CONSULTING AGREEMENT WITH THE YANKEE COMPANIES
Consulting Agreement
This Consulting Agreement (the "Agreement") is made and entered into by and
between Equity Growth Systems, inc., a publicly held Delaware corporation with a
class of equity securities registered under Section 12(g) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and currently trading on
the over the counter bulletin board operated by but not a part of NASDAQ
("Client"); and, The Yankee Companies, Inc., a Florida corporation ("Yankees";
Client and Yankees being hereinafter collectively referred to as the "Parties"
and generically as a "Party").
Preamble :
WHEREAS, Client is engaged in the business more particularly described in
the reports filed by Client with the Securities and Exchange Commission ("SEC"
or "Commission"), as disclosed in the SEC's ▇▇▇▇▇ web site on the Internet at
"http//▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇/▇▇▇▇▇/▇▇▇▇; and
WHEREAS, Yankees has substantial strategic business experience, acumen and
contacts, and Client desires to avail itself of Yankees' services in conjunction
with development and implementation of strategic plans designed to increase
profitability, expand operations, and to assure attainment of such goals by
securing Yankees's assistance to develop proper investment banking
relationships, develop ongoing access to debt and equity capital markets, and
develop growth through acquisition of complementary business operations; and
WHEREAS, Client's current business plans have been negatively effected by
the health of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇, until recently its sole director and
principal officer, as well as the person most knowledgeable as to Client's
business, and Client desires engage Yankees to assist it to restructure its
management and its strategic business plans; and
WHEREAS, Yankees is agreeable to making its services available to Client,
on the terms and subject to the conditions hereinafter set forth:
NOW, THEREFORE, in consideration for Yankees's agreement to render the
hereinafter described services as well as of the premises, the sum of TEN ($10)
DOLLARS, and other good and valuable consideration, the receipt and adequacy of
which is hereby acknow- ledged, the Parties, intending to be legally bound,
hereby agree as follows: Witnesseth:
ARTICLE ONE
OBLIGATIONS OF THE PARTIES
1.1 Description of Services
(A) Yankees's areas of expertise include corporate structure, organization and
reorganization; mergers, acquisitions and divestitures; strategic corporate
development; corporate financial and equity analysis; market strategy
planning and implementation; corporate communication, financial public
relations and stockholder relations consulting; business plan development
and implementation; marketing sales and analysis; executive and
professional recruitment; coordination and supervision of professional
services; development and implementation of regulatory compliance
procedures (the "Services").
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(B) During the Initial Term of this Agreement (as hereinafter defined), Yankees
shall provide Client with the Services, on a reasonable, as required basis,
consistent with Yankees's other business activities.
(C) Because of Client's status under federal securities laws, in any
circumstances where Yankees is describing the securities of Client to a
third Party, Yankees shall disclose to such person the compensation
received from Client to the extent required under any applicable laws,
including, without limitation, Section 17(b) of the Securities Act of 1933,
as amended; however, the Parties acknowledge they do not contemplate that
Yankees shall be involved in any activities on behalf of Client requiring
such descriptions or disclosures, or that the Services involve any
activities subject to regulation under federal or state securities laws
other than the prohibitions of the Foreign Corrupt Practices Act, except
for the introduction of Client and its principals to licensed broker
dealers in securities, securities analysts and appropriate corporate
information and stockholder relations specialists.
1.2 Fiduciary Obligation to Client
In rendering its services, Yankees shall not disclose to any third party any
confidential non-public information furnished by Client or otherwise obtained by
it with respect to Client.
1.3 Limitations on Services
(A) The Parties recognize that certain responsibilities and obligations are
imposed by federal and state securities laws and by the applicable rules
and regulations of stock exchanges, the National Association of Securities
Dealers, Inc. (collectively with its subsidiaries being hereinafter
referred to as the "NASD"), in-house "due diligence" or "compliance"
depart- ments of licensed securities firms, etc.; accordingly, Yankees
agrees that it will not release any information or data about Client to any
selected or limited person(s), entity, or group if the Consultant is aware
that such information or data has not been generally released or
promulgated.
(B) Yankees shall restrict or cease, as directed by Client, all efforts on
behalf of Client, including all dissemination of information regarding
Client, immediately upon receipt of instructions (in writing by fax or
letter) to that effect from Client.
1.4 Consultant's Compensation
(A) Except as described below with reference to certain of the services
described above, which are to be completed within the initial 365 days of
this Agreement:
(1) Yankees will ▇▇▇▇ at its standard hourly rates for all work as to
which a prior written arrangement with different terms has not been
entered into, however, no hourly billable services will be provided
except at Client's specific request.
(2) Any documents prepared by Yankees or provided to Client's advisors, at
Client's request, on existing forms will be subject to a $50 per page
initial licensing fee augmented by the time spent in personalizing the
subject form.
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(B) Notwithstanding the provisions of Section 1.4(a) above, during the first
365 days of this Agreement (the "Initial Term"), Yankees will accept and
Client will pay to Yankees:
(1) Options (the "Class A Options") to purchase shares of Client's
outstanding or reserved common stock (all reserved common stock being
treated as outstanding for purposes of such calculation), on the
following terms (the"Stock Signing Fee."):
(a) The quantity of Client common stock subject to the Class A
Options shall be equal to 10% of Client's outstanding or reserved
common stock, immediately following complete exercise of all the
Class A Options;
(b) The Class A Option term will commence on the 60th day after
execution of this Agreement and will terminate at the close of
business on the 45th business day after the Class A Options and
the shares of common stock into which they can be exercised are
registered for sale to the public under applicable federal and
state securities laws, however, Yankees shall have the option of
exercising the Class A Options prior to such registration at a
50% discount from the otherwise applicable exercise price,
subject to the resale restrictions imposed by SEC Rule 144, but
subject to the piggy back and registration provisions, as
reflected in the form of warrant agreement annexed hereto and
made a part hereof as composite exhibit 1.4(B), which form shall
constitute the basis for and terms of the Class A Options, other
than as specifically modified hereby.
(c) The exercise price of the Class A Options will be based on the
number of shares outstanding at the time of exercise, pro rated
in accordance with the following formula: in the event that an
aggregate of 6,000,000 shares of capital stock are outstanding or
reserved for future issuance under reasonably definable terms
(e.g. options, warrants, pending acquisitions, obligations under
employment agreements, etc.), then the number of shares
purchasable would be 600,000 and the exercise price would be
$0.10 per share, any increase or decrease in the outstanding and
reserved shares resulting in a corresponding adjustment to the
Class A Option exercise quantity and price;
(d) Yankees shall have the right to cashless exercise of the options,
as reflected in the form of warrant agreement annexed hereto and
made a part hereof as composite exhibit 1.4(B).
(2) If, for any reason (other than a stock split also affecting Yankees's
shares issued as the Stock Signing Fee) Client's outstanding
securities exceed those contemplated as the basis for determining the
Class A Option exercise prices within 12 months following the end of
the exercise term, then additional shares in an amount to such
difference on a pro rated basis (based on the options exercised) shall
be issued to Yankees.
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(3) The foregoing compensation is in lieu of document license fees and of
required cash payments for up to an aggregate of 200 hours of
Yankees's hourly fees during the initial six month term of this
Agreement (but not those of its associated entities), and, for tax
purposes, shall be valued at an aggregate of $20,000.
(4) Client has been informed that a portion of the Stock Signing Fee will
be transferred by Yankees to third party independent consultants who
will assist Yankees in the performance of its duties hereunder.
(5) The Class A Options may be exercised, in whole or in part, there being
no minimum exercise requirements.
(C) In addition to the compensation described above with reference to services
during the Initial Term of this Agreement and whether or not the following
services are rendered during such Initial Term:
(1) In the event that Yankees arranges or provides funding for Client on
terms more beneficial than those reflected in Client's current
principal financing agreements, copies of which are included among
Client's records available through the SEC's ▇▇▇▇▇ web site, the
subject Consultant shall be entitled, at its election, to either:
(a) A fee equal to 25% of such savings, on a continuing basis; or
(b) If equity funding is provided though Yankees or any affiliates
thereof, a discount of 10% from the bid price for the subject
equity securities, if they are issuable as free trading
securities, or, a discount of 50% from the bid price for the
subject equity securities, if they are issuable as restricted
securities (as the term restricted is used for purposes of SEC
Rule 144); and
(2) In the event that Yankees generates business for Client, then, on any
sales resulting therefrom, Yankees shall be entitled to a commission
equal to 10% of the gross income derived by Client therefrom, on a
continuing basis.
(3) In the event that Yankees or any affiliate thereof arranges for an
acquisition by Client, then Yankees shall be entitled to compensation
equal to 10% of the compensation paid for such acquisition, in
addition to any compensation negotiated and received from the acquired
entity or its affiliates.
(4) In addition to all other compensation reflected in this Agreement,
Client shall, on and after the 365 day period following execution of
this Agreement, pay to Yankees the sum of $5,000 per month, on or
before the monthly anniversary date of this Agreement, throughout the
balance of this Agreement or any renewals thereof, the first such
payment to be tendered by Client on or before the 395th day following
execution of this Agreement (the "Cash Consulting Fee"); provided,
however, that at Client option, it may apply such payments to exercise
of the Class A Options, whereupon Client shall issue to Yankees the
quantity of common stock called for pursuant to the foregoing Class A
Option exercise provisions.
(D) Client will assure that its legal counsel promptly prepares all reports
which then existing holders of Client's securities (including Yankees, its
affiliates and successors in interest) are required to file with the
Securities and Exchange Commission as a result of Client's reporting
status, including Securities and Exchange Commission Forms 3, 4 and 5,
Schedules 13(d) and Schedules 13(g), and shall submit all such reports to
the subject stockholders for prompt execution and timely filing with the
Securities and Exchange Commission.
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(E) (1) In addition to payment of fees, Client will be responsible for payment
of all costs and disbursements associated with Yankees's services either:
(a) Involving less than $50 per item and $200 in the aggregate during
the preceding 30 day period; or
(b) Reflected in an operating budget approved by Client; or
(c) Approved in writing by Client; provided, however, that the
refusal by Client to approve expenditures required for the proper
performance of Yankees's services will excuse performance of such
services.
(2) All of Yankees's statements will be paid within 10 days after receipt.
(3) In the event additional time for payment is required, Yankees will
have the option of selling the account receivable and Client agrees to
pay interest thereon at the monthly rate of 1%.
(4) In the event collection activities are required, Client agrees to pay
all of Yankees's out of pocket costs associated therewith.
(5) There will be no change or waiver of the provisions contained herein,
unless such charge is in writing and signed by Client and Yankees.
1.5 Client's Commitments
(A) (1) All work requiring legal review will be submitted for approval by
Client to Client's legal counsel prior to its use.
(2) Final drafts of any matters prepared for use by Yankees in conjunction
with the provision of the Services will be reviewed by Client and, if
legally required, by Client's legal counsel, to assure that:
(a) All required information has been provided;
(b) All materials are presented accurately; and,
(c) That no materials required to render information provided "not
misleading" are omitted.
(2) Only after such review and approval by Client and, if required,
Client's legal counsel, will any documents be filed with regulatory
agencies or provided to Yankees or third parties.
(3) (a) Financial data will be reviewed by competent, independent,
certified public accountants to be separately retained by Client.
(b) Such accountants will be required to review and approve all
financially related filings, prior to release to Yankees, other
third parties or submission to the appropriate regulatory
authorities.
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(B) (1) Client shall supply Yankees on a regular and timely basis with all
approved data and information about Client, its management, its
products, and its operations and Client shall be responsible for
advising Yankees of any fact which would affect the accuracy of any
prior data and information supplied to Yankees.
(2) Client shall use its best efforts to promptly supply Yankees with full
and complete copies of all filings with all federal and state
securities agencies; with full and complete copies of all shareholder
reports and communications whether or not prepared with Yankees's
assistance, with all data and information supplied to any analyst,
broker-dealer, market maker, or other member of the financial
community; and with all product/services brochures, sales materials,
etc.
(3) Client shall promptly notify Yankees of the filing of any registration
statement for the sale of securities and/or of any other event which
triggers any restrictions on publicity.
(4) Client shall be deemed to make a continuing representation of the
accuracy of any and all material facts, material, information, and
data which it supplies to Yankees and Client acknowledges its
awareness that Yankees will rely on such continuing representation in
performing its functions under this Agreement.
(5) Yankees, in the absence of notice in writing from Client, may rely on
the continuing accuracy of material, information and data supplied by
Client.
ARTICLE TWO
TERM, RENEWALS & EARLIER TERMINATION
2.1 Term.
This Agreement shall be for an initial term of 730 days, commencing on the
date of its complete execution by all Parties, as evinced in the execution page
hereof (the "Initial Term").
2.2 Renewals.
This Agreement shall be renewed automatically, after expiration of the
original term, on a continuing annual basis, unless the Party wishing not to
renew this Agreement provides the other Party with written notice of its
election not to renew ("Termination Election Notice") on or before the 30th day
prior to termination of the then current term.
2.3 Final Settlement.
(A) Upon termination of this Agreement and payment to Yankees of all amounts
due it hereunder, Yankees or its representative shall execute and deliver
to Client a receipt for such sums and a release of all claims, except such
claims as may have been submitted pursuant to the terms of this Agreement
and which remain unpaid, and, shall forthwith tender to Client all records,
manuals and written procedures, as may be desired by Client for the
continued conduct of its business; and
(B) Client or its representative shall execute and deliver to Yankees a receipt
for all materials returned and a release of all claims, except such claims
as may have been submitted pursuant to the terms of this Agreement and
which remain unpaid, and, shall forthwith tender to Yankees all records,
manuals and written procedures, as may be desired by Yankees for the
continued conduct of its business.
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ARTICLE THREE
CONSULTANT'S CONFIDENTIALITY & COMPETITION COVENANTS
3.1 General Provisions.
(A) Yankees acknowledges that, in and as a result of its entry into this
Agreement, it will be making use of confidential information of special and
unique nature and value relating to such matters as Client's trade secrets,
systems, procedures, manuals, confidential reports; consequently, as
material inducement to the entry into this Agreement by Client, Yankees
hereby covenants and agrees that it shall not, at anytime during the term
of this Agreement, any renewals thereof and for two years following the
terms of this Agreement, directly or indirectly, use, divulge or disclose,
for any purpose whatsoever, any of such confidential information which has
been obtained by or disclosed to it as a result of its entry into this
Agreement or provision of services hereunder.
(B) In the event of a breach or threatened breach by Yankees of any of the
provisions of this Article Three, Client, in addition to and not in
limitation of any other rights, remedies or damages available to Client,
whether at law or in equity, shall be entitled to a permanent injunction in
order to prevent or to restrain any such breach by such Consultant, or by
its partners, directors, officers, stockholders, agents, representatives,
servants, employers, employees, affiliates and/or any and all persons
directly or indirectly acting for or with it.
3.2 Special Remedies.
In view of the irreparable harm and damage which would undoubtedly occur to
Client and its clients as a result of a breach by Yankees of the covenants or
agreements contained in this Article Three, and in view of the lack of an
adequate remedy at law to protect Client's interests, Yankees hereby covenants
and agrees that Client shall have the following additional rights and remedies
in the event of a breach hereof:
(A) Yankees hereby consents to the issuance of a permanent injunction enjoining
it from any violations of the covenants set forth in this Article Three;
and
(B) Because it is impossible to ascertain or estimate the entire or exact cost,
damage or injury which Client or its clients may sustain prior to the
effective enforcement of such injunction, Yankees hereby covenants and
agrees to pay over to Client, in the event it violates the covenants and
agreements contained in this Article Three, the greater of:
(1) Any payment or compensation of any kind received by it because of such
violation before the issuance of such injunction, or
(2) The sum of One Thousand Dollars per violation, which sum shall be
liquidated damages, and not a penalty, for the injuries suffered by
Client or its clients as a result of such violation, the Parties
hereto agreeing that such liquidated damages are not intended as the
exclusive remedy available to Client for any breach of the covenants
and agreements contained in this Article Three, prior to the issuance
of such injunction, the Parties recognizing that the only adequate
remedy to protect Client and its clients from the injury caused by
such breaches would be injunctive relief.
3.3 Cumulative Remedies.
Yankees hereby irrevocably agrees that the remedies described in this
Article Three shall be in addition to, and not in limitation of, any of the
rights or remedies to which Client and its clients are or may be entitled to,
whether at law or in equity, under or pursuant to this Agreement.
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3.4 Acknowledgment of Reasonableness.
(A) Yankees hereby represents, warrants and acknowledges that its members or
officers and directors have carefully read and considered the provisions of
this Article Three and, having done so, agrees that the restrictions set
forth herein are fair and reasonable and are reasonably required for the
protection of the interests of Client, its members, officers, directors,
consultants, agents and employees; consequently, in the event that any of
the above-described restrictions shall be held unenforceable by any court
of competent jurisdiction, Yankees hereby covenants, agrees and directs
such court to substitute a reasonable judicially enforceable limitation in
place of any limitation deemed unenforceable and, Yankees hereby covenants
and agrees that if so modified, the covenants contained in this Article
Three shall be as fully enforceable as if they had been set forth herein
directly by the Parties.
(B) In determining the nature of this limitation, Yankees hereby
acknowledges, covenants and agrees that it is the intent of the
Parties that a court adjudicating a dispute arising hereunder
recognize that the Parties desire that these covenants not to compete
or circumvent be imposed and maintained to the greatest extent
possible.
3.5 Exclusivity.
Yankees shall not be required to devote all of its business time to the
affairs of Client, rather it shall devote such time as it is reasonably
necessary in light of its other business commitments.
ARTICLE FOUR
Client' CONFIDENTIALITY & COMPETITION COVENANTS
4.1 General Prohibitions
(A) Client acknowledges that, in and as a result of its engagement of Yankees,
Client will be making use of confidential information of special and unique
nature and value relating to such matters as Yankees's business contacts,
professional advisors, trade secrets, systems, procedures, manuals,
confidential reports, lists of clients, potential customers and funders;
consequently, as material inducement to the entry into this Agreement by
Yankees, Client hereby covenants and agrees that it shall not, at anytime
during the term of this Agreement, any renewals thereof an for two years
following the terms of this Agreement, directly or indirectly, use, divulge
or disclose, for any purpose whatsoever, any of such confidential
information which has been obtained by or disclosed to it as a result of
its employment of Yankees, or Yankees's affiliates.
(B) In the event of a breach or threatened breach by Client of any of the
provisions of this Article Four, Yankees, in addition to and not in
limitation of any other rights, remedies or damages available to Yankees,
whether at law or in equity, shall be entitled to a permanent injunction in
order to prevent or to restrain any such breach by Client, or by Client's
partners, directors, officers, stockholders, agents, representatives,
servants, employers, employees, affiliates and/or any and all persons
directly or indirectly acting for or with it.
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4.2 Special Remedies.
In view of the irreparable harm and damage which would undoubtedly occur to
Yankees as a result of a breach by Client of the covenants or agreements
contained in this Article Four, and in view of the lack of an adequate remedy at
law to protect Yankees's interests, Client hereby covenants and agrees that
Yankees shall have the following additional rights and remedies in the event of
a breach hereof:
(A) Client hereby consents to the issuance of a permanent injunction enjoining
it from any violations of the covenants set forth in this Article Four is
and
(B) Because it is impossible to ascertain or estimate the entire or exact cost,
damage or injury which Yankees may sustain prior to the effective
enforcement of such injunction, Client hereby covenants and agrees to pay
over to Yankees, in the event it violates the covenants and agreements
contained in this Article Four, the greater of:
(1) Any payment or compensation of any kind received by it because of such
violation before the issuance of such injunction, or
(2) The sum of One Thousand Dollars per violation, which sum shall be
liquidated damages, and not a penalty, for the injuries suffered by
Yankees as a result of such violation, the Parties hereto agreeing
that such liquidated damages are not intended as the exclusive remedy
available to Yankees for any breach of the covenants and agreements
contained in this Article Four, prior to the issuance of such
injunction, the Parties recognizing that the only adequate remedy to
protect Yankees from the injury caused by such breaches would be
injunctive relief.
4.3 Cumulative Remedies.
Client hereby irrevocably agrees that the remedies described in this Article
Four shall be in addition to, and not in limitation of, any of the rights or
remedies to which Yankees is or may be entitled to, whether at law or in equity,
under or pursuant to this Agreement.
4.4 Acknowledgment of Reasonableness.
(A) Client hereby represents, warrants and acknowledges that its officers and
directors have carefully read and considered the provisions of this Article
Four and, having done so, agree that the restrictions set forth herein are
fair and reasonable and are reasonably required for the protection of the
interests of Yankees, its members, officers, directors, consultants, agents
and employees; consequently, in the event that any of the above-described
restrictions shall be held unenforceable by any court of competent
jurisdiction, Client hereby covenants, agrees and directs such court to
substitute a reasonable judicially enforceable limitation in place of any
limitation deemed unenforceable and, Client hereby covenants and agrees
that if so modified, the covenants contained in this Article Four shall be
as fully enforceable as if they had been set forth herein directly by the
Parties.
(B) In determining the nature of this limitation, Client hereby acknowledges,
covenants and agrees that it is the intent of the Parties that a court
adjudicating a dispute hereunder recognize that the Parties desire that
these covenants not to compete or circumvent be imposed and maintained to
the greatest extent possible.
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ARTICLE FIVE
MISCELLANEOUS
5.1 Notices.
All notices, demands or other written communications hereunder shall be in
writing, and unless otherwise provided, shall be deemed to have been duly given
on the first business day after mailing by United States registered or certified
mail, return receipt requested, postage prepaid, addressed as follows:
To Yankees:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇; Boca Raton, Florida 3418
Telephone (▇▇▇) ▇▇▇-▇▇▇▇; Fax (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, President
and
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇; ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Telephone (352)
▇▇▇-▇▇▇▇; Fax (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chief Administrative Officer
To Client:
Equity Growth Systems, inc.
At such address, telephone and fax numbers
as are reflected on the SEC's ▇▇▇▇▇ Internet site;
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President & Chief Executive Officer
in each case, with copies to such other address or to such other persons as any
Party shall designate to the others for such purposes in the manner hereinabove
set forth.
5.2 Amendment.
No modification, waiver, amendment, discharge or change of this Agreement
shall be valid unless the same is in writing and signed by Parties.
5.3 Merger.
(A) This instrument, together with the instruments referred to herein, contains
all of the understandings and agreements of the Parties with respect to the
subject matter discussed herein.
(B) All prior agreements whether written or oral are merged herein and shall be
of no force or effect.
5.4 Survival.
The several representations, warranties and covenants of the Parties
contained herein shall survive the execution hereof and shall be effective
regardless of any investigation that may have been made or may be made by or on
behalf of any Party.
5.5 Severability.
If any provision or any portion of any provision of this Agreement, other
than a conditions precedent, if any, or the application of such provision or any
portion thereof to any person or circumstance shall be held invalid or
unenforceable, the remaining portions of such provision and the remaining
provisions of this Agreement or the application of such provision or portion of
such provision as is held invalid or unenforceable to persons or circumstances
other than those to which it is held invalid or unenforceable, shall not be
affected thereby.
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5.6 Governing Law and Venue.
This Agreement shall be construed in accordance with the laws of the State
of Florida and any proceeding arising between the Parties in any matter
pertaining or related to this Agreement shall, to the extent permitted by law,
be held in Palm Beach County, Florida.
5.7 Dispute Resolution in lieu of Litigation.
(A) In the event of any dispute arising under this Agreement, or the
negotiation thereof or inducements to enter into the Agreement, the dispute
shall, at the request of any Party, be exclusively resolved through the
following procedures:
(1) (a) First, the issue shall be submitted to mediation before a
mediation service in Palm Beach County, Florida to be selected by
lot from six alternatives to be provided, three by Yankees and
three by Client.
(b) The mediation efforts shall be concluded within ten business days
after their initiation unless the Parties unanimously agree to an
extended mediation period;
(2) In the event that mediation does not lead to a resolution of the
dispute then at the request of any Party, the Parties shall submit the
dispute to binding arbitration before an arbitration service located
in Palm Beach County, Florida, to be selected by lot, from six
alternatives to be provided, in the manner set forth above for
selection of a mediator;
(3) (A) Expenses of mediation shall be borne by the Parties equally if
successful but if unsuccessful, expenses of mediation and of
arbitration shall be borne by the Party or Parties against whom
the arbitration decision is rendered.
(B) If the terms of the arbitral award do not establish a prevailing
Party, then the expenses of unsuccessful mediation and
arbitration shall be borne by Client and by Yankees.
(B) Judgment upon the award rendered by the arbitrator(s) may be entered in any
court having jurisdiction thereof.
(C) In any action between the Parties to enforce any of the terms of this
Agreement or any other matter arising from this Agreement, the prevailing
Party shall be entitled to recover its costs and expenses, including
reasonable attorneys' fees up to and including all negotiations, trials and
appeals, whether or not litigation is initiated.
5.8 Benefit of Agreement.
The terms and provisions of this Agreement shall be binding upon and inure
to the benefit of the Parties, jointly and severally, their successors, assigns,
personal representatives, estate, heirs and legatees.
5.9 Captions.
The captions in this Agreement are for convenience and reference only and in
no way define, describe, extend or limit the scope of this Agreement or the
intent of any provisions hereof.
5.10 Number and Gender.
All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular or plural, as the identity of the Party or
Parties, or their personal representatives, successors and assigns may require.
5.11 Further Assurances.
The Parties hereby agree to do, execute, acknowledge and deliver or cause to
be done, executed, acknowledged or delivered and to perform all such acts and
deliver all such deeds, assignments, transfers, conveyances, powers of attorney,
assurances, stock certificates and other documents, as may, from time to time,
be required herein to effect the intent and purpose of this Agreement.
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5.12 Status.
(A) Nothing in this Agreement shall be construed or shall constitute a
partnership, joint venture, employer-employee relationship, lessor-lessee
relationship, or principal-agent relationship.
(B) Throughout the term of this Agreement, Yankees shall serve an independent
contractor, as that term is defined by the United States Internal Revenue
Service, and in conjunction therewith, shall be responsible for all of his
own tax reporting and payment obligations.
(C) In amplification of the foregoing, Yankees shall, subject to reasonable
reimbursement on a pre-approved budgetary basis, be responsible for
providing its own office facilities and supporting personnel.
5.13 Counterparts.
(A) This Agreement may be executed in any number of counterparts delivered
through facsimile transmission.
(B) All executed counterparts shall constitute one Agreement notwithstanding
that all signatories are not signatories to the original or the same
counterpart.
5.14 License.
(A) (1) This Agreement is the property of Yankees.
(2) The use hereof by the Parties is authorized hereby solely for purposes
of this transaction and, the use of this form of agreement or of any
derivation thereof without Yankees' prior written permission is
prohibited. (3) This Agreement shall not be construed more stringently
or interpreted less favorably against Yankees' based on authorship.
(B) Each of the Parties hereby acknowledge that Yankees is not a law firm and
has not provided it with any advice, legal or otherwise, in conjunction
with this Agreement, but rather, has suggested that it rely solely on its
own experience and advisors in evaluating or interpreting this Agreement.
In Witness Whereof, the Parties have executed this Agreement, effective as
of the last date set forth below.
Signed, Sealed & Delivered
In Our Presence
Equity Growth Systems, inc.
By: /s ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Dated: November 16, 1998
The Yankee Companies, Inc.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, President
Dated: November 24, 1998
16