
(1) Repeated Failures to Comply
The Parties, after curing any failure in accordance with this Agreement, engage
in the same non-compliance, whether or not such non-compliance is corrected
after notice, or either of The Parties, repeatedly fail to comply with one or
more requirements of this Agreement, whether or not corrected after notice.
B. Acts Requiring Period to Cure Before Termination
In the event either of The Parties is in default in the performance of any of
the terms of this Agreement (other than those calling for immediate termination
set forth above), including, but not limited to, the acts set forth hereinafter,
defaultee, in addition to all remedies that defaultee has available to it at law
or in equity, may declare this Agreement automatically terminated, unless such
default is cured within thirty (30) days (or a lesser stated period) after
written notice thereof from defaultee to defaulter, unless the default is of
such a nature that more than thirty (30) days are reasonably required to effect
a cure. In such event, defaulter shall commence to cure the default within said
thirty (30) day period, if any, designated by defaultee as the allowable
additional time within which the cure must be accomplished. Subject to the
aforesaid right to cure, defaultee may terminate this Agreement under the
following circumstances and conditions:
(1) Other Agreements
Default under any other agreement between XXXX and AXXS, which default is not
cured within the period required in said agreement(s).
(2) Transfer Without Prior Consent
Any purported assignment or transfer of this Agreement, without the prior
written consent of AXXS.
6
(3) Failure to Comply
Failure to comply with other terms of this Agreement, whether or not such other
terms specifically provide for termination of non-compliance. If either of The
Parties shall repeatedly fail to comply with such terms, whether cured or
uncured, after receipt of notice thereof, then, in addition to all other
remedies available at law or in equity, the defaultee may immediately declare
this Agreement terminated.
(4) Failure to Pay Obligations to XXXX
If AXXS fails to pay any amounts due to XXXX or an affiliate of XXXX within ten
(10) days after receiving written notice that such amounts are overdue or if
AXXS fails to cure any default as prescribed in this Agreement, then all claims
of title, ownership, license and property, intellectual or otherwise to the web
site known as "The SmallCap Investor" and located at the domain name,
"xxxxxxxxxxxx.xxx" will become the property of XXXX.
REMEDIES AND TERMINATION
TERMINATION
AXXS or XXXX shall have the right each in its own discretion, to unilaterally
terminate this Agreement upon 120 days written notice. The Parties need no
specific cause to affect such termination and such termination may not be
contested by either of the Parties.
However, upon termination by AXXS less than one year after the signing of this
agreement, AXXS shall have the option to keep title to the web site by paying
the unpaid balances of the employee compensation and the compensation for the
conveyance of the web site to XXXX, or of returning title to the web site to
XXXX.
In the event that title to the web site is returned to XXXX, it is further
understood that any
7
payment(s) previously made to XXXX by AXXS in connection with this agreement are
non-refundable.
A. Monetary Obligations Upon Termination
In the event of termination or expiration, all obligations of The Parties,
pursuant to the terms of this Agreement shall become due and payable.
NOTICES
All notices, requests, demands, payments, consents and other communications
hereunder shall be transmitted in writing and shall be deemed to have been duly
given when sent by registered certified United States mail, postage prepaid, or
other form of delivery which provides for a receipt, addressed as follows:
XXXX: XXXXXXX X. XXXXXXXX
00x Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xx. 00000
AXXS: AXXESS, INC.
000 Xxxxxxx Xxxxxx, Xxx 0000-X
Xxxxxxxxx Xxxxxxx, Xxxxxxx 00000
A. Address Change
Either of The Parties may change his address by giving notice of such change of
address to the other, but must comply with all other terms of this Agreement.
B. Notice by Telegram or Facsimile.
In the case of any notice required to be given by The Parties to each other,
telegraphic notice or facsimile transmission, with delivery verified, shall be
sufficient notice hereunder.
8
C. Mailed Notice
Mailed notices shall be deemed communicated within three (3) days from the time
of mailing, if mailed as provided in this paragraph, regardless if delivery
shall be refused by addressee.
D. Additional Actions
The Parties agree to execute such other documents and perform such further acts
as may be necessary or desirable to carry out the purposes of this Agreement.
E. Heirs, Successors, and Assigns
This Agreement shall be binding and inure to the benefit of the parties, their
heirs, successors, and assigns.
F. Entire Agreement
THE UNDERSIGNED ACKNOWLEDGES THAT THEY, AND EACH OF THEM, HAVE READ THIS
AGREEMENT IN FULL; ARE COGNIZANT OF EACH AND EVERY ONE OF THE TERMS AND
PROVISIONS HEREOF AND ARE AGREEABLE THERETO; THAT NO REPRESENTATIONS OR
AGREEMENTS, WHETHER ORAL OR WRITTEN, EXCEPT AS HEREINAFTER SET FORTH, HAVE BEEN
MADE OR RELIED UPON; THAT ANY AND ALL PRIOR AGREEMENTS OR UNDERSTANDINGS BETWEEN
THE PARTIES, WHETHER ORAL OR WRITTEN ARE AUTOMATICALLY CANCELED BY THE EXECUTION
OF THIS AGREEMENT AND THE UNDERSIGNED HEREBY RELEASE EACH OTHER AND THEIR AGENTS
AND EMPLOYEES, RESPECTIVELY, FROM ANY AND ALL CLAIMS, DEMANDS, AGREEMENTS AND
LIABILITIES OF EVERY DESCRIPTION WHATSOEVER, WHICH THE UNDERSIGNED EVER HAD, NOW
HAS OR HEREAFTER MAY HAVE, AGAINST ANY OF THE FOREGOING BY REASON OF ANY MATTER,
CAUSE OR THING OCCURRING PRIOR TO THE DATE OF THIS AGREEMENT; THAT THE
SIGNATURES AFFIXED HERETO WERE AFFIXED AS THE WHOLLY VOLUNTARY ACT OF THE
PERSONS WHO SIGNED THIS AGREEMENT, AND THAT THE TERMS AND PROVISIONS OF THIS
AGREEMENT CANNOT BE CHANGED OR MODIFIED UNLESS IN WRITING SIGNED BY AN
AUTHORIZED CORPORATE OFFICER OF AXXS AND XXXX;
9
G. Waiver of Rights
Failure by either of The Parties to enforce any rights under this Agreement
shall not be construed as the waiver of such rights. Any waiver, including
waiver of default, in any one instance, shall not constitute a continuing waiver
or a waiver in any other instance. Any acceptance of money or other performance
by either of The Parties, shall not constitute a waiver of any default, except
as to the payment of the particular payment or performance so received.
H. Validity of Parts
Any invalidity of any portion of this Agreement shall not affect the validity of
the remaining portion, and unless substantial performance of this Agreement is
frustrated by any such invalidity, this Agreement shall continue in effect.
I. Headings
The headings used herein are for purposes of convenience only and shall not be
used in interpreting the provisions hereof. As used herein, the male gender
shall include the female and neuter genders; the singular shall include the
plural, the plural, the singular and termination shall include expiration.
J. Execution By The Parties
This Agreement shall not be binding on either of The Parties, unless and until
it shall have been accepted and signed by an authorized officer of AXXS and
XXXX.
K. Attorneys' Fees
If either of The Parties becomes a party to any litigation concerning this
Agreement, AXXS or XXXX, by reason of any act or omission of either of The
Parties or its representatives, the responsible of
10
The Parties, shall be liable to the other for reasonable attorneys' fees and
court costs incurred in such litigation, at all trial and appellate levels.
If either of The Parties hereto commences an action against the other, arising
out of or in connection with this Agreement, the prevailing of The Parties shall
be entitled to have and recover from the other Party its reasonable attorneys'
fees and costs at all trial and appellate levels.
L. Governing Law
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of Florida; however, since this Agreement concerns an
individual in a state other than Florida, and the laws of that state might
require terms other than those or in addition to those contained herein, then
this Agreement shall be deemed modified so as to comply with the appropriate
laws of such state, but only to the extent necessary to prevent the invalidity
of this Agreement or any provision hereof, the imposition of fines or penalties,
or the creation of civil or criminal liability on account thereof. Any provision
of this Agreement which may be determined by competent authority to be
prohibited or unenforceable in any jurisdiction shall, as to that jurisdiction,
be ineffective to the extent of the prohibition or unenforceability, without
invalidating the remaining provisions of this Agreement. Any prohibition against
or unenforceability of any provision of this Agreement in any jurisdiction,
including the state whose law governs this Agreement, shall not invalidate the
provision or render it unenforceable in any other jurisdiction. To the extent
permitted by applicable law, the Parties waive any provision of law which
renders any provision of this Agreement prohibited or unenforceable in any
respect.
NO PROJECTIONS OR REPRESENTATIONS
The Parties acknowledge and represent that no projections or representations
regarding the amount of income, sale, or profits they can expect to earn or
receive by virtue of this Agreement other than
11
as provided herein, has been received from either of The Parties. The Parties
acknowledge that no representations or warranties inconsistent with this
Agreement were made to induce each other to execute this Agreement.
The Parties acknowledge that neither of the Parties nor any other person can
guarantee the success of the business. The undersigned, by signing this
Agreement, acknowledge that they have read same and that it has been requested
to state in writing hereafter any terms, claims, covenants, promises, or
representations, including representations as to any income, sales, or profit
projections, that were made by either of the parties or its representatives
contrary to the provisions of this Agreement, including the persons making same,
the location, and date thereof. If no such representations were made the
undersigned is to write the word: "NONE".
(AXXS Initials)
/s/ K.L.
/s/ X.X.
-------------------
(XXXX Initials)
12
ACKNOWLEDGMENTS
The Parties acknowledge that each has conducted an independent investigation of
the business contemplated by this Agreement and recognizes that the nature of
the business to be conducted may evolve and change over time; that the business
involves business risks and that the success of the venture depends primarily
upon each of The Parties business ability and efforts. No representations have
been made by either of The Parties, or by its officers, directors, shareholders,
employees, or agents, respectively, that are contrary to the statements made in
this Agreement. In all of their dealings with each other, the officers,
directors, employees, and agents of The Parties are acting only in a
representative capacity, not in an individual capacity, and that this Agreement,
and all business dealings between The Parties and such individuals as result of
this Agreement, are solely between XXXX and AXXS.
AXXS and XXXX have all requisite authority to enter into this Agreement, whether
arising under applicable Federal or State laws, rules or regulations, to which
either of The Parties may be subject to.
IN WITNESS WHEREOF, The Parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
XXXXXXX X. XXXXXXXX
BY: /s/ Xxxxxxx X. Xxxxxxxx
AXXESS, INC.
By: /s/ [Signature Appears Here]
13
