EXHIBIT 10.71
AGREEMENT made, effective as of the 30th day of September, 2000, by
and among ATM SERVICE, LTD., a New York corporation ("ATM"); THE INTRAC GROUP,
LTD., a Delaware corporation ("INTRAC"); and XXXXXX XXXXXXXXX ("XXXXXXXXX").
WHEREAS, Xxxxxxxxx and WorldWide Web NetworX Corporation ("WWWX")
have entered into that certain Stock Issuance Agreement, dated December 1, 1999,
as amended, whereby WWWX issued and delivered 4,000,000 shares of restricted
WWWX common stock to Xxxxxxxxx (the "WWWX SHARES"); and
WHEREAS, in February 2000, ATM and Intrac each entered into a
Management Services Agreement, dated as of July 23, 1999, with Xxxxxxxxx (the
"MANAGEMENT SERVICES AGREEMENTS"), whereby ATM and Intrac each engaged Xxxxxxxxx
to serve as the chairman and chief executive officer of ATM and Intrac; and
WHEREAS, Xxxxxxxxx has acted as chairman, president and chief
executive officer of WWWX during the period from September 23, 1999 through
April 26, 2000 and as chairman and chief executive officer of ATM and Intrac
during the period from July 23, 1999 to date; and
WHEREAS, the parties have agreed to terminate the Management
Services Agreements, effective as of September 30, 2000, and to memorialize
herein certain other agreements between the parties.
NOW, THEREFORE, the parties hereto have agreed as follows,
intending to be legally bound hereby:
1. The Management Services Agreements and any other management or
other agreement between or among Xxxxxxxxx, ATM and/or Intrac (the "MANAGEMENT
AGREEMENTS") shall terminate, effective as of September 30, 2000, and each party
hereby releases the others from any and all obligations thereunder. Concurrently
with the execution of this Agreement, Xxxxxxxxx shall cease to be an authorized
signatory on any ATM bank account and Xxxxxxxxx shall, upon request, execute any
documentation necessary in order to remove Xxxxxxxxx as a signatory to such
accounts.
2. In consideration for Xxxxxxxxx'x agreement to terminate the
Management Agreements, ATM and/or Intrac will (a) reimburse D&W Enterprises,
Inc. ("D&W") for the payroll costs and the costs of employee benefits, as set
forth on Schedule I attached hereto, for all of the Tarrytown Employees listed
on Schedule I (including Xxxxxxxxx), during the period from the date of this
Agreement through October 31, 2000, and (b) reimburse D&W Enterprises, Inc.
("D&W") for the payroll costs and the costs of employee benefits, as set forth
on Schedule I attached hereto, for all of the Tarrytown Employees listed on the
Schedule (except Xxxxxxxxx), for the month of November 2000. The parties
acknowledge and agree that, notwithstanding anything contained herein to the
contrary, neither ATM nor Intrac shall have any obligation or
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liability to Xxxxxxxxx or to any other Tarrytown Employee except as specifically
provided herein.
3. Xxxxxxxxx will cause the Tarrytown Employees to (a) close the
books and records of ATM, as of September 30, 2000 (the "BALANCE SHEET DATE"),
(b) prepare such books and records in accordance with the requirements of
Generally Accepted Accounting Procedures ("GAAP"), and (c) deliver such books
and records to ATM's designated representatives no later than 10:00 A.M. on
Wednesday, October 25, 2000, together with a balance sheet which reflects all of
the material liabilities and assets of ATM as of the Balance Sheet Date, with
the possible exception only of any liabilities incurred or assets acquired on
behalf of ATM by persons other than Xxxxxxxxx and the other Tarrytown Employees
and of which Xxxxxxxxx and the other Tarrytown Employees have no knowledge (the
"BALANCE SHEET"), all supporting documentation in the possession of Xxxxxxxxx or
any of the other Tarrytown Employees and a list of all fixed assets owned or
leased by ATM, indicating, in each case, which are owned and which are leased.
During the period from the date of this Agreement through the period ending
thirty (30) days after the Closing Date (as defined hereafter), Xxxxxxxxx shall
also make himself and the other Tarrytown Employees available to ATM's
representatives, and cooperate fully and use his best efforts to cause such
employees to cooperate fully with ATM's representatives in connection with their
review of such books and records, and answer and use his best efforts to cause
such employees to answer any questions that ATM's representatives may have
regarding such books and records. For purposes of this Agreement, the "Closing
Date" means November 15, 2000.
4. On the Closing Date, Xxxxxxxxx will transfer to ATM all assets
which were acquired on behalf of ATM by Xxxxxxxxx or any of the other Tarrytown
Employees that are not currently warehoused in ATM's name. ATM will discharge
and hold Xxxxxxxxx harmless from all liabilities which are reflected on the
Balance Sheet and which were incurred in the name or for the benefit of ATM in
connection with transactions with respect to which ATM has received, or is
entitled to receive, in the normal course of business, all of the assets
acquired and revenues derived or generated.
5. Xxxxxxxxx shall execute and deliver to ATM and Intrac,
simultaneously with the execution of this Agreement, his letter of resignation
as the Chairman and a member of the Board of Directors of ATM and Intrac.
6. Xxxxxxxxx shall, on the Closing Date, deliver to (a) WWWX a
stock certificate, together with a stock power, executed in blank, for 2,600,000
WWWX Shares and (b) ATM a stock certificate, together with a stock power,
executed in blank, for the 480 shares of the common capital stock of ATM owned
by Xxxxxxxxx.
7. Xxxxxxxxx shall have the right to use and occupy the Tarrytown
Premises during the period from the date of this Agreement through December 31,
2000; PROVIDED, HOWEVER, that Xxxxxxxxx shall pay or reimburse ATM for all
costs, charges and expenses incurred by ATM and/or Xxxxxxxxx in connection with
the use of the Tarrytown Premises during such period of time other than the base
rent payable by ATM under its lease for the Tarrytown Premises; PROVIDED,
FURTHER, that Xxxxxxxxx acknowledges that it
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is ATM's intention to sublet the Tarrytown Premises as soon as possible on or
after January 1, 2001 and to terminate all of its leases for the personal
property leased by ATM and located at the Tarrytown Premises as soon as possible
on or after the Closing Date (other than the lease for the telephone system at
the Tarrytown Premises, which ATM shall attempt to terminate as soon as possible
on or after January 1, 2001, subject to the provisions of the following
Paragraph 8) and Xxxxxxxxx agrees that both he and all other Tarrytown Employees
shall cooperate fully with ATM and its agents and representatives in connection
with their efforts to do so. Xxxxxxxxx further agrees that, subject to the
provisions of the following Paragraph 8, Xxxxxxxxx will vacate and surrender
possession of the Tarrytown Premises to ATM on or before December 31, 2000.
Xxxxxxxxx shall have the right to assume ATM's lease(s) for the equipment listed
on Schedule II attached hereto, effective as of the Closing Date, provided that
Xxxxxxxxx has caused ATM to be released from any further liability under such
lease(s).
8. Xxxxxxxxx shall have right to sublet the office currently
occupied by Xxxxxxxxx and the newly built-out "expansion space" of the Tarrytown
Premises, which shall include the right to use the telephone system at the
Tarrytown Premises, on a month-to-month basis, commencing January 1, 2001, by
giving written notice to ATM of his intention to do so on or before December 15,
2000, for a rental equal to 25% of the total amount of the rent and other
charges paid by ATM under its lease for the Tarrytown Premises and the equipment
leases for the personal property leased by ATM and located at the Tarrytown
Premises, to the extent that such leases have not been assumed by Xxxxxxxxx or
terminated in accordance with the provisions of Paragraph 7, plus a negotiated
amount for the use of the telephone system; PROVIDED, HOWEVER, that either ATM
or Xxxxxxxxx shall have the right to terminate such sublease arrangement at the
end of the then-current 30-day term by giving the other party at least 30 days
prior written notice. On or before December 31, 2000 or upon the termination of
the foregoing sublease arrangement, whichever shall later occur, Xxxxxxxxx shall
vacate and surrender possession of the Tarrytown Premises to ATM and to cause
all personal property and personal effects owned by Xxxxxxxxx to be removed from
the said premises.
9. Xxxxxxxxx hereby transfers, assigns and sets over unto ATM all
right, title, interest and/or claim, if any, that he has or may have in or to
the domain name xxxxxxxxx.xxx and other domain name that includes the name
"ATM," and any derivatives thereof, and Xxxxxxxxx agrees that he shall not use
such domain names, or any other domain name that is similar thereto, or the
names ATMcenter or ATM Service, or any other trade name that is confusingly
similar thereto, in any way or for any purpose. Xxxxxxxxx shall, on or after the
Closing Date, execute and deliver to ATM formal assignment documents or any
other document reasonably requested by ATM in order to effect such assignments.
10. Xxxxxxxxx also hereby transfers, assigns and sets over unto ATM
and WWWX all right, title, interest and/or claim, if any, that he has or may
have in or to any and all software programs or other intellectual property, or
any other property, owned by such party and/or used by such party in connection
with the operation of its business. Xxxxxxxxx shall, at the request of ATM
and/or WWWX, execute and deliver, on or after
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the Closing Date, formal assignment documents or any other document reasonably
requested by ATM and/or WWWX in order to effect such assignments.
11. Xxxxxxxxx shall promptly transfer or deliver to ATM and/or
Intrac, from time to time on and after the Closing Date, any and all checks,
cash remittances or other property received by Xxxxxxxxx or his employees,
agents or representatives which is payable to or which is the property of ATM
and/or Intrac.
12. On the Closing Date, Xxxxxxxxx shall turn over and deliver to
the designated representatives of ATM all property owned or leased by ATM
(except as otherwise provided herein) which is in Xxxxxxxxx'x possession or
located at the Tarrytown Premises and all documents, records and other
information of any type whatsoever concerning or relating to the business and
affairs of ATM.
13. Xxxxxxxxx acknowledges that he is not entitled to any further
consideration or monies from ATM, Intrac and/or WWWX, including any benefits,
payments or wages, except as specifically set forth in this Agreement.
14. As a material inducement to ATM and Intrac to enter into this
Agreement, Xxxxxxxxx hereby irrevocably and unconditionally releases, acquits,
and forever discharges ATM and Intrac, and their respective directors, officers
and employees (collectively the "RELEASEES"), from any and all charges,
complaints, claims, controversies, damages, actions, causes of action, suits,
rights, demands, costs, losses, debts, and expenses (including attorneys fees
and costs actually incurred), of any nature whatsoever, known or unknown, which
Xxxxxxxxx now has, owns, holds, or claims to have, own, or hold, or claimed to
have, own, or hold, or which Xxxxxxxxx may have, own, or hold, or claim to have,
own, or hold, arising out of or in any matter or thing, from the beginning of
time until the date of the execution of this Agreement, with the exception only
of the obligations of ATM and Intrac hereunder. Xxxxxxxxx acknowledges and
agrees that his acceptance of this Agreement constitutes a full, complete, and
knowing waiver of any claims, asserted or non-asserted, that Xxxxxxxxx may have
against ATM and/or Intrac. On the Closing Date, Xxxxxxxxx and WWWX shall
exchange a Mutual General Release covering the period from the date of the
Mutual General Release that was exchanged by Xxxxxxxxx and WWWX in connection
with Xxxxxxxxx'x resignation as a director of WWWX through the Closing Date.
15. As a material inducement to Xxxxxxxxx to enter into this
Agreement, ATM and Intrac each hereby irrevocably and unconditionally release,
acquit, and forever discharge Xxxxxxxxx from any and all charges, complaints,
claims, controversies, damages, actions, causes of action, suits, rights,
demands, costs, losses, debts, and expenses (including attorneys fees and costs
actually incurred), of any nature whatsoever, known or unknown, which such party
now has, owns, holds, or claims to have, own, or hold, or claimed to have, own,
or hold, or which such party may have, own, or hold, or claim to have, own, or
hold, arising out of any matter or thing, from the beginning of time until the
date of execution of this Agreement, with the exception only of Xxxxxxxxx'x
obligations hereunder. ATM and Intrac acknowledge and agree that their
acceptance of
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this Agreement constitutes a full, complete, and knowing waiver of any claims,
asserted or non-asserted, that they may have against Xxxxxxxxx.
16. Each party agrees not to directly or indirectly take, support,
encourage or participate in any action or attempted action that in any way would
damage the reputation or business or business prospects of any of the other
parties or any of their affiliates. Xxxxxxxxx agrees that he will (and use his
best efforts to cause his employees to) cooperate fully with ATM and Intrac and
their designated agents/representatives as reasonably necessary in connection
with any legal disputes and/or proceedings and/or business matters relating to
issues and/or incidents which took place during Xxxxxxxxx'x association with ATM
and Intrac; PROVIDED, HOWEVER, that ATM shall pay or reimburse Xxxxxxxxx for any
out-of-pocket expenses incurred by Xxxxxxxxx or such employees in connection
with such cooperation.
17. Notwithstanding anything contained herein to the contrary, this
Agreement is not intended to operate as, and shall not be deemed to be, a
covenant not to compete, provided that Xxxxxxxxx does not commit or engage in
any acts which constitute unfair competition.
18. Each of the parties hereto agrees not to disparage any other
party in any way or to speak about any other party in negative terms.
19. This Agreement shall be construed under New York law without
regard to the conflict of laws provision therein and any actions relating
thereto must be brought within the State of New York.
20. Any rule of construction to the effect that ambiguities are to
be resolved against the drafting party shall not apply in interpreting this
Agreement.
21. Xxxxxxxxx warrants and represents that he is fully competent to
enter into this Agreement, has carefully read and fully understands the terms of
this Agreement, has had the advice of counsel with respect this Agreement and
been given a reasonable opportunity to consider the terms of the Agreement, and
that he has signed this Agreement freely and voluntarily.
22. ATM and Intrac each hereby warrants and represents as follows:
a. all necessary corporate action has been taken to
authorize such party to enter into this Agreement and to
perform its obligations hereunder;
b. ATM is a corporation duly organized, validly existing
and in good standing as a domestic corporation under the
laws of the State of New York and Intrac is a
corporation duly organized, validly existing and in good
standing as a domestic corporation under the laws of the
State of State of Delaware;
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c. such party has all requisite corporate power and
authority to perform its obligations hereunder; and
d. this Agreement has been duly and validly executed and
delivered by such party and is the valid and binding
obligation of such party, enforceable against such party
in accordance with its terms.
23. All notices or other communications hereunder shall not be
binding on any party hereto unless in writing, and delivered to the other party
hereto at the following address:
If to ATM and/or Intrac, to:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: President
with a copy to:
ATM Service, Ltd.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: G. Xxxxx Xxxxxxxxx
If to Xxxxxxxxx, to:
0 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
with a copy to:
Xxxx Xxxxxxx, P.C.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxxx
Notices shall be deemed duly delivered upon hand delivery thereof
at the above address or five (5) days after deposit thereof in the United States
mails, postage prepaid, certified or registered mail. Either party may change
its address for notice by delivery of written notice thereof in the manner
provided above.
24. This Agreement may be executed in any number of counterparts
and any party hereto may execute any such counterpart, each of which when
executed and delivered shall be deemed to be an original and all of which
counterparts taken together shall constitute but one and the same instrument.
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25. This Agreement constitutes the entire agreement by and among
the parties hereto with respect to the subject matter hereof and the
transactions contemplated hereby, and supersedes all prior oral and/or written
understandings and agreements relating thereto. None of the parties nor any of
its agents or representatives has made any representations to the other which
the parties intend to have any force or effect, except as specifically set forth
herein, and no party, in executing or performing this Agreement, is relying upon
any statement, covenant, representation or information, of any nature,
whatsoever, to whomsoever made or given, directly or indirectly, verbally or in
writing, by any person or entity, except as specifically set forth herein. This
Agreement may not be modified or changed, in any way, except in writing signed
by all of the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
/s/ Xxxxxx Xxxxxxxxx
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XXXXXX XXXXXXXXX
ATM SERVICE, LTD.
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: President
THE INTRAC GROUP, LTD.
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: President
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TO THE BOARD OF DIRECTORS OF ATM SERVICE, LTD.:
I hereby resign as the Chairman and a member of the Board of Directors of the
Corporation, effective immediately.
Date: October 19, 2000 /s/ Xxxxxx Xxxxxxxxx
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Xxxxxx Xxxxxxxxx
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TO THE BOARD OF DIRECTORS OF THE INTRAC GROUP, LTD:
I hereby resign as the Chairman and a member of the Board of Directors of the
Corporation, effective immediately.
Date: October 19, 2000 /s/ Xxxxxx Xxxxxxxxx
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Xxxxxx Xxxxxxxxx
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