EXHIBIT 10.4
AGREEMENT
AGREEMENT made this 9th day of February, 1999, by and between
XXXXXXXXXXX.XXX., INC., a New York Corporation and FAMOUS FIXINS,INC., a New
York corporation.
WHEREAS, in accordance with Exhibit C to the Agreement dated February
9th 1999, Famous Fixins, Inc. is obligated to deliver 1,000,000 shares of its
common stock to XxxxxXxxxxx.xxx, Inc. in consideration for promotional
services.
NOW, THEREFORE, in consideration of the mutual promises herein set
forth, and for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
1. Famous Fixins, Inc. agrees to transfer and assign 1,000,000 shares of
Common Stock to XxxxxXxxxxx.xxx, Inc. in satisfaction of the payment
services to be performed under the above referenced Agreement dated
February 9, 1999.
2. Famous Fixins, Inc. acknowledges that it will be benefited by the
promotional services rendered by XxxxxXxxxxx.xxx, Inc.
IN WITNESS WHEREOF, the parties have executed this agreement as of the
date first above written.
FAMOUS FIXINS
By: /s/ Xxxxx Xxxxx
-----------------------------
XXXXXXXXXXX.XXX, INC.
By: /s/ Xxxxxxx Xxxxxxxxxx
-----------------------------
XXXXXXXXXXX.XXX, INC. AGREEMENT
This XxxxxXxxxxx.xxx, Inc. Agreement (the "Agreement") is entered into
on this 9th day of February, 1999 between XxxxxXxxxxx.xxx, Inc., a New York
Corporation, and Famous Fixins, Inc. a New York corporation ("Client").
WHEREAS, XxxxxXxxxxx.xxx, Inc. is in the business of planning,
developing, implementing, marketing and promotional campaigns for
corporations and other business entities ("Promotional Services");
WHEREAS, the Client desires to retain StockPlayer to provide the
Promotional Services, and StockPlayer desires to provide such Promotional
Services to Client, pursuant to the terms, conditions and provisions
contained in this Agreement for a period of five years.
NOW, THEREFORE, in consideration of the mutual promises contained
herein 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:
1. Promotional Services. Subject to Client's compliance with each of the
representations, warranties and covenants and agreements made by Client
in this Agreement, StockPlayer agrees to provide to Client the
Promotional Services identified on Exhibit A which is attached hereto
and incorporated herein by reference, for the period commencing on the
latter of (the "Effective Date") the date that this Agreement is
executed and delivered by Client or the date that StockPlayer receives
payment of its fees as herein provided and expiring on the 365th day
following the effective date of this Agreement (the "Term").
2. Obligations and Responsibilities of Client. As of the date hereof and
during the Term of this Agreement, Client agrees as follows:
Representations and Warranties.
Client represents and warrants to StockPlayer that:
(A) Organization. Client is a corporation duly organized,
validly existing and in good standing under the laws of the
State of its incorporation and it is duly qualified to do
business as a foreign corporation in each jurisdiction in
which it owns or leases property or engages in business.
(B) Formal Action. Client has the corporate power and authority
to execute and deliver this Agreement and to perform each of
its obligations hereunder and this Agreement has been duly
approved by Client's Board of Directors.
(C) Valid and Binding Agreement. This Agreement has been duly
executed and delivered by Client and is the valid and binding
obligation of Client enforceable against it in accordance
with its terms.
(D) No Violation. The execution, delivery and performance of
this Agreement does not and will not violate any provisions
of the charter or bylaws of Client or any agreement to which
Client is a party or any applicable law or regulation or
order or decree of any court, arbitrator or agency of
government and no action of, or filing with, any governmental
or public body or authority is required in connection with
the execution, delivery or performance of this Agreement.
(E) Litigation. No action, suit or proceeding is pending against
or affecting the Client.
(F) Accuracy of Information. The information furnished by Client
to StockPlayer regarding the business, operations, financial
condition, including financial statements, business plans and
biographical information regarding the Client's directors and
officers (collectively referred to as the "Information
Package") is complete and accurate n all material respects
and does not contain any untrue statement of a material fact
or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein,
in light of the circumstances under which they were not
misleading.
Covenants and Agreements.
Client covenants and agrees to comply with the following covenants:
(1) Client Certification. Client acknowledges that it is responsible
for the accuracy and completeness of the Information Package and for
all other information furnished to StockPlayer and for the accuracy and
completeness of the contents of all materials prepared by StockPlayer
for and on behalf of Client. The Client hereby designates the
individuals listed on Exhibit B attached hereto and incorporated herein
by reference as the duly authorized representatives of Client for
purposes of certifying to StockPlayer the accuracy of all documents,
advertisements or other materials prepared by StockPlayer for and on
behalf of Client. The Client agrees to promptly advise StockPlayer in
writing of any condition, event, circumstance or act that would
constitute a material adverse change in the business, properties,
financial condition or business prospects of the Client or which would
make any of the information contained in the Information Package or in
any report, advertorial or other document prepared by StockPlayer for
and on behalf of Client misleading in any material respect. Client
hereby agrees that StockPlayer and its directors, officers, agents and
employees may rely on the Information Package and on all other
information furnished by Client, and on each and every certification
provided by an authorized representative of Client, until StockPlayer
is advised in writing by an authorized representative of Client that
the information previously furnished to StockPlayer is inaccurate or
incomplete in any material respect. Client acknowledges that
StockPlayer shall have no obligation to provide services hereunder
until it has received a written certificate from an authorized
representative of Client as follows: StockPlayer shall prepare proofs
and/or tapes of the agreed upon materials and information, as set for
dissemination, for the Client's review and approval and Client shall
sign and return such materials marketing all corrections and changes
that the Client believes appropriate. Client acknowledges that
StockPlayer will make oral representations based on the information
furnished hereunder and the Client authorizes such representations.
(2) Books and Records. Client shall maintain true and complete books,
records and accounts in which true and correct entries shall be
made of its transactions in accordance with generally accepted
accounting principles consistently applied ("GAAP").
(3) Financial and Other Information. Client agrees to furnish to
StockPlayer the following information:
(A) Annual Financial Statements. As soon as practicable, and
in any event within 90 days after the close of the Client's fiscal
year, annual financial statements including a balance sheet, an
income statement, a statement of cash flows, and a statement of
stockholder's equity, and all notes thereto prepared in accordance
with GAAP and audited by an independent certified public
accountant.
(B) Quarterly Financial Statements. As soon as practicable, and in
any event within 45 days after the end of each fiscal
quarter, quarterly financial statements, including a balance
sheet, a quarterly and year-to-date income statement, a statement
of cash flows, and a statement of stockholder's equity, prepared
by Client in accordance with GAAP and certified by the chief
financial officer and chief executive officer of Client as fairly
presenting, subject to normal year-end audit adjustments, the
Client's financial position as of and for the periods indicated.
(4) StockPlayer Reliance on Client's Full Disclosure. Client will
provide, or cause to be provided, to StockPlayer all financial and
other information requested by StockPlayer for the purpose of
rendering its services pursuant to this Agreement. Client recognizes
and confirms that StockPlayer will use such information in performing
the services contemplated by this Agreement without independently
verifying such information and that StockPlayer does not assume any
responsibility for the accuracy or completeness of such information.
The persons executing this Agreement on behalf of Client certify that
there is no fact known to them which materially adversely affects or
may (so far as the Client's senior management can now reasonably
foresee) materially adversely affect the business, properties,
condition (financial or other) or operations (present or prospective)
of the Client which has not been set forth in written form delivered
by Client to StockPlayer. The persons executing this Agreement on
behalf of Client agree to keep StockPlayer promptly informed of any
facts hereafter know to Client which materially adversely affects or
may (so far as the Client's senior management can now reasonably
foresee) materially adversely the business, properties, condition
(financial or other) or operations (present or prospective) of Client.
(5) Legal Representation. Client acknowledges and agrees that it has been
and will continue to be, represented by legal counsel experienced in
corporate and securities laws and Client acknowledges that it has
been advised as to the obligations imposed on it pursuant to such laws
and understands that it will have the obligations and responsibility
to see that all such laws are complied with at all times during the
Term of this Agreement.
(6) Compensation. In consideration of the Promotional Services to be
performed by StockPlayer hereunder, StockPlayer hereby agrees to be
compensated in the manner and in the amount specified in Exhibit C
which is attached hereto and incorporated herein by reference thereto.
(7) Indemnity. Client acknowledges that it is responsible for the accuracy
of the Information Package and all other information provided to
StockPlayer and for the contents of all materials, advertorials and
other information prepared by StockPlayer for an on behalf of Client
as provided herein and Client agrees to indemnify StockPlayer in
accordance with the Indemnification Agreement set forth in Exhibit D,
which is attached hereto and incorporated herein by reference.
(8) Relationship of the Parties. This Agreement provides for the
providing of marketing and promotional services by StockPlayer to
Client and the provisions herein for compliance with financial
covenants, delivery of financial statements, and similar provisions are
intended solely for the benefit of StockPlayer to provide it with
information on which it may rely in providing services hereunder and
nothing contained in this Agreement shall be construed as permitting or
obligating StockPlayer to act as a financial or business advisor or
consultant to Client, as permitting or obligating StockPlayer to
participate in the management of client's business, as creating or
imposing any fiduciary obligations on the part of StockPlayer with
respect to the provisions of services hereunder and StockPlayer shall
have no such duty or obligation to client, as providing or counseling
Client as to the compliance by Client with any federal or state
securities or other laws affecting the services to be provided
hereunder. Or as creating any joint venture, agency, or other
relationship between the parties other than as explicitly and
specifically stated in this Agreement. The Client acknowledges
that it has had the opportunity to obtain the advice of experienced
counsel of its own choosing in connection with the negotiation and
execution of this Agreement, the provision of services hereunder and
with respect to all matters contained herein, including, without
limitation, the provisions of Section 4 hereof.
(9) Survival of Certain Provisions. The Client's obligations to pay the
fees and expenses of StockPlayer pursuant to Section 1 of this
Agreement and to comply with the indemnification provisions pursuant
to Exhibit D and shall remain operative and in full force and effect
regardless of any termination of this Agreement and shall be binding
upon, and shall inure to the benefit of, StockPlayer and, in the case
of the indemnify agreement, the persons, agents, employees, officers,
directors and controlling persons referred to in the Indemnification
Agreement, and their respective successors and assigns and heirs, and
no other person shall acquire or have any right under or by virtue of
this Agreement. All amounts paid or required to be paid under of this
Agreement shall be fully earned on the Effective Date of this Agreement
notwithstanding prior termination of this Agreement.
(10) Termination. StockPlayer shall have the right in its sole and absolute
discretion to terminate its obligations hereunder and to immediately
cease providing Promotional Services pursuant to this Agreement if
StockPlayer, in the exercise of its reasonable judgment, believes that
the representations and warranties made by Client hereunder are
inaccurate in any material respect or if Client breaches any of its
covenants and agreements contained herein or if any federal or state
governmental agency or instrumentality institutes an investigation or
suit against Client or pertaining to the services hereunder.
(11) Miscellaneous.
A. Governing Law. This Agreement shall be governed by the laws of
the State of New York.
B. Entire Agreement. This agreement and the Exhibits hereto embody
the entire agreement of the parties with respect to its subject
matter. There are no restrictions, promises, representations,
warranties, covenants, or undertakings other than those expressly
set forth or referred to herein. This Agreement supersedes all
prior agreements and understandings between the parties with
respect to its subject matter.
C. Amendments to be in Writing. This Agreement may be amended only
in a writing signed by all of the parties.
D. No Waivers by Course of Dealing; Limited Effect of Waivers. No
waiver shall be effective against any party unless it is in a
writing signed by that party. No course of dealing and no delay
on the part of StockPlayer in exercising its rights shall operate
as a waiver of that right or otherwise prejudice StockPlayer.
StockPlayer's failure to insist upon the strict performance of
any provision of this Agreement, or to exercise any right or
available to StockPlayer, shall not constitute a waiver by
StockPlayer of such provision. No specific waiver by StockPlayer
of any specific breach of any provision of this Agreement shall
operate as a general waiver of the provision or of any other
breach of the provision. Client shall have no right to cure any
breach except as specifically provided herein.
E. Counterparts. This Agreement may be executed in multiple
Counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
F. Circulation of Rights and Remedies. No right or remedy of
StockPlayer under this Agreement is intended to preclude any
other right or remedy and every right and remedy shall coexist
with every other right and remedy now or hereafter existing
whether by contract, at law, or in equity.
G. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the parties and their successors
and assigns. Client shall not have any right to assign any of
its rights or delegate any of its obligations or responsibilities
under this Agreement except as expressly stated herein.
H. Payment of Fees and Expenses on Enforcing Agreement. In the
event of any dispute between the parties arising out of or
related to this Agreement or the interpretation thereof, at the
trial level or appellate level, the prevailing party shall be
entitled to recover from the non-prevailing party all costs and
expenses, including reasonable fees and disbursements of counsel
which may be incurred in connection with such proceeding, without
limitation, including any costs and expenses of experts,
witnesses, depositions and other costs.
I. Notices. Any notice or other communication required or permitted
to be given hereunder shall be in writing, and shall be given to
the parties at the addresses set forth below (or to such other
addresses as the parties may specify by due notice to the
others). Notices or other communications shall be effective when
received at the recipient's location (or when delivered to that
location if receipt is refused). Notices or other communications
given by facsimile transmission shall be presumed received at the
time indicated in the recipient's automatic acknowledgement.
Notices or other communications given by certified mail, return
receipt requested, postage prepaid, shall be presumed received 3
business days after the date of Mail.
Client: Famous Fixins, Inc.
000 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
StockPlayer: XxxxxXxxxxx.xxx, Inc.
000 Xxxxxxx Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxxxx Xxxxxxxxxx
(000)000-0000
J. Heading. The headings in this Agreement are intended solely for
conveniences of reference. They shall be given no effect in the
construction or interpretation of this Agreement.
K. Severability. The invalidity or unenforceability of any
provision of this Agreement shall not impair the validity of
enforceability of any other provision.
In Witness Whereof, the parties have executed this Agreement as of the
date first above written.
Attest: FAMOUS FIXINS, INC.
By: By: /s/ Xxxxx Xxxxx
[Corporate Seal] -------------------------
Attest: XXXXXXXXXXX.XXX., INC.
By: By: /s/ Xxxxxxx Xxxxxxxxxx
[Corporate Seal]
Exhibit A
Promotional Services
The services to be provided are as follows:
The services that shall be provided to Famous Fixins, Inc. will be
designed to assist the Company disseminating information concerning the
Company's business to the investing public by use of the Internet, radio and
magazine hard copy. This Agreement will be for a period of five years.
The parties hereto by signing this Exhibit in the space provided below
signify their agreement regarding the service to be provided by StockPlayer
under the Agreement.
FAMOUS FIXINS, INC.
By: /s/Xxxxx Xxxxx
---------------------------
XXXXXXXXXXX.XXX., INC.
By: /s/ Xxxxxxx Xxxxxxxxxx
---------------------------
EXHIBIT B
Client hereby designates the following person or persons to act on its behalf
of the Agreement.
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
EXHIBIT C
COMPENSATION
1. Famous Fixins, Inc. agrees to issue StockPlayer 1,000,000 shares of
Common Stock in Client (the "Shares") which Shares shall be duly and
validly issued, fully paid and nonassessable and shall not be issued in
violation of any preemptive right of any stockholders of client. The
Shares shall be issued in compliance with the exemption from the
registration requirements of the Securities Act of 1933 (the "Act")
and/or pursuant to Rule 504 of the General Rules and Regulation under
the Securities Act of 1933.
2. Client acknowledges that the consideration to be paid to StockPlayer
shall be fully earned on the date that StockPlayer commences providing
services under the Agreement regardless of whether the Agreement is
terminated as provided in the Agreement prior to completion of all
services.
The parties hereto by signing this Exhibit in the space provided below
signify their agreement to the compensation provisions contained herein.
FAMOUS FIXINS, INC.
By: /s/ Xxxxx Xxxxx
---------------------------
XXXXXXXXXXX.XXX, INC.
By: /s/ Xxxxxxx Xxxxxxxxxx
---------------------------
EXHIBIT D
INDEMNIFICATION
This Indemnification Agreement constitutes part of xxxXxxxxXxxxxx.xxx,
Inc. (the Agreement) dated February 9, 1999 between Client (as defined in the
Agreement) and StockPlayer.
Client acknowledges and agrees that if, in connection with the services
or matters that are the subject of or arise out of such Agreement,
StockPlayer becomes involved (whether or not as a named party) in any action,
claim or legal proceeding (including any governmental inquiry or
investigation), Client agrees to reimburse StockPlayer for its reasonable
legal fees, disbursements of counsel and other expenses (including the cost
of investigation and preparation) as they are incurred by StockPlayer, Client
also agrees to indemnify and hold StockPlayer harmless against any losses,
claims damages, or liabilities, joint or several, as incurred, to which
StockPlayer may become subject in connection with the services or matters
which are the subject of or arise out of the Agreement; provided, however,
that Client shall not be liable under the foregoing indemnify in respect of
any loss, claim, damage or liability to the extent that a court having
jurisdiction shall have determined by a final judgment that such loss, claim,
damage or liability is a consequence of intentional fraudulent acts committed
by StockPlayer without the knowledge and/or consent of Client. In the event
that the foregoing indemnify is unavailable by operation of law, then Client
shall contribute to amounts paid or payable by StockPlayer in respect of such
losses, claims, damages and liabilities in the proportion that Client's
interest bears to StockPlayer's interest in the matters contemplated by the
Agreement. If, however, the allocation provided immediately preceding
sentence is not permitted by applicable law, or otherwise, then Client shall
contribute to such amount paid or payable by StockPlayer in such proportion
as is appropriate to reflect not only such relative interests but also the
relative fault of Client on the one hand and StockPlayer on the other hand in
connection with the matters as to which such losses, claims, damages or
liabilities relate and other equitable considerations.
Promptly after StockPlayer's receipt of notice of the commencement of
any action or of any claim, StockPlayer will, if a claim in respect thereof
is to be made against Client under this Indemnify Agreement, notify Client of
the commencement thereof. In case any such actin or claim is brought against
StockPlayer, Client will be entitled to participate therein and, to the
extent that Client may wish, to assume the defense thereof, with counsel
satisfactory to StockPlayer. After notice from Client to StockPlayer of
Client's election to so assume the defense thereof, Client will not be liable
to StockPlayer for indemnification as provided in the preceding paragraph for
any legal fees, disbursements of counsel or other expenses subsequently
incurred by StockPlayer in connection with the defense thereof other than
reasonable costs of investigation; provided that StockPlayer shall have the
right to employ separate counsel if, in the reasonable judgment of
StockPlayer's counsel, it is advisable for StockPlayer to be represented by
separate counsel or if in the reasonable judgement of StockPlayer's counsel,
Client not vigorously and actively defending against any such claim or
claims, and in either such event the reasonable legal fees and disbursements
of such separate counsel shall be paid by Client.
The foregoing agreements shall apply to any modification of the
Agreement, shall remain in full force and effect following the completion or
termination of StockPlayer engagement under the Agreement and shall be in
addition to any rights that StockPlayer may have at common law or otherwise.
The agreements in this Indemnification Agreement shall extend to and inure to
the benefit of each person, if any, who may be deemed to control StockPlayer,
be controlled by StockPlayer or be under common control with StockPlayer and
to StockPlayer's, and to cash such other person's respective affiliates,
directors, officers, employees and agents. This indemnification Agreement
shall be binding on any successor of Client.
Client represents that the Indemnification Agreement contained herein
is the legal, valid, binding and enforceable obligation of Client,
enforceable against Client according to its terms.
This Indemnification Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to
principles of conflicts of law, and the forum for resolution of legal and
interpretive issues shall be the Federal District courts in the State of New
York.
The parties hereto by signing this Exhibit in the space provided below
signify their agreement to the indemnification provisions contained herein.
FAMOUS FIXINS, INC.
By: /s/ Xxxxx Xxxxx
---------------------------
XXXXXXXXXXX.XXX, INC.
By:
---------------------------
