BUSINESS DEVELOPMENT AGREEMENT
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THIS BUSINESS DEVELOPMENT AGREEMENT (this "Agreement") is entered into and
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is effective as of May 25, 2001 (the "Effective Date") by and between E-XXX,
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INC., a Nevada corporation with principal offices at 00000 Xxxxxxxx Xxxx, Xxxxx
000, Xxxxx, Xxxxxxx 00000 ("Company") and BIG APPLE CONSULTING U.S.A., INC, a
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Delaware corporation, with principal offices at 0000 Xxxx Xxxxxxx Xxxxxxxxx,
Xxxxxx, Xxxxxxx 00000 ("Consultant").
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R E C I T A L S:
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A. Consultant is a company having personnel familiar with the personal
computer, telecommunications, portable and handheld communication device and
similar industries in Europe, has certain pre-existing, definite, identifiable
relationships with key authorized product development, manufacturing and
purchasing personnel within leading companies in such industries and is now
actively engaged in the business of developing such relationships for, and
making such introductions to, businesses like Company.
B. Company is currently developing a portable wireless internet-capable
device (the "Dragonfly") which should have complete working prototype models
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available sometime after the date of this Agreement and is engaged in the
provision of various business services.
C. Company desires to promote itself, the Dragonfly and its various
business services through Consultant's efforts in Europe pursuant to the terms
and conditions of this Agreement.
T E R M S:
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NOW THEREFORE, for and in consideration of the mutual premises and
covenants contained herein, and other good and valuable consideration, the
receipt, sufficiency and adequacy of which is hereby acknowledged, the parties
agree as follows:
1. Recitals. The foregoing recitals are true and correct and are hereby
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incorporated by reference into the substance of this Agreement.
2. Engagement of Consultant and Designation of Individual.
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A. Company hereby engages Consultant (i) to promote Company, the
Dragonfly and Company's business services in Europe, (ii) to identify and
develop key relationships for manufacturing, marketing, selling and the like of
the Dragonfly in Europe, (iii) to introduce Company and the Dragonfly to key
players in the personal computer, telecommunications, portable and handheld
communication device and similar industries in Europe, and (iv) to otherwise
generally develop business relationships and opportunities in Europe for
Company, which are consistent with Company's business operations with specific
focus on the Dragonfly.
B. Xxxxx Xxxxxx shall be designated as the individual employee within
Consultant (the "Consultant Designee") to be primarily responsible for
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Consultant's engagement with Company and who will act as Company's
representative in Europe for purposes of satisfying Consultant's obligations
hereunder. Consultant shall not change Consultant Designees without the prior
written approval of Company, nor shall Consultant allow any other employee,
contractor, consultant, agent or the like to communicate on behalf, or as an
agent or representative, of Company, or otherwise engage in the business
development activities provided for hereunder, without Company's prior written
approval.
3. Services to be Performed by Consultant.
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A Within three (3) weeks from the date of this Agreement, Consultant
shall prepare and deliver to Company an in-depth market analysis (the "Market
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Analysis") of the Northern European market for personal computers,
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telecommunications and handheld and portable communications devices. The
analysis shall include, at a minimum, (i) the size and characteristics of the
market segments, potential customers for the Dragonfly, potential European
partners for Company, potential Dragonfly manufacturing, marketing, sales and
distribution partners or affiliates for Company and potential product or
business competitors to Company or the Dragonfly. Without limiting the scope or
coverage of the report, the analysis shall include relevant information
concerning Ericsson, Nokia, Siemens, Telia Mobile AB, Europolitan, Orange,
Duetch Telecom, Manasman and other significant players in the industries.
B. Consistent with the results of the Market Analysis, Consultant shall
prepare and deliver to Company a strategic action plan and timeline (the "Action
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Plan") for introducing Company and the Dragonfly into the European market and
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engaging European partners, affiliates, agents, and other individuals and
entities for purposes of manufacturing, marketing, selling and distributing the
Dragonfly in Europe.
C. In connection with its implementation of the Action Plan, Consultant
shall act as Company's agent in Europe for purposes of identifying such European
partners, affiliates, agents and other individuals and entities, negotiating
(with the full prior knowledge and consent of Company, including approval of
Company's Board of Directors where necessary) the terms and conditions of
appropriate documentation to consummate the appropriate relationships and
otherwise overseeing, having primary responsibility for and facilitating the
introduction, testing and acceptance of the Dragonfly by potential and existing
partners, affiliates, agents, individuals and entities.
D. Consultant shall otherwise act on behalf of Company in a manner
consistent with usual and customary business development practices in the
personal computer, telecommunications, handheld and portable communication
device and similar industries and shall undertake all reasonable actions and
activities in connection therewith in the best interest of Company. Consultant
Designee shall spend not less than twenty-five (25) hours per week diligently
focused on business development activities related to, and directly for the
benefit of, Company. Subject to any delays not within the control of Company,
Company shall, within sixty (60) days after the Effective Date, provide to
Consultant a prototype of the Dragonfly for use by Consultant Designee.
2. Term & Fees.
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A. The term of this Agreement shall commence on the Effective Date and
shall expire at 5:00 p.m., Miami, Florida time, on the last day of the sixth
(6th) full calendar month thereafter (the "Initial Term"). Upon the expiration
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of the Initial Term of this Agreement, and upon the expiration of each Renewal
Term (hereinafter defined) thereafter, this Agreement shall automatically renew
for an additional six (6) month period (each a "Renewal Term"), provided that
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the parties, prior to the expiration of the Initial Term or any Renewal Term, as
applicable, shall have executed and delivered a written instrument specifying
their intention for this Agreement to be renewed and any mutually agreed upon
modifications of this Agreement; otherwise, this Agreement shall expire and
become null and void immediately upon the expiration of the Initial Term or any
then current Renewal Term. Notwithstanding the foregoing, Company may, at any
time, for any reason, terminate this Agreement upon written notice to
Consultant.
B. As compensation for Consultant's services hereunder, Consultant
shall be entitled to receive:
1. Promptly upon execution and delivery of this Agreement, $30,000.00
(US) cash or a number of restricted shares of Company's common stock
then equal in value to $39,000.00 based on the closing bid price on
the day of execution.
2. Within thirty (30) days of Company's receipt of an invoice from
Consultant, but not more frequently than once per month, an amount
equal to the reasonable and necessary actual out-of-pocket expenses
(which have been approved in advance by Company and for which
Consultant has provided descriptive receipts or other reasonably
descriptive documentation) incurred by Consultant in the course of
performing its obligations hereunder.
3. An amount equal to five percent (5.0%) of the gross revenue received
by Company for sales occurring in Europe during the term of this
Agreement of Company's products or services (including, without
limitation, the Dragonfly) directly resulting from Consultant's
efforts pursuant to this Agreement. This amount shall be payable upon
Company's receipt of such revenues and payment of Company's
obligations in the ordinary course of its business.
3. Non-Exclusive License.
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A. Provided Consultant complies with the terms and conditions of this
Agreement, Company hereby grants to Consultant, during the term of this
Agreement, a non-exclusive license to use within Europe Company's present and
future trademarks, trade names, service marks, brand names, logos and slogans,
provided such usage conforms with Company's guidelines.
B. No license granted herein shall be assignable or transferable, and
Consultant will not grant any sublicense without Company's express written
permission.
4. Proprietary Information and Disclosure. Consultant acknowledges that in
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the course of performing under this Agreement it may obtain Company information
which is of a confidential and proprietary nature ("Proprietary Information").
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Such Proprietary Information may include, but is not limited to, business
information such as marketing strategies and principles, trade secrets, existing
and potential customers, and, sales and marketing plans. Consultant, its
employees, agents, and representatives shall, during the term of this Agreement
and after its termination, keep in trust and confidence all such Proprietary
Information, and shall not use such Proprietary Information other than in the
course of Consultant's performance under this agreement, and shall diligently
protect any and all Proprietary Information of Company from unauthorized
disclosure.
5. Relationship of the Parties. Consultant is and will hold itself out to
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be an independent contractor and not an agent, partner or employee of Company.
Consultant is not authorized to make any promise, warranty or representation on
Company's behalf with respect to any of Company's products or services or any
other matter, except as expressly authorized by Company.
6. Notice. All notices must be in writing and sent to the appropriate
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address listed above or to such other address as either party may request in
accordance with this Section 6, by certified mail, return receipt requested, or
by reputable overnight courier service. Notice shall be deemed given as of the
date of deposit with the United States Postal Service (in the case of certified
mail) or the reputable overnight courier.
7. Miscellaneous.
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A. Each of the parties shall hereafter execute all documents and do all
acts reasonably necessary to effect the provisions of this Agreement.
B. The provisions of this Agreement shall be deemed to obligate, extend
to and inure to the benefit of the successors, assigns, transferees, grantees,
and indemnities of each of the parties to this Agreement.
C. This Agreement and the interpretation and enforcement of the terms
of this Agreement shall be governed under and subject to the laws of the State
of Florida. Venue for any action taken hereunder shall be Dade County, Florida.
D. This Agreement, after full execution, acknowledgment and delivery,
memorializes and constitutes the entire agreement and understanding between the
parties and supersedes and replaces all prior negotiations and agreements of the
parties, whether written or unwritten. Each of the parties to this Agreement
acknowledges that no other party, nor any agent or attorney of any other party
has made any promises, representations, or warranty whatsoever, express or
implied, which is not expressly contained in this Agreement; and each party
further acknowledges that he or it has not executed this Agreement in reliance
upon any belief as to any fact not expressly recited hereinabove.
E. In the event of a dispute between the parties concerning the
enforcement or interpretation of this Agreement, the prevailing party in such
dispute, whether by legal proceedings or otherwise, shall be reimbursed
immediately for the reasonably incurred attorneys' fees and other costs and
expenses by the other parties to the dispute.
F. Wherever the context so requires, the singular number shall include
the plural and the plural shall include the singular.
G. The captions by which the sections and subsections of this Agreement
are identified are for convenience only, and shall have no effect whatsoever
upon its interpretation.
H. If any provision of this Agreement is held to be illegal or invalid
by a court of competent jurisdiction, such provision shall be deemed to be
severed and deleted and neither such provision, nor its severance and deletion,
shall affect the validity of the remaining provisions.
I. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original and, when taken together shall constitute
one and the same instrument.
J. Except as permitted under this Section 4 above, each of the parties
hereto agrees to bear its own costs, attorney's fees and related expenses
associated with this Agreement.
K. Any dispute or claim arising to or in any way related to this
Agreement shall be settled by arbitration in Miami, Florida. All arbitration
shall be conducted in accordance with the rules and regulations of the American
Arbitration Association ("AAA"). AAA shall designate a panel of three
arbitrators from an approved list of arbitrators following both parties' review
and deletion of those arbitrators on the approved list having a conflict of
interest with either party. Each party shall pay its own expenses associated
with such arbitration (except as set forth in this Section 7). A demand for
arbitration shall be made within a reasonable time after the claim, dispute or
other matter has arisen and in no event shall such demand be made after the date
when institution of legal or equitable proceedings based on such claim, dispute
or other matter in question would be barred by the applicable statutes of
limitations. The decision of the arbitrators shall be rendered within sixty
(60) days of submission of any claim or dispute, shall be in writing and mailed
to all the parties included in the arbitration. The decision of the arbitrator
shall be binding upon the parties and judgement in accordance with that decision
may be entered in any court having jurisdiction thereof.
L. Neither Company, nor Consultant, shall have the right to assign or
delegate this Agreement or any rights or obligations created hereby unless the
non-assigning party expressly approves the assignment in writing.
M. A responsible officer of each party has read and understands the contents
of this Agreement and is empowered and duly authorized on behalf of that party
to execute it.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set
forth above.
COMPANY:
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E-XXX, INC., a Nevada corporation
/s/ Xxxx X. Xxxxxx
By: Xxxx X. Xxxxxx, President
CONSULTANT:
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BIG APPLE CONSULTING U.S.A., INC.,
a Delaware corporation
/s/ Xxxx Xxxxxx
By: Xxxx Xxxxxx, President
