XXXXXXXXX.XXX, INC.
FORM 10-QSB - SEPTEMBER 30, 2000
EXHIBIT 10.4
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AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into this 22nd day
of August, 2000 (the "Effective Date") by and between Xxxxxxxxx.xxx, Inc.
(formerly The Publishing Company of North America, Inc.), a Florida corporation
(the "Purchaser") and Xxxxxx X. Xxxxxxx, (the "Seller").
WHEREAS Purchaser desires to retain the services of the Seller to
produce streaming media legal content programs (`Infomercials') and Seller
agrees to produce same upon the terms and conditions hereafter set forth,
NOW THEREFORE, in consideration of the mutual promises and the
covenants and promises hereinafter contained, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto intending to be legally bound hereby agree as follows:
Section 1. Production of Infomercials.
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1.1 Seller's Obligation. Seller shall write and produce 5 Infomercials for
Purchaser for display at Purchasers website, which is currently in
production. In this regard, Seller will provide the following services:
scripting, set preparation, audio and video technicians, studio
equipment, audio and video editing, casting, services of a director,
light and grips, cameras, production and compression for the web and a
final CD Bum or other appropriate media containing final files. It is
the intention of the parties that the Purchaser and/or Purchaser's
technical department will be delivered a finished product suitable for
display on the web. Seller's obligations hereunder shall be completed
and fulfilled upon delivery of the compressed Infomercials to
Purchaser; Seller shall have no obligation to load the Infomercials
onto Purchaser's website.
1.2 Content. The Infomercials shall each deal with a specific area of law
and shall be informative, entertaining, and in good taste. Artistic
form and content shall be determined by Seller, subject to the terms of
this Agreement. Each Infomercial shall be not less than 12 minutes in
length, and may be broken down into several segments. Seller will
provide a rough transcript of each Infomercial to Purchaser for
approval before filming. Approval, subject to edits as provided, if
any, will be returned to Seller within 48 hours of receipt by
Purchaser. Purchaser may provide Seller with introductory material to
be incorporated into each Infomercial describing Purchaser's services.
The Infomercials shall address the following areas of law: Personal
Injury/Accidents; Choosing an Attorney/Fees; Family Law/Divorce;
Criminal Law and Procedure; and Bankruptcy. Purchaser may substitute a
content area by giving Seller written notice within 5 days after
execution of this Agreement by all parties.
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FORM 10-QSB - SEPTEMBER 30, 2000
1.3 Time for Performance. Seller shall deliver the completed Infomercials
to Purchaser not later than 12 weeks from the date of execution of this
Agreement by all parties. In the event delivery is not complete within
12 weeks, Purchaser shall have the option of extending the time of
performance or shall reduce the purchase price by 20% for each
undelivered Infomercial.
Section 2. Purchase Price.
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2.1 Purchase Price. The Purchaser shall pay the Seller, as the purchase
price for the Infomercials, (a) $100,000 and 12,500 unregistered shares
of Common Stock of the Purchaser ("Common Stock").
2.2 Manner of Payment of Purchase Price. The Purchaser shall pay the
Purchase Price as follows:
(a) The Purchaser shall pay to Seller the sum of $50,000 upon
execution of this Agreement by all parties;
(b) The Purchaser shall pay to Seller the sum of $25,000 upon
completion of the shooting of all 5 Infomercials. Upon
request, Seller will provide Purchaser with a copy of the raw
footage.
(c) The Purchaser shall deliver to the Seller 12,500 unregistered
shares of Common Stock issued in the name of the Seller as
shareholder of record on the stock transfer records of the
Purchaser and the balance of $25,000 upon delivery of the
compressed Infomercials to Purchaser or its agents.
2.3 Registration Rights.
(a) Piggyback Registration.
(i) Each time that the Purchaser proposes for any reason
to register any of its Common Stock under the
Securities Act of 1933 (the "Securities Act") in
connection with the proposed offer and sale of its
Common Stock for money, either for its own account or
on behalf of any other security holder ("Proposed
Registration"), other than pursuant to a registration
statement on Forms X-0, X-0 or any similar forms, the
Purchaser shall promptly give written notice of such
Proposed Registration to Seller, and shall offer to
Seller the right to request inclusion of their Common
Stock issued pursuant to the terms of the Agreement
in the Proposed Registration.
(ii) The Seller shall have 30 days from the receipt of
such notice to deliver to the Seller a written
request specifying the number of shares of Common
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XXXXXXXXX.XXX, INC.
FORM 10-QSB - SEPTEMBER 30, 2000
Stock that Seller intends to sell in the Proposed
Registration, as well as information on Seller's
intended method of disposition.
(iii) In the event that the Proposed Registration by the
Purchaser is, in whole or in part, an underwritten
public offering, the Purchaser shall so advise Seller
and any request must specify that their Common Stock
be included in the underwriting on the same terms and
conditions as the shares of Common Stock, if any,
otherwise being sold through underwriters under such
registration.
(iv) Upon receipt of a written request, the Purchaser
shall promptly use its best efforts to cause all such
shares of Common Stock held by Seller to be
registered under the Securities Act (and included in
any related qualifications under blue sky laws or
other compliance), to the extent required to permit
sale or disposition as set forth in the Proposed
Registration.
(v) In the event that the offering is to be an
underwritten offering, and Seller proposes to
distribute its shares of Common Stock through such
underwritten offering, Seller agrees to enter into an
underwriting agreement with the underwriter or
underwriters selected for such underwriting by the
Purchaser.
(vi) Notwithstanding the foregoing, if in its good faith
judgment the managing underwriter determines and
advises the Purchaser in writing that the inclusion
of the Common Stock issued to Seller pursuant to the
Agreement in the underwritten public offering,
together with any Common Stock offered by the
Purchaser would interfere with the successful
marketing of such securities, the managing
underwriter may exclude the Common Stock from the
Proposed Registration as long as all shares of Common
Stock owned by the Purchaser's officers, directors
and 5% shareholders are excluded.
(b) Preparation and Filing. If and whenever the Purchaser is under
an obligation pursuant to this Agreement to use its best
efforts to effect the registration of any shares of its Common
Stock, the Purchaser shall, as expeditiously as practicable:
(i) prepare and file with the Securities and Exchange
Commission (the "Commission") a registration
statement with respect to such securities and use its
best efforts to cause such registration statement to
become and remain effective in accordance with
Section 2(b) hereof;
(ii) prepare and file with the Commission such amendments
and supplements to such registration statement and
the prospectus used in connection
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XXXXXXXXX.XXX, INC.
FORM 10-QSB - SEPTEMBER 30, 2000
therewith as may be necessary to keep such
registration statement effective until the earlier of
(A) the sale of all Common Stock covered thereby or
(B) the expiration of three months from the effective
date of the registration statement, and to comply
with the provisions of the Securities Act with
respect to the sale or other disposition of all
Common Stock covered by such registration statement;
(iii) furnish to the Seller such number of copies of any
summary prospectus or other prospectus, including a
preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other
documents as such holder may reasonably request in
order to facilitate the public sale or other
disposition of such shares of Common Stock issued to
Seller pursuant to this Agreement;
(iv) use its best efforts to register or qualify the
Common Stock covered by such registration statement
under the securities or blue sky laws of New York and
up to three other states that do not impose what is
commonly referred to as merit review and all other
acts or things which may be necessary or advisable to
enable Seller to consummate the public sale or other
disposition in such jurisdictions of such Common
Stock; provided, however, that the Purchaser shall
not be required to consent to general service of
process for all purposes in any jurisdiction where it
is not then subject to process, qualify to do
business as a foreign corporation where it would not
be otherwise required to qualify or submit to
liability for state or local taxes where it is not
liable for such taxes;
(v) at any time when a prospectus relating thereto
covered by such registration statement is required to
be delivered under the Securities Act, notify Seller
of the happening of any event as a result of which
the prospectus included in such registration, as then
in effect, includes an untrue statement of a material
fact or omits to state a material fact required to be
stated therein or necessary to make the statements
therein not misleading in light of-the circumstances
then existing and, at the request of such holder, as
promptly as practicable prepare, file and furnish to
such holder a reasonable number of copies of a
supplement to or an amendment of such prospectus as
may be necessary so that, as thereafter delivered to
the purchasers of such shares, such prospectus shall
not include an untrue statement of a material fact or
omit to state a material fact required to be stated
therein or necessary to make the statements therein
not misleading in light of the circumstances then
existing;
(vi) if the Purchaser has delivered preliminary or final
prospectuses to Seller and after having done so the
prospectus is amended to comply with the requirements
of the Securities Act, the Purchaser shall promptly
notify
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XXXXXXXXX.XXX, INC.
FORM 10-QSB - SEPTEMBER 30, 2000
Seller and Seller and, if requested, they shall
immediately cease making offers of their Common Stock
and return all prospectuses to the Purchaser. The
Purchaser shall promptly provide Seller with revised
prospectuses and, following receipt of the revised
prospectuses, Seller shall be free to resume making
offers of the Common Stock.
(c) Expenses. The Purchaser shall pay all expenses incurred in
complying with this Section 2.3, including, without
limitation, all registration and filing fees (including all
expenses incident to filing with the NASD Regulation, Inc.),
fees and expenses of complying with securities and blue sky
laws, printing expenses, and fees and disbursements of the
Purchaser's counsel for the holders of their Common Stock;
provided, however, that all underwriting discounts and selling
commissions, attorneys' fees of Seller, if any, and selling
expenses applicable to the Common Stock issued to Seller and
covered by registration effected pursuant to this Section 2.3
hereof shall be borne by Seller.
Section 3. Intellectual Property
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3.1 Ownership of Content. The Seller owns or possesses all right, title and
interest (or holds valid licenses) to use, whether or not registered,
all intellectual property being sold hereunder, however Purchaser shall
be responsible for any U.S. or foreign registrations or applications
for registration thereof. The use by the Purchaser of any of the
intellectual property provided hereunder does not violate the
proprietary rights of any other Person and no claims have been asserted
by any Person with respect to the produced Infomercials. The Seller has
taken reasonable security measures to protect the secrecy,
confidentiality and value of the intellectual property provided
hereunder. No person, other than the Seller, owns or has any
proprietary, financial or other interest, direct or indirect, in whole
or in part, in the Infomercials. The Seller is not a party to any
confidentiality, secrecy or similar agreements with third parties. Upon
payment of the purchase price, all right, title and interest of the
Seller shall be transferred to the Purchaser.
Section 4. Authorization; No Restrictions, Consents or Approvals.
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The Purchaser has full power and authority to enter into and perform this
Agreement and all corporate action necessary to authorize the execution and
delivery of this Agreement and the performance of its obligations hereunder has
been duly taken. This Agreement has been duly executed by the Purchaser and
constitutes the legal, valid, binding and enforceable obligation of the
Purchaser, enforceable against the Purchaser in accordance with its terms.
Section 5. Survival of Representations and Warranties; Indemnification.
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5.1 Survival of Representations and Warranties and Covenants. The
representations, warranties, covenants, and obligations of the
Purchaser and the Seller set forth in this
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XXXXXXXXX.XXX, INC.
FORM 10-QSB - SEPTEMBER 30, 2000
Agreement and in any certificate, agreement, or instrument delivered in
connection with the transactions contemplated hereby, shall survive the
for a period of one year from the Effective Date.
5.2 Indemnification by the Seller. In addition to and not in limitation of
the Seller's indemnification obligations set forth elsewhere in this
Agreement, the Seller shall, defend, indemnify, and hold harmless the
Purchaser and its affiliates and its respective officers, directors,
shareholders, agents and employees (individually, a "Purchaser
Indemnitee" and collectively the "Purchaser Indemnitees"), from and
against any and all claims, losses, deficiencies, liabilities,
obligations, damages, penalties, punitive damages, costs, and expenses
(including, without limitation, reasonable legal, accounting and
consulting fees), whether or not resulting from third party claims
(collectively, "Losses"), suffered by a Purchaser Indemnitee, which
arise out of or result from:
(a) any inaccuracy or misrepresentation in or breach of any of the
representations, warranties, covenants or agreements made by
the Seller in this Agreement or in any document, certificate
or affidavit delivered by the Seller pursuant to the
provisions of this Agreement;
(b) any obligation, liability, debt or commitment of the Seller
which is not an , whether or not paid by the Purchaser; and
(c) any claims by any Person arising out of or due to the failure
to comply with the bulk transfers laws, fraudulent conveyance
or other laws for the protection of creditors of the State of
including, without limitation, any claims by any Person
against all or any part of the Assets.
(d) any other matter related to the use or ownership of the Assets
prior to the Closing (including, but not limited to, all acts,
omissions and conditions existing or occurring prior to the
Closing for which any of the Purchaser Indemnitees is alleged
to be liable pursuant to any successor or similar theory of
liability).
5.3 Indemnification by The Purchaser. The Purchaser shall defend, indemnify
and hold harmless, the Seller and the Seller's respective officers,
directors, agents and employees (individually, a "Seller Indemnitee"
and collectively the "Seller Indemnitees") from and against any and all
Losses, suffered by a Seller Indemnitee, which arise out of or result
from (a) any inaccuracy or misrepresentation in or breach of any of the
representations, warranties, covenants or agreements made by the
Purchaser in this Agreement or in any document, certificate or
affidavit delivered by the Purchaser pursuant to the provisions of this
Agreement(b) any other matter related to the of the Assets after the
Closing.
5.4 Indemnification Payments. All indemnity payments, whether by the
Purchaser or the Seller, to be made under this Agreement shall be made
in immediately available funds.
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XXXXXXXXX.XXX, INC.
FORM 10-QSB - SEPTEMBER 30, 2000
5.5 Procedure for Third Party Claims.
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(a) Notice to the indemnifying party shall be given promptly after
receipt by any Seller Indemnitee or Purchaser Indemnitee of
actual knowledge of the commencement of any action or the
assertion of any claim that will likely result in a claim by
it for indemnity pursuant to this Agreement. Such notice shall
set forth in reasonable detail the nature of such action or
claim to the extent known, and include copies of any written
correspondence or pleadings from the party asserting such
claim or initiating such action. The indemnified party shall
be entitled, at its own expense, to assume or participate in
the defense of such action or claim. In the event that the
indemnifying party assumes the defense of such action or
claim, it shall be conducted by counsel chosen by such party
and approved by the party seeking indemnification, which
approval shall not be unreasonably withheld.
(b) With respect to actions as to which the indemnifying party
does not exercise its right to assume the defense, the party
seeking indemnification shall assume and control the defense
of and contest such action with counsel chosen by it and
approved by the indemnifying party, which approval shall not
be unreasonably withheld. The indemnifying party shall be
entitled to participate in the defense of such action, the
cost of such participation to be at its own expense. The
indemnifying party shall be obligated to pay the reasonable
attorneys' fees and expenses of the party seeking
indemnification to the extent that such fees and expenses
related to claims as to which indemnification is payable under
Sections 6.2 or 6.3, as such expenses are incurred.
(c) Both the indemnifying party and the indemnified party shall
cooperate fully with one another in connection with the
defense, compromise, or settlement of any such claim or
action, including, without limitation, by making available to
the other all pertinent information and witnesses within its
control.
(d) No indemnified party shall have the right to settle any action
brought against it without the consent of the indemnifying
party. The indemnifying party shall have the right to settle
any action brought against an indemnified party as long as the
indemnified party has been delivered a complete release as a
condition of the settlement.
5.6 Remedies Cumulative. The remedies provided for herein shall be
cumulative and shall not preclude assertion by any party of any other
rights or the seeking of any other remedies against any other party.
Nothing contained in this Section 5.6 shall be construed in any way to
limit, impair or modify any provisions of this Agreement or to
otherwise impose any additional liability or obligation on the
Purchaser at any time for any liability or obligation of the Seller
other than the Purchaser's obligation to indemnify the Seller
hereunder.
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XXXXXXXXX.XXX, INC.
FORM 10-QSB - SEPTEMBER 30, 2000
5.7 Successors. The merger, consolidation, liquidation, dissolution or
winding up of, or any similar transaction with respect to, the parties
hereto shall not affect in any manner the obligations of the parties
pursuant to Section 5 or any other term or provision of this Agreement,
and the parties covenant and agree to make adequate provision for their
liabilities and obligations hereunder in the event of any such
transaction.
Section 6. General Provisions.
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6.1 Severability. In the event any parts of this Agreement are found to be
void, the remaining provisions of this Agreement shall nevertheless be
binding with the same effect as though the void parts were deleted.
6.1 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument. The
execution of this Agreement may be by actual or facsimile signature.
6.2 Benefit. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their legal representatives, successors and
permitted assigns.
6.3 Notices. Any notice, report, demand, waiver, consent or other
communication given by a party under this Agreement shall be in
writing, may be given by a party or its legal counsel, and shall deemed
to be duly given upon delivery by Federal Express or similar overnight
courier service which provides evidence of delivery, or when delivered
by facsimile transmission if a copy thereof is also delivered in person
or by overnight courier. Notices of address change shall be effective
only upon receipt notwithstanding the provisions of the foregoing
sentence.
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XXXXXXXXX.XXX, INC.
FORM 10-QSB - SEPTEMBER 30, 2000
Notice to the Seller
shall be sufficient if given to: Xxxxxx X. Xxxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Facsimile: 000-000-0000
Notice to the Purchaser
shall be sufficient if given to: Xxxxxxxxx.xxx, Inc.
ATTN: Xxxxx X. Xxxxxx, President
000 Xxxxxxxxx.xxx Xxxxx
Xxxx Xxxxx, XX 00000
Facsimile: 000-000-0000
7. Oral Evidence. This Agreement constitutes the entire Agreement between
the parties and supersedes all prior oral and written agreements
between the parties hereto with respect to the subject matter hereof.
8. Governing Law. This Agreement and any dispute, disagreement, or issue
of construction or interpretation arising hereunder whether relating to
its execution, its validity, the obligations provided herein or
performance shall be governed or interpreted according to the internal
laws of the State of Florida without regard to choice of law
considerations.
9. Arbitration. Any controversy, dispute or claim arising out of or
relating to this Agreement, or its interpretation, application,
implementation, breach or enforcement which the parties are unable to
resolve by mutual agreement, shall be settled by submission by either
party of the controversy, claim or dispute to binding arbitration in
Broward County, Florida (unless the parties agree in writing to a
different location), before a single arbitrator in accordance with the
rules of the American Arbitration Association then in effect. In any
such arbitration proceeding the parties agree to provide all discovery
deemed necessary by the arbitrator. The decision and award made by the
arbitrator shall be final, binding and conclusive on all parties hereto
for all purposes, and judgment may be entered thereon in any court
having jurisdiction thereof.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
duly executed under seal as of the date first above written.
XXXXXXXXX.XXX, INC. XXXXXX X. XXXXXXX
By: /s/ Xxxxx x. Xxxxxx /s/ Xxxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxx, President
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