U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 10-QSB
[X] QUARTERLY REPORT UNDER SECTION 13 OR 15 (d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the quarterly period ended September 30, 2000
or
[ ] TRANSITION REPORT UNDER SECTION 13 OR 15 (d) OF THE EXCHANGE ACT OF 1934
For the transition period from to
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Commission file number: 0001058307
SWIFTYNET.COM, INC.
(Exact Name of Small Business Issuer in Its Charter)
Florida 65-078-3722
(State or other jurisdiction of (I.R.S. Employer Identi-
incorporation or organization) fication No.)
201 East Kennedy Boulevard, Suite 520, Tampa, Florida 33602
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (813) 221-1387
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Check whether the issuer:(1) filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the past 12 months (or for such
shorter period that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days. Yes X No
The number of shares of the registrant's common stock, par value $.0001 per
share, outstanding as of November 10, 2000 was 13,161,100.
Table of Contents to Form 10QSB
Part I - Financial Information Page
Item 1. Financial Statements (unaudited)
Balance Sheet September 30, 2000....................................4
Statements of Operations - Nine Months
Ended September 30, 1999 and September 30, 2000 ...................5
Statements of Cash Flows - Nine Months
Ended September 30, 1999 and September 30, 2000.....................6
Notes to Financial Statements.......................................8
Item 2. Management's Discussion and Analysis or Plan of Operation..........11
Part II - Other Information
Item 2. Changes in Securities and Use of Proceeds..........................12
Item 6. Exhibits and Reports on Form 8-K...................................13
Signatures..................................................................14
2
Item 1. Financial Statements
SWIFTYNET.COM, INC.
FINANCIAL STATEMENTS
SEPTEMBER 30, 2000
The accompany notes are an integral part of the financial statements.
SWIFTYNET.COM, INC.
BALANCE SHEET
September 30, 2000
(unaudited)
ASSETS
Current assets
Cash and cash equivalents $ 45,921
Prepaid expenses 8,985
Due from stockholder 137,416
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Total current assets 192,322
Property and equipment
Equipment 16,062
Software 216,755
232,817
Less: Accumulated depreciation 45,710
---------------------
Total property and equipment 187,107
Other assets
Goodwill, net 2,213,243
Deposits 30,000
Total other assets 2,243,243
---------------------
Total Assets $ 2,622,672
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities
Accounts payable and accrued expenses $ 32,506
Current maturities of note payable 4,000
---------------------
Total current liabilities 36,506
Other liabilities
Note payable 12,074
Stockholders' equity
Common stock; $.0001 par value; 50,000,000 shares
authorized; 13,430,100 shares issued and outstanding 1,343
Paid in capital 5,844,412
Accumulated deficit (3,271,663)
Total stockholders' equity 2,574,092
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Total Liabilities and Stockholders' Equity $ 2,622,672
SWIFTYNET.COM, INC.
STATEMENTS OF OPERATIONS
Three-Months Ended Nine-Months Ended
September 30, September 30,
2000 1999 2000 1999
(unaudited) (unaudited) (unaudited) (unaudited)
Revenues
Operating revenues $ - $ - $ - $ -
Interest income 1,999 28 4,216 3,622
--------------- 28
Total revenues 1,999 4,216 3,622
Expenses
Operational costs 29,158 - 58,592 -
Depreciation and amortization 146,084 - 378,518 -
Other general and administrative 616,456 10,599 1,040,599 99,025
Interest expense 3,424 - 4,084 -
Total expenses 795,122 10,599 1,481,793 99,025
--------------- (10,571)
Loss from continuing operations (793,123) (1,477,577) (95,403)
Discontinued operations
Income (loss) from discontinued carwash and
quick-lube operations - (86,107) (55,796) (266,967)
Loss on disposal of property, equipment and
related assets - - (350,000) -
---------------
Loss from discontinued operations - (86,107) (405,796) (266,967)
--------------- ---------------
Net loss $ (793,123) $ (96,678) $ (1,883,373) $ (362,370)
Loss per common share
From continuing operations $ (.06) $ - $ (.13) $ (.01)
Discontinued operations:
Loss from operations - (.01) - (.03)
Loss on disposal - - (.03) -
--------------- ---------------- --------------- ----------------
Total loss per share $ (.06) $ (.01) $ (.16) $ (.04)
Weighted average common shares outstanding 12,776,389 8,604,120 11,844,231 8,527,930
SWIFTYNET.COM, INC.
STATEMENTS OF CASH FLOWS
Nine-Months Ended
September 30,
2000 1999
(unaudited) (unaudited)
Cash flows from operating activities
Net loss $ (1,883,373) $ (362,370)
Adjustments to reconcile net loss to
net cash used in operating activities:
Stock issued for services 805,920 -
Contributed services 32,500 38,750
Depreciation and amortization 393,890 160,285
Loss from disposal of assets from discontinued operations 350,000 -
Decrease in prepaid expenses 16,015 -
Increase in interest receivable - (3,139)
Increase in inventory - (5,413)
(Decrease) increase in accounts payable and accrued expenses 14,974 (34,781)
---------------
Total adjustments 1,613,299 155,702
---------------
Net cash used in operating activities (270,074) (206,668)
Cash flows from investing activities
Acquisition of property and equipment (5,187) (10,545)
Decrease in deposits and other assets 2,600 550
Net proceeds from sale of discontinued business segment 223,071 -
---------------
Net cash provided by (used in) investing activities 220,484 (9,995)
Cash flows from financing activities
Payments on notes payable (16,307) (56,560)
Net proceeds from issuance of stock 236,274 200,000
Net advances from (to) stockholder (162,082) 42,037
Net cash provided by financing activities 57,885 185,477
---------------
Net increase (decrease) in cash and cash equivalents 8,295 (31,186)
Cash and cash equivalents, beginning of period 37,626 70,686
---------------
Cash and cash equivalents, end of period $ 45,921 $ 39,500
SWIFTYNET.COM, INC.
STATEMENTS OF CASH FLOWS
(Continued)
Supplemental disclosures of noncash investing and financing activities:
The Company issued 1,235,000 shares of stock for goodwill and capitalized
software valued at $1,206,250 during the nine months ended September 30, 2000.
The Company issued 932,000 shares of stock for consulting services valued
at $805,920 during the nine months ended September 30, 2000.
In March 1999, the Company issued 10,000 shares of common stock due under a
consulting contract executed in 1998 valued at $62,500.
Supplemental disclosure of cash flow information:
The Company paid approximately $33,700 and $51,000 in interest for the nine
months ended September 30, 2000 and 1999, respectively.
SWIFTYNET.COM, INC.
NOTES TO FINANCIAL STATEMENTS
SEPTEMBER 30, 2000
The information presented herein as of September 30, 2000, and for the
three and nine-months ended September 30, 2000 and 1999, is unaudited.
(1) Basis of Presentation:
The accompanying financial statements of SwiftyNet.com, Inc. (the Company)
have been prepared in accordance with generally accepted accounting principles
for interim financial information and with the instructions to Form 10-QSB and
item 310(b) of Regulation S-B. Accordingly, they do not include all of the
information and footnotes required by generally accepted accounting principles
for complete financial statements. In the opinion of management, all adjustments
(consisting of normal required adjustments) considered necessary for a fair
presentation have been included.
Operating results for the three and nine-month periods ended September 30,
2000, are not necessarily indicative of the results that may be expected for the
year ending December 31, 2000. For further information, refer to the financial
statements and footnotes included in the Company's annual report of Form 10-KSB
for the year ended December 31, 1999.
(2) Business Acquisition:
On December 17, 1999, the Company purchased all the outstanding stock of
Rankstreet.com, Inc., a development stage enterprise. The Company issued
2,000,000 shares of common stock. The 2,000,000 shares are subject to
cancellation if the Rankstreet.com web site is not functional and available for
interactive customer usage by November 17, 2000. In addition, the Company will
issue an additional 1,000,000 shares at which time the Rankstreet.com web site
is fully functional and available for interactive customer usage. The Company
will issue an additional 1,000,000 shares one year from the date the
Rankstreet.com web site is advertised for use by the general public. These
contingent shares will be recorded when the outcome of the event is determinable
beyond a reasonable doubt.
As of June 30, 2000, it was determined the Rankstreet.com web site was
fully functional and available for interactive customer use and the additional
1,000,000 shares were issued. The Company recorded the issuance at $1,000,000,
the current market value attributed to the 1,000,000 shares less a 50% discount
because the shares are unregistered and are a significant block of stock for the
Company. The Company capitalized the $1,000,000 value as goodwill, which is
being amortized over five years, its estimated useful life. The Company recorded
$334,167 of amortization expense for the nine-months ended September 30, 2000.
In addition, the selling Rankstreet.com shareholders were each issued an
option to purchase as a group 51% of Rankstreet's outstanding common stock for
$75,000 as of a date 30 days following a successful initial public offering of
Rankstreet.com, Inc. securities.
Rankstreet.com has no significant results of operations either prior or
subsequent to its acquisition.
The value of the remaining 1,000,000 shares will be recorded when their
issuance is assured.
(3) Stock Sales:
During 2000, the Company sold shares totaling 305,980 at prices ranging
from $0.75 to $1.00 per share. Total proceeds of $236,274 were received from
these sales. Certain shares were sold with warrants totaling 255,980. See Note 5
for the exercise price and termination dates of warrants.
(4) Commitments, Contingencies and Related Party Transactions:
The President and Operations Manager performed services for the Company at
no cost. The Board of Directors valued these services at $32,500 and $37,750 for
the nine-months ended September 30, 2000 and 1999, respectively and recorded
this amount as an expense and an increase in additional paid-in capital in the
accompanying financial statements. The Operations Manager has an employment
contract through March 2001, with a minimum salary of $25,000 per year.
In connection with the acquisition of Rankstreet.com, Inc. the Company
entered into employee agreements with two individuals for a period ending
November 19, 2001. These agreements are automatically renewable for an
additional two year period unless canceled by written notice by either party.
The terms of these agreements call for the payment of a base salary to be
determined by the Board of Directors of Rankstreet.com, Inc. plus a percentage
of pre-tax profit or revenue. The Board of Directors has not determined the
amount of base pay. In the event that the Company terminates these employees,
the Company shall pay an amount equal to 100% of the employee's base salary for
the remainder of the agreement or a period of two years, whichever is less. No
amounts were due at September 30, 2000 under these agreements.
Certain shareholders owed the Company $137,416 at September 30, 2000.
In November 1998, the company entered into a consulting contract with a
stockholder. The contract calls for annual compensation of $72,500 for a period
of three years. During 1999, this contract was amended to allow the consultant
to provide services on an as needed basis for a negotiated amount rather than a
stated amount. During June 2000, the Company issued 67,000 shares of common
stock to the consultant and recorded $61,744 in expense, the current market
value attributed to the 67,000 shares less a 50% discount because the shares are
unregistered.
The above related party agreements are not necessarily indicative of the
agreements that would have been entered into by independent parties.
During the nine months ended September 30, 2000, the Company issued 235,000
shares of common stock to consultants for website design services. The
transactions were valued at $206,250, the current market value attributed to the
235,000 shares less a 50% discount because the shares are unregistered. The
Company capitalized the $206,250 as software.
During the nine months ended September 30, 2000, the Company issued 840,000
shares of common stock to certain consultants for services. The transactions
were valued at $726,926, the current market value attributed to the 840,000
shares less a 50% discount because the shares are unregistered. The Company
expensed the $726,926.
During 1998, the Company entered into an agreement for use of a private
suite at the Raymond James Stadium for the 1998 through 2003 football seasons.
Included in deposits at September 30, 2000 is a $30,000 deposit in accordance
with the terms of this agreement. The Company incurred an expense of $24,045 and
$22,500 for the nine-months ended September 30, 2000 and 1999, respectively. The
Company is committed under this agreement for an annual fee of $30,000 through
2003.
(4) Commitments, Contingencies and Related Party Transactions: (Continued)
During 1998, the Company entered into a three-year advertising, promotion
and publicity agreement and recorded a prepaid expense of $270,400. Each year,
the Company reduces this prepaid asset in amounts equal to the greater of the
actual costs incurred under the agreement or an amount equal to the amortization
of the initial amount over the three year term using the straight line method.
The Company expensed $17,400 and $67,600 for the nine-months ended September 30,
2000 and 1999, respectively. This amount was fully amortized at March 31, 2000.
On July 31, 2000, the Company entered into a one-year consulting agreement
whereby services provided are compensated through the issuance of 25,000 shares
of unregistered stock each quarter beginning August 1, 2000. The agreement is
cancelable with 30 days notice. As of September 30, 2000, the Company issued
25,000 shares under the agreement. The Company expensed $17,250, the current
market value less a 50% discount because the shares are unregistered.
(5) Warrants:
At September 30, 2000, the Company had outstanding exercisable warrants to
purchase 318,240 shares of the Company's common stock at $7.50 per share. The
warrants expire in 2002.
At September 30, 2000, the Company also had exercisable warrants to
purchase 6,980 shares of the Company's common stock at $7.25 per share. The
warrants expire in 2002.
At September 30, 2000, the Company had outstanding exercisable warrants to
purchase 249,000 shares of the Company's common stock at various prices based
upon expiration dates. Warrants expiring in 2001, 2002 and 2003, are exercisable
at $3.00, $5.00 and $7.00, respectively.
Prior to expiration, the warrants may be redeemed by the Company at a price
of $.01. As of September 30, 2000 no warrants have been redeemed.
(6) Net Loss Per Common Share:
Net loss per common share is computed in accordance with the requirements
of Statement of Financial Accounting Standards No. 128 (SFAS 128). SFAS 128
requires net loss per share information to be computed using a simple weighted
average of common shares outstanding during the periods presented. In computing
diluted loss per share, warrants exercisable into common shares were excluded
because the effect is antidilutive.
(7) Discontinued Operations:
On April 19, 2000, the Company sold or disposed of 100% of the assets and
liabilities of its carwash and quick-lube segment. The sale price was $1,000,000
and the Company received approximately $223,000 after selling expenses and
payment of related mortgages. The results of operations for the periods
presented are reported as a component of discontinued operations in the
statements of operations. Additionally, the loss incurred on the sale of the
operations is also presented separately as a component of discontinued
operations.
(7) Discontinued Operations: (Continued)
Summarized results of carwash and quick-lube operations for the three and
nine-month periods ended September 30, 2000 and 1999 are as
follows:
Three-Months Ended Nine-Months Ended
September 30, September 30,
2000 1999 2000 1999
Net sales $ - $ 33,847 $ 82,191 $ 119,054
Operating income (loss) $ - $ (86,107) $ (55,796) $ (266,967)
Income (loss) from discontinued
operations $ - $ (86,107) $ (55,796) $ (266,967)
Item 2. Management's Discussion and Analysis or Plan of Operations.
PLAN OF OPERATION
In April, 2000, the Company sold its car wash and quick lube shop (the
Center) to allow the Company to focus its efforts entirely on its internet
business. The Company plans to focus all its attentions for the next year on its
subsidiary Rankstreet.com, Inc. and other potential acquisitions of Internet
related companies. The sale of the Center resulted in net cash proceeds of
approximately $223,000 which will provide working capital to further the
development of the Company's internet business. As of September 30, 2000, the
Company had a positive working capital position, but continued to have losses
from continuing operations. The Company's loss from continuing operations for
the nine months ended September 30, 2000 was $1,477,577. Of this amount,
approximately one-third consisted of depreciation and amortization or salaries
contributed to the Company, and one-half consisted of stock issued for services.
Therefore the cash used in continuing operations was approximately $270,000 for
the nine months ended September 30, 2000. The sale of the car wash and quick
lube shop generated approximately $223,000 in cash after the payoff of both
mortgages on the Center. These funds are going to be used to fund operations for
the next year. After the sale of the Center, the Company has one note payable
totaling approximately $17,000 and normal recurring accounts payable.
Additionally, the Company has few fixed general and administrative expenses.
Since inception, two of the Company employees have contributed their salaries to
the Company, reducing cash requirements. The other two current Company employees
are paid from profits only, again limiting cash requirements. Additionally, many
of the Company's consultants have been willing to accept stock for services. The
Company believes that the cash generated from the Center sale, and continuing
stockholder loans as needed, will be sufficient to meet normal operating
requirements.
The Company's expansion plans include the launching and marketing of
Rankstreet.com. In December 1999, the Company acquired all the outstanding stock
of Rankstreet.com, Inc. in a stock for stock transaction that required no cash
outflow. Rankstreet.com launched its Web site in early May 2000. This all-in-one
Web site includes a directory, Web counter and business to business Internet
advertising agency. The primary function of the Web site is to provide
comparative statistical analysis of Internet advertising. The Rankstreet.com
website is now fully functional and operational. Approximately 800 websites are
currently being ranked. The focus is now to sign up additional websites and to
sell advertising on the Rankstreet website. The Company is currently sending out
e-mails to more than 2.3 million Web publishers inviting them to list their site
on Rankstreet.com. This form of marketing will be on going. The Company also is
running a promotion until December 31, 2000 to attract more listings on
Rankstreet.com. The $3 million advertising sweepstakes will give three entrants
$1 million each in advertising space on Rankstreet.com. Additionally the Company
is "banner swapping' with other websites for more exposure. These marketing
activities require minimal amounts of cash. The software development costs to
launch the initial Rankstreet.com web site have been expended as of June 30,
2000. These costs were funded through operations and stock sales in December
1999 and the first quarter of 2000 and through the issuance of stock in the
second quarter of 2000. Additional enhancements to the Web site will take place,
as funds are available. The Company plans to generate revenues from its Web site
in several ways. Revenues will be generated through the sale of banner
advertising, commissions earned from selling advertising for participating web
sites, and consulting related to Internet marketing. The Company will also
design banner ads for advertisers for a fee. The Company is now beginning to
sell advertising.
The Company's expansion plans also include acquiring and developing other
unique Internet companies. The Company entered into a nonbinding letter of
intent on October 31, 2000 to purchase Ion Technologies for cash and stock. Ion
Technologies manufactures and markets computer hardware and software related
products. On October 11, 2000, the Company entered into a one year consulting
agreement with Entertainment Network, Inc./ Netelligent Consulting, Inc. to
assist the Company in the acquisition, development and marketing of Internet
companies, technologies and Web properties. The Company agreed to issue
1,000,000 shares of its common stock with piggyback registration rights to the
consultant upon execution of the contract. The Company does not have any planned
major purchases of property and equipment and does not anticipate any additional
debt financing in 2000. The Company is currently seeking more office space for
expanding operations. This includes the hiring of ad sales professionals, Web
designers, software engineers and administrative personnel. The success and
magnitude of the above described expansion plans are dependent upon the
Company's ability to raise funds. However, the Company plans to pursue its
acquisition plans primarily through the issuance of additional shares of its
common stock.
Part II
Item 2. Changes in Securities and Use of Proceeds
The following common shares and warrants were sold by the company on the
date shown and for the consideration stated in reliance on Section 4(2) of the
Securities Act of 1933 and Regulation D:
Shareholder No. Shares No. Warrants Consideration Date
Jay Youngerman 50,000 $37,500 6/30/2000
Denno Family Limited Partnership 100,000 100,000 $75,000(shares and warrants) 9/17/2000
Leonard Root 20,000 20,000 $15,000(shares and warrants) 9/12/2000
Gary Anderson 20,000 20,000 $15,000(shares and warrants) 10/3/2000
Timothy Minnehan 32,000 32,000 $24,000(shares and warrants) 9/16/2000
Martha G. and John M. Meraviglia, II 7,000 7,000 $ 5,250(shares and warrants) 6/30/2000
John M. Meraviglia, II 7,500 7,500 $ 5,625(shares and warrants) 10/7/2000
Bruce J. Meraviglia 7,500 7,500 $ 5,625(shares and warrants) 10/7/2000
Karen L. Danish 7,500 7,500 $ 5,625(shares and warrants) 10/7/2000
Martha G. Weiland 10,000 10,000 $ 7,500(shares and warrants) 10/31/2000
Laurie Stern 25,000 services 7/31/2000
Harlin Mitaur 10,000 services 8/28/2000
Gigi Pinizzotto 200,000 services 9/18/2000
Mark Daniel White 300,000 services 9/18/2000
Frank Pinizzotto 100,000 services 9/18/2000
Cindy Hepperla 7,500 7,500 $ 5,625(shares and warrants)10/7/2000
Item 6. Exhibits and Reports on Form 8-K
Exhibit Description Number
(2)Plan of Acquisition, Reorganization,
Arrangement, Liquidation or Succession......................................
(3)Articles of Incorporation and By-Laws.....................................
*(3.1)Articles of Incorporation.............................................
**(3.2)By-Laws.............................................. ................
(10)Material Contracts.......................................................
*(10.1)Equipment Purchase Contract..........................................
*(10.2)Construction Contract................................................
*(10.3)Architect Contract...................................................
*(10.4)Consulting Contract-Donald Hughes....................................
*(10.5)Employment Contract-Stanley Rabushka.................. ..............
*(10.6)Promissory Note - Swifty.............................................
*(10.7)Promissory Note - Steele ............................................
*(10.8)Consulting Contract-John Oster ......................................
*(10.9)Raymond Lipsch Contract .............................................
*(10.10)Land Purchase Contract..............................................
**(10.11) Stanley Rabushka Employment and Stock Agreement....................
**(10.12) Tampa Bay Buccaneers Agreement.....................................
***(10.13)Edgar Arvelo Consulting Contract....................................
***(10.14)Richard Kleinberg Employment Contract...............................
***(10.15)Vladimir Rafalovich.................................................
***(10.16)Martinez Consulting Contract........................................
****(10.17)Purchase and Sale Contract between Jim Malak
and/or Assigns and SwiftyNet.com, Inc.
dated April 6, 2000.................................................
+(10.18)Consulting Agreement with Netelligent Consulting
dated October 11, 2000..........................................15
+(10.19)Consulting Agreement with Frank Pinizzotto
dated September 19, 2000........................................17
+(10.20)Consulting Agreement with Gigi Pinizzotto
dated September 19, 2000........................................22
+(10.21)Professional Services Agreement with
Laurie Stern dated July 31, 2000................................27
+(10.22)Consulting Agreement with Mark Daniel White
dated September 19, 2000........................................29
+(11)Statement re: computation of per share earnings...............Note 6 to
Financial
Statements
(15)Letter re: Unaduited Itnerim Financial Information..................None
(16)Letter regarding Changes in Certifying Accountant...................None
(18)Letter on change in accounting principles...........................None
(19)Report Furnished to Security Holders ...............................None
(22)Published report regarding matters submitted to vote................None
(23)Consents of Experts and Counsel.....................................None
(24)Power of Attorney...................................................None
+(27)Financial Data Schedule...............................................15
(99)Additional Exhibits.................................................None
* Previously filed with Form 10-SB on November 23, 1998.
** Previously filed with Form 10-SBA No. 1 on February 2, 1999.
*** Previously filed with Form 10-KSB filed on March 30, 2000.
**** Previously filed with Form 10-QSB filed May 15, 2000.
+ Filed herewith.
13
SIGNATURES
In accordance with the requirements of the Exchange Act, the registrant
caused this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
SWIFTYNET.COM, INC.
Dated: November 13, 2000 By: /s/ Rachel Steele
--------------------------
RACHEL STEELE, President
Secretary
Dated: November 13, 2000 By: /s/ Raymond Lipsch
--------------------------
RAYMOND LIPSCH, Treasurer
Chief Financial Officer
Dated: November 13, 2000 By: /s/ Donald C. Hughes
---------------------------
DONALD C. HUGHES
Vice President, Director
14
CONSULTANT AGREEMENT
This Consulting Agreement executed on October 11, 2000 (the "Agreement") by
and between SwiftyNet. Com, Inc. (the "Company"), a Florida corporation having
its principal place of business at 201 East Kennedy Blvd. Suite 210, Tampa,
Florida, 33602 and Netelligent Consulting, Inc., (the "Consultant") also a
Florida corporation having its principal place of business at 412 East Madison
Street, Tampa, Florida, 33602. Each of the undersigned represents and warrants
that they have the full authority to enter into this agreement on behalf of
their respective Companies and to obligate the Companies to the terms hereof,
and that each has obtained proper authorization of the respective board of
directors of their Companies in connection therewith.
BACKGROUND INFORMATION
The Company wishes to secure the services of the Consultant for a definite
period of time and upon the particular terms and conditions hereinafter set
forth. The Consultant is willing to perform such services on the terms and
conditions hereinafter set forth. Accordingly, the parties agree as follows:
OPERATIVE PROVISIONS
1. Term. The term of this agreement shall be for one year from the date of
the execution hereof, and may be extended from time to time as agreed upon by
the parties.
2. Description of Services. The Consultant shall provide Consulting advice
and services to the Company with the respect to the business of the Company both
present, and proposed including but not limited to advice and services on
mergers and acquisitions, hosting, site development and traffic generation. In
addition, Consultant shall provide such other advise and services as may be
mutually agreed upon between Consultant and the Company. Consultant agrees to
use all reasonable efforts to promote the business of the Company, and to
maximize the Company's profits.
3. Compensation. As full consideration for consulting services provided by
Consultant the Company shall promptly pay to Consultant one million restricted
treasury common shares of SwiftyNet.com upon consultant's execution of this
Agreement. In addition, consultant shall be entitled to have all shares
registered by Company (piggy-back rights) on the first registration statement
filed by the Company subsequent to the execution of this agreement. In addition,
the Company shall cooperate with Consultant in placing one of the Officers or
Directors of Consultant as a director of SwiftyNet.com, as Consultant may
designate.
4. Proprietary Information. During or after the expiration of the terms of
this Consultant Agreement, the Consultant agrees: (i) that it will maintain and
preserve any proprietary information of the Company received by the Consultant
by virtue of such services, including, without limitation, taking such steps to
preserve the confidentiality of the proprietary information as it takes to
preserve the confidentiality of its own confidential information, (ii) that it
will disclose such proprietary information to its own employees on a
"need-to-know" basis only, and only to such employees who have agreed to
maintain the confidentiality thereof; (iii) that it will not disclose such
proprietary information to any third party (including subcontractors and
consultants) without the express written consent of the Company.
5. Miscellaneous Provisions.
a. Enforceability: If any term or condition or this agreement shall be
invalid or unenforceable to any extent or in any application, then the remainder
of this agreement, and such term and condition of this agreement shall be valid
and enforced to the fullest extent and in the broadest application permitted by
law.
b. Notice: All notices or other communications required or permitted to be
given pursuant to this Agreement shall be in writing and shall be made by: (i)
certified mail, return receipt requested; (ii) Federal Express, Express Mail, or
similar overnight delivery or courier service; or (iii) delivery (in person or
by facsimile or similar telecommunication transmission) to the party to whom it
is to be given, to the address appearing elsewhere in this Agreement or to such
other address as any party hereto may have designated by written notice
forwarded to the other party in accordance with the provisions of this Section.
Any notice or other communication given by certified mail shall be deemed given
at the time of certification thereof, except for a notice changing a party's
address which shall be deemed given at the time of receipt thereof. Any notice
given by other means permitted by this Section shall be deemed given at the time
of receipt thereof.
c. Application of Florida Law: This agreement, and the application or
interpretation thereof, shall be governed exclusively by its terms and by the
laws of the State of Florida. Venue shall be deemed located in Hillsborough
County, Florida.
d. Counterparts: This agreement may be executed by any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
e. Binding Effect: Each of the provisions and agreements herein contained
shall be binding upon and inure to the benefit of the personal representatives,
devisees, heirs, successors, transferees and assigns of the respective parties
hereto.
f. Jurisdiction: The parties agree that, irrespective of any wording that
might be construed to be in conflict with this paragraph, this agreement is one
for performance in Florida. The parties to this agreement agree that they waive
any objection, constitutional, statutory or otherwise, to a Florida court's
taking jurisdiction of any dispute between them. By entering into this
agreement, the parties, and each of them understand that they might be called
upon to answer a claim asserted in a Florida court.
g. Waiver: No waiver of any provision of this Agreement shall be deemed, or
shall constitute, a waiver of any other provision, whether or not similar, nor
shall any waiver constitute a continuing waiver. No waiver shall be binding
unless executed in writing by the party making the waiver.
h. Entire Agreement: This Agreement constitutes the entire Agreement
between the parties pertaining to its subject matter, and it supersedes all
prior contemporaneous agreement, representations, and understandings of the
parties. No supplement, modifications, or amendment of this Agreement shall be
binding unless executed in writing by all parties.
IN WITNESS WHEREOF, the parties have executed this Agreement effective the
date first stated above.
SwiftyNet. Com, Inc. Entertainment Network, Inc.
/s/ Raymond Lipsch /s/ David G. Marshlack
By:____________________________ By:__________________________
Its CEO/Chairman, Raymond Lipsch Its President, David G. Marshlack
CONSULTING AGREEMENT
DATE: September 19, 2000
PARTIES: FRANK PINIZZOTTO (the "Consultant")
SWIFTYNET.COM, INC.
a Florida corporation (the "Company")
AGREEMENTS:
SECTION 1. RETENTION OF CONSULTANT
1.1 Effective Date. Effective September 19, 2000 (the "Effective Date") the
Company shall retain the Consultant as an independent contractor consultant, and
the Consultant hereby accepts such consulting relationship, upon the terms and
conditions set forth in this Agreement.
1.2 Services. The Consultant agrees to serve the Company as a consultant
regarding web design and Internet services. The Consultant shall perform and
discharge well and faithfully for the Company such consulting services during
the term of this Agreement as may be assigned to the Consultant from time to
time by the President or Vice President for Operations of the Company or of
SwiftyNet.com, Inc.; provided, however, that no such services shall require the
availability of the Consultant in excess of 1,200 hours per year.
SECTION 2. COMPENSATION
2.1 Consulting Fee and Expense Reimbursement. In full satisfaction for any
and all consulting services rendered by the Consultant for the Company under
this Agreement, the Company shall pay the Consultant a consulting fee and
retainer of 100,000 shares of the Company's common stock. All shares issued
hereunder shall bear a restrictive legend. In addition to such consulting fees,
the Company agrees to reimburse the Consultant for the Consultant's travel and
reasonable living expenses away from the location of the Consultant's principal
office directly incurred by the Consultant at the Company's request in
performing consulting services for the Company. Such travel and living expenses
shall be reimbursed monthly, at the same time the consulting fees are paid, so
long as the Consultant provides the Company with invoices for such expenses, and
such supporting information or receipts as the Company reasonably requests,
prior to the date of payment.
2.2 Additional Hours. The annual retainer payment for the Consultant's
services is based on anticipated use of Consultant's time in the amount of 1,200
hours per year. Should the Company utilize Consultant's services in excess of
1,200 hours per year, Consultant shall be paid $50.00 per hour for additional
time spent.
2.3 Other Compensation and Fringe Benefits. The Consultant shall not
receive any other compensation from the Company or participate in or receive
benefits under any of the Company's employee fringe benefit programs or receive
any other fringe benefits from the Company on account of the consulting services
to be provided to the Company under this Agreement, including without limitation
health, disability, life insurance, retirement, pension, and profit sharing
benefits.
2.4 Time Records and Reports. The Consultant shall prepare accurate and
complete records of the Consultant's services for the Company under this
Agreement and agrees to submit records on a monthly basis to the Company, along
with such other documentation of the services performed under this Agreement as
reasonably requested by the Company.
SECTION 3. NATURE OF RELATIONSHIP; EXPENSES
3.1 Independent Contractor. It is agreed that the Consultant shall be an
independent contractor and shall not be the employee, servant, agent, partner,
or joint venturer of the Company, or any of its officers, directors, or
employees. The Consultant shall not have the right to or be entitled to any of
the employee benefits of the Company or its subsidiaries. The Consultant has no
authority to assume or create any obligation or liability, express or implied,
on the Company's behalf or in its name or to bind the Company in any manner
whatsoever.
3.2 Insurance and Taxes. The Consultant agrees to arrange for the
Consultant's own liability, disability, health, and workers' compensation
insurance, and that of the Consultant's employees, if any. The Consultant
further agrees to be responsible for the Consultant's own tax obligations
accruing as a result of payments for services rendered under this Agreement, as
well as for the tax withholding obligations with respect to the Consultant's
employees, if any. It is expressly understood and agreed by the Consultant that
should the Company for any reason incur tax liability or charges whatsoever as a
result of not making any withholdings from payments for services under this
Agreement, the Consultant will reimburse and indemnify the Company for the same.
3.3 Equipment, Tools, Employees and Overhead. The Consultant shall provide,
at the Consultant's expense, all equipment and tools needed to provide services
under this Agreement, including the salaries of and benefits provided to any
employees of the Consultant. Except as otherwise provided in this Agreement, the
Consultant shall be responsible for all of the Consultant's overhead costs and
expenses.
SECTION 4. TERM
4.1 Initial Term; Renewal. Unless otherwise terminated pursuant to the
provisions of Section 4.2, the consulting relationship under this Agreement
shall commence on the Effective Date and continue in effect until September 19,
2000 (the "Initial Term"). Thereafter, the term of the consulting relationship
under this Agreement shall be extended for successive one-year periods subject
to either party's right to terminate the consulting relationship at the end of
the Initial Term or on any subsequent anniversary thereof by giving the other
party at least 10 days' written notice prior to the effective date of such
termination.
4.2 Early Termination. The consulting relationship under this Agreement may
be terminated prior to the end of the Initial Term or any renewal term by the
death of the Consultant, the disability of the Consultant resulting in the
inability of the Consultant to perform the consulting service, or by written
notice from the Company that, in the Company's sole determination: (a) the
Consultant has refused, failed, or is unable to render consulting services under
this Agreement; (b) the Consultant has breached any of the Consultant's other
obligations under this Agreement; or (c) the Consultant has engaged or is
engaging in conduct that in the Company's sole determination is detrimental to
the Company. If the consulting relationship is terminated for any of the reasons
set forth in the preceding sentence, the right of the Consultant to the
compensation set forth in Section 2 of this Agreement shall cease on the date of
such termination, and the Company shall have no further obligation to the
Consultant under any of the provisions of this Agreement.
4.3 Effect of Termination. Termination of the consulting relationship shall
not affect the provisions of Sections 5, 6, 7, and 8, which provisions shall
survive any termination in accordance with their terms.
SECTION 5. DISCLOSURE OF INFORMATION
The Consultant acknowledges that the Company's trade secrets, private or
secret processes as they exist from time to time, and information concerning
products, developments, manufacturing techniques, new product plans, equipment,
inventions, discoveries, patent applications, ideas, designs, engineering
drawings, sketches, renderings, other drawings, manufacturing and test data,
computer programs, progress reports, materials, costs, specifications,
processes, methods, research, procurement and sales activities and procedures,
promotion and pricing techniques, and credit and financial data concerning
customers of the Company and its subsidiaries, as well as information relating
to the management, operation, or planning of the Company and its subsidiaries
(the "Proprietary Information") are valuable, special, and unique assets of the
Company and its subsidiaries, access to and knowledge of which may be essential
to the performance of the Consultant's duties under this Agreement. In light of
the highly competitive nature of the industry in which the Company and its
subsidiaries conduct their businesses, the Consultant agrees that all
Proprietary Information obtained by the Consultant as a result of the
Consultant's relationship with the Company and its subsidiaries shall be
considered confidential. In recognition of this fact, the Consultant agrees that
the Consultant will not, during and after the Consulting Period, disclose any of
such Proprietary Information to any person or entity for any reason or purpose
whatsoever, and the Consultant will not make use of any Proprietary Information
for the Consultant's own purposes or for the benefit of any other person or
entity (except the Company and its subsidiaries) under any circumstances.
SECTION 6. NONCOMPETITION AGREEMENT
In order to further protect the confidentiality of the Proprietary
Information and in recognition of the highly competitive nature of the
industries in which the Company and its subsidiaries conduct their businesses,
and for the consideration set forth herein, the Consultant further agrees as
follows:
6.1 Restriction on Competition. During and for the period commencing on the
Effective Date and ending on the date on which the Consultant's consulting
relationship with the Company terminates, the Consultant will not directly or
indirectly engage in any Business Activities (hereinafter defined), other than
on behalf of the Company or its subsidiaries, whether such engagement is as an
officer, director, proprietor, employee, partner, investor (other than as a
holder of less than 1% of the outstanding capital stock of a publicly-traded
corporation), consultant, advisor, agent, or other participant, in any
geographic area in which the products or services of the Company or its
subsidiaries have been distributed or provided during the period of the
Consultant's consulting relationship with the Company. For purposes of this
Agreement, the term "Business Activities" shall mean any business in which the
Company is actively engaged as of the termination of this Agreement together
with all other activities engaged in by the Company or any of its subsidiaries
at any time during the Consultant's consulting relationship with the Company,
and activities in any way related to activities with respect to which the
Consultant renders consulting services under this Agreement.
6.2 Dealings with Customers of the Company. During and for the period
commencing on the Effective Date and ending on the date on which the
Consultant's consulting relationship with the Company terminates, the Consultant
will not directly or indirectly engage in any of the Business Activities (other
than on behalf of the Company or its subsidiaries) by supplying products or
providing services to any customer with whom the Company or its subsidiaries
have done any business during the consulting relationship with the Company,
whether as an officer, director, proprietor, employee, partner, investor (other
than as a holder of less than one percent (1%) of the outstanding capital stock
of a publicly traded corporation), consultant, advisor, agent, or other
participant.
6.3 Assistance to Others. During and for the period commencing on the
Effective Date and ending on the date on which the Consultant's consulting
relationship with the Company terminates, the Consultant will not directly or
indirectly assist others in engaging in any of the Business Activities in any
manner prohibited to the Consultant under this Agreement.
6.4 Company's Employees. During and for the period commencing on the
Effective Date and ending on the date on which the Consultant's consulting
relationship with the Company terminates, the Consultant will not directly or
indirectly induce employees of the Company or any of its subsidiaries or
affiliates to engage in any activity hereby prohibited to the Consultant or to
terminate their employment.
SECTION 7. INTERPRETATION
It is expressly understood and agreed that although the Consultant and the
Company consider the restrictions contained in Sections 5 and 6 of this
Agreement reasonable for the purpose of preserving the goodwill, proprietary
rights, and going concern value of the Company and its subsidiaries, if a final
judicial determination is made by a court having jurisdiction that the time or
territory or any other restriction contained in Sections 5 and 6 is an
unenforceable restriction on the activities of the Consultant, the provisions of
such restriction shall not be rendered void but shall be deemed amended to apply
as to such maximum time and territory and to such other extent as such court may
judicially determine or indicate to be reasonable. Alternatively, if the court
referred to above finds that any restriction contained in Sections 5 and 6 or
any remedy provided in Section 9 of this Agreement is unenforceable, and such
restriction or remedy cannot be amended so as to make it enforceable, such
finding shall not affect the enforceability of any of the other restrictions
contained in this Agreement or the availability of any other remedy. The
provisions of Sections 5 and 6 shall in no respect limit or otherwise affect the
obligations of the Consultant under other agreements with the Company.
SECTION 8. DESIGNS, INVENTIONS, PATENTS AND COPYRIGHTS
8.1 Intellectual Property. The Consultant shall promptly disclose, grant,
and assign to the Company for its sole use and benefit any and all designs,
inventions, improvements, technical information, know-how and technology, and
suggestions relating in any way to the products of the Company or its
subsidiaries or capable of beneficial use by customers to whom products or
services of the Company or its subsidiaries are sold or provided, that the
Consultant may conceive, develop, or acquire during the Consultant's consulting
relationship with the Company or its subsidiaries (whether or not during usual
working hours), together with all copyrights, trademarks, design patents,
patents, and applications for copyrights, trademarks, design patents, patents,
divisions of pending patent applications, applications for reissue of patents
and specific assignments of such applications that may at any time be granted
for or upon any such designs, inventions, improvements, technical information,
know-how, or technology (the "Intellectual Property").
8.2 Assignments and Assistance. In connection with the rights of the
Company to the Intellectual Property, the Consultant shall promptly execute and
deliver such applications, assignments, descriptions, and other instruments as
may be necessary or proper in the opinion of the Company to vest in the Company
title to the Intellectual Property and to enable the Company to obtain and
maintain the entire right and title to the Intellectual Property throughout the
world. The Consultant shall also render to the Company, at the Company's
expense, such assistance as the Company may require in the prosecution of
applications for said patents or reissues thereof, in the prosecution or defense
of interferences which may be declared involving any of said applications or
patents, and in any litigation in which the Company or its subsidiaries may be
involved relating to the Intellectual Property.
8.3 Copyrights. The Consultant agrees to, and hereby grants to the Company,
title to all copyrightable material first designed, produced, or composed in the
course of or pursuant to the performance of work under this Agreement, which
material shall be deemed "works made for hire" under Title 17, United States
Code, Section 1.01 of the Copyright Act of 1976. The Consultant hereby grants to
the Company a royalty-free, nonexclusive, and irrevocable license to reproduce,
translate, publish, use, and dispose of, and to authorize others so to do, any
and all copyrighted or copyrightable material created by the Consultant as a
result of work performed under this Agreement but not first produced or composed
by the Consultant in the performance of this Agreement, provided that the
license granted by this paragraph shall be only to the extent the Consultant now
has, or prior to the completion of work under this Agreement or under any later
agreements with the Company or its subsidiaries relating to similar work may
acquire, the right to grant such licenses without the Company becoming liable to
pay compensation to others solely because of such grant.
8.4 Patent Compensation. In consideration for the prompt execution and
delivery of applications, assignments, descriptions, or other instruments in
connection with any patents or patent applications the Company agrees to pay to
Consultant $1,000 for each United States patent issued in the name of Consultant
during the Consulting Period or within two years after termination of the
Consulting Period; provided that the design, invention, improvement, know-how or
technology forming the basis of such issued United States patent was conceived
and reduced to practice during the Consulting Period.
SECTION 9. REMEDIES
The Consultant acknowledges and agrees that the Company's remedy at law for
a breach or threatened breach of any of the provisions of Sections 5, 6, and 8
of this Agreement would be inadequate and, in recognition of this fact, in the
event of a breach or threatened breach by the Consultant of any of the
provisions of Sections 5, 6, and 8, the Consultant agrees that, in addition to
its remedy at law, at the Company's option, all rights of the Consultant under
this Agreement may be terminated, and the Company shall be entitled without
posting any bond to obtain, and the Consultant agrees not to oppose a request
for, equitable relief in the form of specific performance, temporary restraining
order, temporary or permanent injunction, or any other equitable remedy which
may then be available. The Consultant acknowledges that the granting of a
temporary injunction, temporary restraining order or permanent injunction merely
prohibiting the use of Proprietary Information would not be an adequate remedy
upon breach or threatened breach of Sections 5 and 6, and consequently agrees
upon any such breach or threatened breach to the granting of injunctive relief
prohibiting the design, development, manufacture, marketing or sale of products
and providing of services of the kind designed, developed, manufactured,
marketed, sold or provided by the Company or its subsidiaries during the term of
the Consultant's consulting relationship with the Company. Nothing contained in
this Section 9 shall be construed as prohibiting the Company from pursuing, in
addition, any other remedies available to it for such breach or threatened
breach.
SECTION 10. MISCELLANEOUS PROVISIONS
10.1 Assignment. This Agreement shall not be assignable by either party,
except by the Company to any subsidiary or affiliate of the Company or to any
successor in interest to the Company's business.
10.2 Binding Effect. The provisions of this Agreement shall be binding upon
and inure to the benefit of the heirs, personal representatives, successors, and
assigns of the parties.
10.3 Notice. Any notice or other communication required or permitted to be
given under this Agreement shall be in writing and shall be mailed by certified
mail, return receipt requested, postage prepaid, addressed to the parties at the
following addresses:
As to Consultant: Frank Pinizzotto
12547 66th Street, N.
Largo, FL 33733
As to Company: SwiftyNet.com, Inc.
201 E. Kennedy Blvd., Suite 520
Tampa, FL 33602
All notices and other communications shall be deemed to be given at the
expiration of three (3) days after the date of mailing. The address of a party
to which notices or other communications shall be mailed may be changed from
time to time by giving written notice to the other party.
10.4 Litigation Expense. In the event of a default under this Agreement,
the defaulting party shall reimburse the nondefaulting party for all costs and
expenses reasonably incurred by the nondefaulting party in connection with the
default, including without limitation attorney's fees. Additionally, in the
event a suit or action is filed to enforce this Agreement or with respect to
this Agreement, the prevailing party or parties shall be reimbursed by the other
party for all costs and expenses incurred in connection with the suit or action,
including without limitation reasonable attorney's fees at the trial level and
on appeal.
10.5 Waiver. No waiver of any provision of this Agreement shall be deemed,
or shall constitute, a waiver of any other provision, whether or not similar,
nor shall any waiver constitute a continuing waiver. No waiver shall be binding
unless executed in writing by the party making the waiver.
10.6 Applicable Law. This Agreement shall be governed by and shall be
construed in accordance with the laws of the state of Florida. Exclusive venue
for any action arising hereunder or in connection herewith shall lie in state
court in Alachua County, Florida.
10.7 Entire Agreement. This Agreement constitutes the entire Agreement
between the parties pertaining to its subject matter, and it supersedes all
prior contemporaneous agreements, representations, and understandings of the
parties. No supplement, modification, or amendment of this Agreement shall be
binding unless executed in writing by all parties.
Company: Consultant:
/s/ FRANK PINIZZOTTO
SWIFTYNET.COM, INC. ______________________________________
/s/ Rachel Steele FRANK PINIZZOTTO
By:__________________________________
President
Title:_________________________________
CONSULTING AGREEMENT
DATE: September 19, 2000
PARTIES: GIGI PINIZZOTTO (the "Consultant")
SWIFTYNET.COM, INC.
a Florida corporation (the "Company")
AGREEMENTS:
SECTION 1. RETENTION OF CONSULTANT
1.1 Effective Date. Effective September 19, 2000 (the "Effective Date") the
Company shall retain the Consultant as an independent contractor consultant, and
the Consultant hereby accepts such consulting relationship, upon the terms and
conditions set forth in this Agreement.
1.2 Services. The Consultant agrees to serve the Company as a consultant
regarding web design and Internet services. The Consultant shall perform and
discharge well and faithfully for the Company such consulting services during
the term of this Agreement as may be assigned to the Consultant from time to
time by the President or Vice President for Operations of the Company or of
SwiftyNet.com, Inc.; provided, however, that no such services shall require the
availability of the Consultant in excess of 1,200 hours per year.
SECTION 2. COMPENSATION
2.1 Consulting Fee and Expense Reimbursement. In full satisfaction for any
and all consulting services rendered by the Consultant for the Company under
this Agreement, the Company shall pay the Consultant a consulting fee and
retainer of 200,000 shares of the Company's common stock. All shares issued
hereunder shall bear a restrictive legend. In addition to such consulting fees,
the Company agrees to reimburse the Consultant for the Consultant's travel and
reasonable living expenses away from the location of the Consultant's principal
office directly incurred by the Consultant at the Company's request in
performing consulting services for the Company. Such travel and living expenses
shall be reimbursed monthly, at the same time the consulting fees are paid, so
long as the Consultant provides the Company with invoices for such expenses, and
such supporting information or receipts as the Company reasonably requests,
prior to the date of payment.
2.2 Additional Hours. The annual retainer payment for the Consultant's
services is based on anticipated use of Consultant's time in the amount of 1,200
hours per year. Should the Company utilize Consultant's services in excess of
1,200 hours per year, Consultant shall be paid $50.00 per hour for additional
time spent.
2.3 Other Compensation and Fringe Benefits. The Consultant shall not
receive any other compensation from the Company or participate in or receive
benefits under any of the Company's employee fringe benefit programs or receive
any other fringe benefits from the Company on account of the consulting services
to be provided to the Company under this Agreement, including without limitation
health, disability, life insurance, retirement, pension, and profit sharing
benefits.
2.4 Time Records and Reports. The Consultant shall prepare accurate and
complete records of the Consultant's services for the Company under this
Agreement and agrees to submit records on a monthly basis to the Company, along
with such other documentation of the services performed under this Agreement as
reasonably requested by the Company.
SECTION 3. NATURE OF RELATIONSHIP; EXPENSES
3.1 Independent Contractor. It is agreed that the Consultant shall be an
independent contractor and shall not be the employee, servant, agent, partner,
or joint venturer of the Company, or any of its officers, directors, or
employees. The Consultant shall not have the right to or be entitled to any of
the employee benefits of the Company or its subsidiaries. The Consultant has no
authority to assume or create any obligation or liability, express or implied,
on the Company's behalf or in its name or to bind the Company in any manner
whatsoever.
3.2 Insurance and Taxes. The Consultant agrees to arrange for the
Consultant's own liability, disability, health, and workers' compensation
insurance, and that of the Consultant's employees, if any. The Consultant
further agrees to be responsible for the Consultant's own tax obligations
accruing as a result of payments for services rendered under this Agreement, as
well as for the tax withholding obligations with respect to the Consultant's
employees, if any. It is expressly understood and agreed by the Consultant that
should the Company for any reason incur tax liability or charges whatsoever as a
result of not making any withholdings from payments for services under this
Agreement, the Consultant will reimburse and indemnify the Company for the same.
3.3 Equipment, Tools, Employees and Overhead. The Consultant shall provide,
at the Consultant's expense, all equipment and tools needed to provide services
under this Agreement, including the salaries of and benefits provided to any
employees of the Consultant. Except as otherwise provided in this Agreement, the
Consultant shall be responsible for all of the Consultant's overhead costs and
expenses.
SECTION 4. TERM
4.1 Initial Term; Renewal. Unless otherwise terminated pursuant to the
provisions of Section 4.2, the consulting relationship under this Agreement
shall commence on the Effective Date and continue in effect until September 19,
2000 (the "Initial Term"). Thereafter, the term of the consulting relationship
under this Agreement shall be extended for successive one-year periods subject
to either party's right to terminate the consulting relationship at the end of
the Initial Term or on any subsequent anniversary thereof by giving the other
party at least 10 days' written notice prior to the effective date of such
termination.
4.2 Early Termination. The consulting relationship under this Agreement may
be terminated prior to the end of the Initial Term or any renewal term by the
death of the Consultant, the disability of the Consultant resulting in the
inability of the Consultant to perform the consulting service, or by written
notice from the Company that, in the Company's sole determination: (a) the
Consultant has refused, failed, or is unable to render consulting services under
this Agreement; (b) the Consultant has breached any of the Consultant's other
obligations under this Agreement; or (c) the Consultant has engaged or is
engaging in conduct that in the Company's sole determination is detrimental to
the Company. If the consulting relationship is terminated for any of the reasons
set forth in the preceding sentence, the right of the Consultant to the
compensation set forth in Section 2 of this Agreement shall cease on the date of
such termination, and the Company shall have no further obligation to the
Consultant under any of the provisions of this Agreement.
4.3 Effect of Termination. Termination of the consulting relationship shall
not affect the provisions of Sections 5, 6, 7, and 8, which provisions shall
survive any termination in accordance with their terms.
SECTION 5. DISCLOSURE OF INFORMATION
The Consultant acknowledges that the Company's trade secrets, private or
secret processes as they exist from time to time, and information concerning
products, developments, manufacturing techniques, new product plans, equipment,
inventions, discoveries, patent applications, ideas, designs, engineering
drawings, sketches, renderings, other drawings, manufacturing and test data,
computer programs, progress reports, materials, costs, specifications,
processes, methods, research, procurement and sales activities and procedures,
promotion and pricing techniques, and credit and financial data concerning
customers of the Company and its subsidiaries, as well as information relating
to the management, operation, or planning of the Company and its subsidiaries
(the "Proprietary Information") are valuable, special, and unique assets of the
Company and its subsidiaries, access to and knowledge of which may be essential
to the performance of the Consultant's duties under this Agreement. In light of
the highly competitive nature of the industry in which the Company and its
subsidiaries conduct their businesses, the Consultant agrees that all
Proprietary Information obtained by the Consultant as a result of the
Consultant's relationship with the Company and its subsidiaries shall be
considered confidential. In recognition of this fact, the Consultant agrees that
the Consultant will not, during and after the Consulting Period, disclose any of
such Proprietary Information to any person or entity for any reason or purpose
whatsoever, and the Consultant will not make use of any Proprietary Information
for the Consultant's own purposes or for the benefit of any other person or
entity (except the Company and its subsidiaries) under any circumstances.
SECTION 6. NONCOMPETITION AGREEMENT
In order to further protect the confidentiality of the Proprietary
Information and in recognition of the highly competitive nature of the
industries in which the Company and its subsidiaries conduct their businesses,
and for the consideration set forth herein, the Consultant further agrees as
follows:
6.1 Restriction on Competition. During and for the period commencing on the
Effective Date and ending on the date on which the Consultant's consulting
relationship with the Company terminates, the Consultant will not directly or
indirectly engage in any Business Activities (hereinafter defined), other than
on behalf of the Company or its subsidiaries, whether such engagement is as an
officer, director, proprietor, employee, partner, investor (other than as a
holder of less than 1% of the outstanding capital stock of a publicly-traded
corporation), consultant, advisor, agent, or other participant, in any
geographic area in which the products or services of the Company or its
subsidiaries have been distributed or provided during the period of the
Consultant's consulting relationship with the Company. For purposes of this
Agreement, the term "Business Activities" shall mean any business in which the
Company is actively engaged as of the termination of this Agreement together
with all other activities engaged in by the Company or any of its subsidiaries
at any time during the Consultant's consulting relationship with the Company,
and activities in any way related to activities with respect to which the
Consultant renders consulting services under this Agreement.
6.2 Dealings with Customers of the Company. During and for the period
commencing on the Effective Date and ending on the date on which the
Consultant's consulting relationship with the Company terminates, the Consultant
will not directly or indirectly engage in any of the Business Activities (other
than on behalf of the Company or its subsidiaries) by supplying products or
providing services to any customer with whom the Company or its subsidiaries
have done any business during the consulting relationship with the Company,
whether as an officer, director, proprietor, employee, partner, investor (other
than as a holder of less than one percent (1%) of the outstanding capital stock
of a publicly traded corporation), consultant, advisor, agent, or other
participant.
6.3 Assistance to Others. During and for the period commencing on the
Effective Date and ending on the date on which the Consultant's consulting
relationship with the Company terminates, the Consultant will not directly or
indirectly assist others in engaging in any of the Business Activities in any
manner prohibited to the Consultant under this Agreement.
6.4 Company's Employees. During and for the period commencing on the
Effective Date and ending on the date on which the Consultant's consulting
relationship with the Company terminates, the Consultant will not directly or
indirectly induce employees of the Company or any of its subsidiaries or
affiliates to engage in any activity hereby prohibited to the Consultant or to
terminate their employment.
SECTION 7. INTERPRETATION
It is expressly understood and agreed that although the Consultant and the
Company consider the restrictions contained in Sections 5 and 6 of this
Agreement reasonable for the purpose of preserving the goodwill, proprietary
rights, and going concern value of the Company and its subsidiaries, if a final
judicial determination is made by a court having jurisdiction that the time or
territory or any other restriction contained in Sections 5 and 6 is an
unenforceable restriction on the activities of the Consultant, the provisions of
such restriction shall not be rendered void but shall be deemed amended to apply
as to such maximum time and territory and to such other extent as such court may
judicially determine or indicate to be reasonable. Alternatively, if the court
referred to above finds that any restriction contained in Sections 5 and 6 or
any remedy provided in Section 9 of this Agreement is unenforceable, and such
restriction or remedy cannot be amended so as to make it enforceable, such
finding shall not affect the enforceability of any of the other restrictions
contained in this Agreement or the availability of any other remedy. The
provisions of Sections 5 and 6 shall in no respect limit or otherwise affect the
obligations of the Consultant under other agreements with the Company.
SECTION 8. DESIGNS, INVENTIONS, PATENTS AND COPYRIGHTS
8.1 Intellectual Property. The Consultant shall promptly disclose, grant,
and assign to the Company for its sole use and benefit any and all designs,
inventions, improvements, technical information, know-how and technology, and
suggestions relating in any way to the products of the Company or its
subsidiaries or capable of beneficial use by customers to whom products or
services of the Company or its subsidiaries are sold or provided, that the
Consultant may conceive, develop, or acquire during the Consultant's consulting
relationship with the Company or its subsidiaries (whether or not during usual
working hours), together with all copyrights, trademarks, design patents,
patents, and applications for copyrights, trademarks, design patents, patents,
divisions of pending patent applications, applications for reissue of patents
and specific assignments of such applications that may at any time be granted
for or upon any such designs, inventions, improvements, technical information,
know-how, or technology (the "Intellectual Property").
8.2 Assignments and Assistance. In connection with the rights of the
Company to the Intellectual Property, the Consultant shall promptly execute and
deliver such applications, assignments, descriptions, and other instruments as
may be necessary or proper in the opinion of the Company to vest in the Company
title to the Intellectual Property and to enable the Company to obtain and
maintain the entire right and title to the Intellectual Property throughout the
world. The Consultant shall also render to the Company, at the Company's
expense, such assistance as the Company may require in the prosecution of
applications for said patents or reissues thereof, in the prosecution or defense
of interferences which may be declared involving any of said applications or
patents, and in any litigation in which the Company or its subsidiaries may be
involved relating to the Intellectual Property.
8.3 Copyrights. The Consultant agrees to, and hereby grants to the Company,
title to all copyrightable material first designed, produced, or composed in the
course of or pursuant to the performance of work under this Agreement, which
material shall be deemed "works made for hire" under Title 17, United States
Code, Section 1.01 of the Copyright Act of 1976. The Consultant hereby grants to
the Company a royalty-free, nonexclusive, and irrevocable license to reproduce,
translate, publish, use, and dispose of, and to authorize others so to do, any
and all copyrighted or copyrightable material created by the Consultant as a
result of work performed under this Agreement but not first produced or composed
by the Consultant in the performance of this Agreement, provided that the
license granted by this paragraph shall be only to the extent the Consultant now
has, or prior to the completion of work under this Agreement or under any later
agreements with the Company or its subsidiaries relating to similar work may
acquire, the right to grant such licenses without the Company becoming liable to
pay compensation to others solely because of such grant.
8.4 Patent Compensation. In consideration for the prompt execution and
delivery of applications, assignments, descriptions, or other instruments in
connection with any patents or patent applications the Company agrees to pay to
Consultant $1,000 for each United States patent issued in the name of Consultant
during the Consulting Period or within two years after termination of the
Consulting Period; provided that the design, invention, improvement, know-how or
technology forming the basis of such issued United States patent was conceived
and reduced to practice during the Consulting Period.
SECTION 9. REMEDIES
The Consultant acknowledges and agrees that the Company's remedy at law for
a breach or threatened breach of any of the provisions of Sections 5, 6, and 8
of this Agreement would be inadequate and, in recognition of this fact, in the
event of a breach or threatened breach by the Consultant of any of the
provisions of Sections 5, 6, and 8, the Consultant agrees that, in addition to
its remedy at law, at the Company's option, all rights of the Consultant under
this Agreement may be terminated, and the Company shall be entitled without
posting any bond to obtain, and the Consultant agrees not to oppose a request
for, equitable relief in the form of specific performance, temporary restraining
order, temporary or permanent injunction, or any other equitable remedy which
may then be available. The Consultant acknowledges that the granting of a
temporary injunction, temporary restraining order or permanent injunction merely
prohibiting the use of Proprietary Information would not be an adequate remedy
upon breach or threatened breach of Sections 5 and 6, and consequently agrees
upon any such breach or threatened breach to the granting of injunctive relief
prohibiting the design, development, manufacture, marketing or sale of products
and providing of services of the kind designed, developed, manufactured,
marketed, sold or provided by the Company or its subsidiaries during the term of
the Consultant's consulting relationship with the Company. Nothing contained in
this Section 9 shall be construed as prohibiting the Company from pursuing, in
addition, any other remedies available to it for such breach or threatened
breach.
SECTION 10. MISCELLANEOUS PROVISIONS
10.1 Assignment. This Agreement shall not be assignable by either party,
except by the Company to any subsidiary or affiliate of the Company or to any
successor in interest to the Company's business.
10.2 Binding Effect. The provisions of this Agreement shall be binding upon
and inure to the benefit of the heirs, personal representatives, successors, and
assigns of the parties.
10.3 Notice. Any notice or other communication required or permitted to be
given under this Agreement shall be in writing and shall be mailed by certified
mail, return receipt requested, postage prepaid, addressed to the parties at the
following addresses:
As to Consultant: Gigi Pinizzotto
2410 Ken Place
Clearwater, FL 33764
As to Company: SwiftyNet.com, Inc.
201 E. Kennedy Blvd., Suite 520
Tampa, FL 33602
All notices and other communications shall be deemed to be given at the
expiration of three (3) days after the date of mailing. The address of a party
to which notices or other communications shall be mailed may be changed from
time to time by giving written notice to the other party.
10.4 Litigation Expense. In the event of a default under this Agreement,
the defaulting party shall reimburse the nondefaulting party for all costs and
expenses reasonably incurred by the nondefaulting party in connection with the
default, including without limitation attorney's fees. Additionally, in the
event a suit or action is filed to enforce this Agreement or with respect to
this Agreement, the prevailing party or parties shall be reimbursed by the other
party for all costs and expenses incurred in connection with the suit or action,
including without limitation reasonable attorney's fees at the trial level and
on appeal.
10.5 Waiver. No waiver of any provision of this Agreement shall be deemed,
or shall constitute, a waiver of any other provision, whether or not similar,
nor shall any waiver constitute a continuing waiver. No waiver shall be binding
unless executed in writing by the party making the waiver.
10.6 Applicable Law. This Agreement shall be governed by and shall be
construed in accordance with the laws of the state of Florida. Exclusive venue
for any action arising hereunder or in connection herewith shall lie in state
court in Alachua County, Florida.
10.7 Entire Agreement. This Agreement constitutes the entire Agreement
between the parties pertaining to its subject matter, and it supersedes all
prior contemporaneous agreements, representations, and understandings of the
parties. No supplement, modification, or amendment of this Agreement shall be
binding unless executed in writing by all parties.
Company: Consultant:
/s/ GIGI PINIZZOTTO
SWIFTYNET.COM, INC ______________________________________
/s/ Rachel Steele GIGI PINIZZOTTO
By:__________________________________
President
Title:_________________________________
PROFESSIONAL SERVICES AGREEMENT
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and executed on
this 31st day of July, 2000, by and between SWIFTYNET.COM, INC., a Florida
corporation ("Company") and LAURIE STERN, an individual ("Contractor").
W I T N E S S E T H
WHEREAS, Contractor is engaged in the business providing professional
consulting services; and
WHEREAS, the Company desires to retain Contractor to perform such services
on behalf of the Company.
NOW, THEREFORE, in consideration of the mutual promises and undertaking of
the parties set forth below, the parties agree as follows:
1. Duties of Contractor. The Company specifically requests that Contractor
perform services for the benefit of the Company including corporate imaging, as
reasonably requested by the Company. The services provided will not be in
connection with the offer or sale of securities in a capital-raising transaction
and do not directly or indirectly promote or maintain a market for the
registrant's securities.
2. Compensation. In consideration of performing the services, the Company
agrees to pay Contractor the amounts that are set forth below:
a. Consulting services shall be computed and paid at the rate of 25,000
restricted shares (the "Shares") of the Company's common stock each quarter,
deliverable in certificate form to Contractor at contractor's address of record
on August 1, 2000, November 1, 2000, February 1, 2001, and May 1, 2001.
b. In the event of a split, subsequent to the date of the execution of this
agreement the Shares would be adjusted accordingly.
c. Should a registration statement become effective for the Company during
the term of this agreement, the Shares due Contractor or in the possession of
the Contractor will be registered for sale by the Company via said Registration
Statement and would not be required to be sold via Rule 144. The Company agrees
to pay any associated attorney's fees in connection with the registration of
Contractor's Shares or rendering of the opinion of said Shares.
d. All "Restricted Shares" provided to Contractor by the Company will
require a one year holding period, unless the circumstances in item d. pertain.
The Company agrees to have counsel opine on Contractor's restricted shares
within seven calendar days of Contractor's request of the Company or counsel to
render an opinion.
PROFESSIONAL SERVICES AGREEMENT
BETWEEN SWIFTYNET.COM
AND LAURIE STERN
(supersedes Agreement dated December 2, 1999)
e. Period activity reports shall be submitted to Company by Contractor, at
least once a month.
f. The Company agrees to pay all reasonable travel, lodging and incidental
out-of-pocket expenses including but not limited to office supplies, telephone
charges (not to exceed $49.99 unless authorized by the Company), parking
expenses incurred by Contractor in rendering services on behalf of the Company.
g. Billings which remain outstanding are subject to interest at 18%.
3. Term of Agreement. The effective date of this Agreement shall be that
stated above, and it shall remain effective and continue in force and effect
until one calendar year from the effective date. Contractor and Company reserve
the right to cancel this Agreement with thirty (30) days written notice to the
address of record. In the event the Company cancels this Agreement, any Shares
in connection with this Agreement paid to Contractor will remain property of
Contractor.
4. Confidential Relationship. All information furnished by the Company to
Contractor shall be treated as confidential and proprietary and shall not be
disclosed to any third parties without express consent by both the Company and
Contractor.
5. Attorneys' Fees. In the event of litigation, arbitration or dispute
resolution for the collection of fees due to Contractor by Company, the
prevailing party shall be entitled to recovery of its reasonable fees, all costs
and expenses necessitated thereby and expenses of counsel.
6. Applicable Law and Binding Effect. This Agreement shall be construed and
regulated under and by the laws of the state of Florida, and shall inure to
benefit of and be binding upon the parties hereto and their heirs, personal
representatives, successors and assigns.
IN WITNESS WHEREOF, the undersigned have hereunto caused this Agreement to
be executed the day and year above written.
COMPANY: CONTRACTOR:
/s/ David Weintraub /s/ Laurie Stern
_______________________________ ____________________________________
David Weintraub Laurie Stern
Director of Operations 10309 Bay Club Court
SwiftNet.com, Inc. Tampa, FL 33607
201 E. Kennedy Blvd., Ste 520
Tampa, FL 33602
CONSULTING AGREEMENT
DATE: September 19, 2000
PARTIES: MARK DANIEL WHITE (the "Consultant")
SWIFTYNET.COM, INC.
a Florida corporation (the "Company")
AGREEMENTS:
SECTION 1. RETENTION OF CONSULTANT
1.1 Effective Date. Effective September 19, 2000 (the "Effective Date") the
Company shall retain the Consultant as an independent contractor consultant, and
the Consultant hereby accepts such consulting relationship, upon the terms and
conditions set forth in this Agreement.
1.2 Services. The Consultant agrees to serve the Company as a consultant
regarding web design and Internet services. The Consultant shall perform and
discharge well and faithfully for the Company such consulting services during
the term of this Agreement as may be assigned to the Consultant from time to
time by the President or Vice President for Operations of the Company or of
SwiftyNet.com, Inc.; provided, however, that no such services shall require the
availability of the Consultant in excess of 1,200 hours per year.
SECTION 2. COMPENSATION
2.1 Consulting Fee and Expense Reimbursement. In full satisfaction for any
and all consulting services rendered by the Consultant for the Company under
this Agreement, the Company shall pay the Consultant a consulting fee and
retainer of 300,000 shares of the Company's common stock. All shares issued
hereunder shall bear a restrictive legend. In addition to such consulting fees,
the Company agrees to reimburse the Consultant for the Consultant's travel and
reasonable living expenses away from the location of the Consultant's principal
office directly incurred by the Consultant at the Company's request in
performing consulting services for the Company. Such travel and living expenses
shall be reimbursed monthly, at the same time the consulting fees are paid, so
long as the Consultant provides the Company with invoices for such expenses, and
such supporting information or receipts as the Company reasonably requests,
prior to the date of payment.
2.2 Additional Hours. The annual retainer payment for the Consultant's
services is based on anticipated use of Consultant's time in the amount of 1,200
hours per year. Should the Company utilize Consultant's services in excess of
1,200 hours per year, Consultant shall be paid $50.00 per hour for additional
time spent.
2.3 Other Compensation and Fringe Benefits. The Consultant shall not
receive any other compensation from the Company or participate in or receive
benefits under any of the Company's employee fringe benefit programs or receive
any other fringe benefits from the Company on account of the consulting services
to be provided to the Company under this Agreement, including without limitation
health, disability, life insurance, retirement, pension, and profit sharing
benefits.
2.4 Time Records and Reports. The Consultant shall prepare accurate and
complete records of the Consultant's services for the Company under this
Agreement and agrees to submit records on a monthly basis to the Company, along
with such other documentation of the services performed under this Agreement as
reasonably requested by the Company.
SECTION 3. NATURE OF RELATIONSHIP; EXPENSES
3.1 Independent Contractor. It is agreed that the Consultant shall be an
independent contractor and shall not be the employee, servant, agent, partner,
or joint venturer of the Company, or any of its officers, directors, or
employees. The Consultant shall not have the right to or be entitled to any of
the employee benefits of the Company or its subsidiaries. The Consultant has no
authority to assume or create any obligation or liability, express or implied,
on the Company's behalf or in its name or to bind the Company in any manner
whatsoever.
3.2 Insurance and Taxes. The Consultant agrees to arrange for the
Consultant's own liability, disability, health, and workers' compensation
insurance, and that of the Consultant's employees, if any. The Consultant
further agrees to be responsible for the Consultant's own tax obligations
accruing as a result of payments for services rendered under this Agreement, as
well as for the tax withholding obligations with respect to the Consultant's
employees, if any. It is expressly understood and agreed by the Consultant that
should the Company for any reason incur tax liability or charges whatsoever as a
result of not making any withholdings from payments for services under this
Agreement, the Consultant will reimburse and indemnify the Company for the same.
3.3 Equipment, Tools, Employees and Overhead. The Consultant shall provide,
at the Consultant's expense, all equipment and tools needed to provide services
under this Agreement, including the salaries of and benefits provided to any
employees of the Consultant. Except as otherwise provided in this Agreement, the
Consultant shall be responsible for all of the Consultant's overhead costs and
expenses.
SECTION 4. TERM
4.1 Initial Term; Renewal. Unless otherwise terminated pursuant to the
provisions of Section 4.2, the consulting relationship under this Agreement
shall commence on the Effective Date and continue in effect until September 19,
2000 (the "Initial Term"). Thereafter, the term of the consulting relationship
under this Agreement shall be extended for successive one-year periods subject
to either party's right to terminate the consulting relationship at the end of
the Initial Term or on any subsequent anniversary thereof by giving the other
party at least 10 days' written notice prior to the effective date of such
termination.
4.2 Early Termination. The consulting relationship under this Agreement may
be terminated prior to the end of the Initial Term or any renewal term by the
death of the Consultant, the disability of the Consultant resulting in the
inability of the Consultant to perform the consulting service, or by written
notice from the Company that, in the Company's sole determination: (a) the
Consultant has refused, failed, or is unable to render consulting services under
this Agreement; (b) the Consultant has breached any of the Consultant's other
obligations under this Agreement; or (c) the Consultant has engaged or is
engaging in conduct that in the Company's sole determination is detrimental to
the Company. If the consulting relationship is terminated for any of the reasons
set forth in the preceding sentence, the right of the Consultant to the
compensation set forth in Section 2 of this Agreement shall cease on the date of
such termination, and the Company shall have no further obligation to the
Consultant under any of the provisions of this Agreement.
4.3 Effect of Termination. Termination of the consulting relationship shall
not affect the provisions of Sections 5, 6, 7, and 8, which provisions shall
survive any termination in accordance with their terms.
SECTION 5. DISCLOSURE OF INFORMATION
The Consultant acknowledges that the Company's trade secrets, private or
secret processes as they exist from time to time, and information concerning
products, developments, manufacturing techniques, new product plans, equipment,
inventions, discoveries, patent applications, ideas, designs, engineering
drawings, sketches, renderings, other drawings, manufacturing and test data,
computer programs, progress reports, materials, costs, specifications,
processes, methods, research, procurement and sales activities and procedures,
promotion and pricing techniques, and credit and financial data concerning
customers of the Company and its subsidiaries, as well as information relating
to the management, operation, or planning of the Company and its subsidiaries
(the "Proprietary Information") are valuable, special, and unique assets of the
Company and its subsidiaries, access to and knowledge of which may be essential
to the performance of the Consultant's duties under this Agreement. In light of
the highly competitive nature of the industry in which the Company and its
subsidiaries conduct their businesses, the Consultant agrees that all
Proprietary Information obtained by the Consultant as a result of the
Consultant's relationship with the Company and its subsidiaries shall be
considered confidential. In recognition of this fact, the Consultant agrees that
the Consultant will not, during and after the Consulting Period, disclose any of
such Proprietary Information to any person or entity for any reason or purpose
whatsoever, and the Consultant will not make use of any Proprietary Information
for the Consultant's own purposes or for the benefit of any other person or
entity (except the Company and its subsidiaries) under any circumstances.
SECTION 6. NONCOMPETITION AGREEMENT
In order to further protect the confidentiality of the Proprietary
Information and in recognition of the highly competitive nature of the
industries in which the Company and its subsidiaries conduct their businesses,
and for the consideration set forth herein, the Consultant further agrees as
follows:
6.1 Restriction on Competition. During and for the period commencing on the
Effective Date and ending on the date on which the Consultant's consulting
relationship with the Company terminates, the Consultant will not directly or
indirectly engage in any Business Activities (hereinafter defined), other than
on behalf of the Company or its subsidiaries, whether such engagement is as an
officer, director, proprietor, employee, partner, investor (other than as a
holder of less than 1% of the outstanding capital stock of a publicly-traded
corporation), consultant, advisor, agent, or other participant, in any
geographic area in which the products or services of the Company or its
subsidiaries have been distributed or provided during the period of the
Consultant's consulting relationship with the Company. For purposes of this
Agreement, the term "Business Activities" shall mean any business in which the
Company is actively engaged as of the termination of this Agreement together
with all other activities engaged in by the Company or any of its subsidiaries
at any time during the Consultant's consulting relationship with the Company,
and activities in any way related to activities with respect to which the
Consultant renders consulting services under this Agreement.
6.2 Dealings with Customers of the Company. During and for the period
commencing on the Effective Date and ending on the date on which the
Consultant's consulting relationship with the Company terminates, the Consultant
will not directly or indirectly engage in any of the Business Activities (other
than on behalf of the Company or its subsidiaries) by supplying products or
providing services to any customer with whom the Company or its subsidiaries
have done any business during the consulting relationship with the Company,
whether as an officer, director, proprietor, employee, partner, investor (other
than as a holder of less than one percent (1%) of the outstanding capital stock
of a publicly traded corporation), consultant, advisor, agent, or other
participant.
6.3 Assistance to Others. During and for the period commencing on the
Effective Date and ending on the date on which the Consultant's consulting
relationship with the Company terminates, the Consultant will not directly or
indirectly assist others in engaging in any of the Business Activities in any
manner prohibited to the Consultant under this Agreement.
6.4 Company's Employees. During and for the period commencing on the
Effective Date and ending on the date on which the Consultant's consulting
relationship with the Company terminates, the Consultant will not directly or
indirectly induce employees of the Company or any of its subsidiaries or
affiliates to engage in any activity hereby prohibited to the Consultant or to
terminate their employment.
SECTION 7. INTERPRETATION
It is expressly understood and agreed that although the Consultant and the
Company consider the restrictions contained in Sections 5 and 6 of this
Agreement reasonable for the purpose of preserving the goodwill, proprietary
rights, and going concern value of the Company and its subsidiaries, if a final
judicial determination is made by a court having jurisdiction that the time or
territory or any other restriction contained in Sections 5 and 6 is an
unenforceable restriction on the activities of the Consultant, the provisions of
such restriction shall not be rendered void but shall be deemed amended to apply
as to such maximum time and territory and to such other extent as such court may
judicially determine or indicate to be reasonable. Alternatively, if the court
referred to above finds that any restriction contained in Sections 5 and 6 or
any remedy provided in Section 9 of this Agreement is unenforceable, and such
restriction or remedy cannot be amended so as to make it enforceable, such
finding shall not affect the enforceability of any of the other restrictions
contained in this Agreement or the availability of any other remedy. The
provisions of Sections 5 and 6 shall in no respect limit or otherwise affect the
obligations of the Consultant under other agreements with the Company.
SECTION 8. DESIGNS, INVENTIONS, PATENTS AND COPYRIGHTS
8.1 Intellectual Property. The Consultant shall promptly disclose, grant,
and assign to the Company for its sole use and benefit any and all designs,
inventions, improvements, technical information, know-how and technology, and
suggestions relating in any way to the products of the Company or its
subsidiaries or capable of beneficial use by customers to whom products or
services of the Company or its subsidiaries are sold or provided, that the
Consultant may conceive, develop, or acquire during the Consultant's consulting
relationship with the Company or its subsidiaries (whether or not during usual
working hours), together with all copyrights, trademarks, design patents,
patents, and applications for copyrights, trademarks, design patents, patents,
divisions of pending patent applications, applications for reissue of patents
and specific assignments of such applications that may at any time be granted
for or upon any such designs, inventions, improvements, technical information,
know-how, or technology (the "Intellectual Property").
8.2 Assignments and Assistance. In connection with the rights of the
Company to the Intellectual Property, the Consultant shall promptly execute and
deliver such applications, assignments, descriptions, and other instruments as
may be necessary or proper in the opinion of the Company to vest in the Company
title to the Intellectual Property and to enable the Company to obtain and
maintain the entire right and title to the Intellectual Property throughout the
world. The Consultant shall also render to the Company, at the Company's
expense, such assistance as the Company may require in the prosecution of
applications for said patents or reissues thereof, in the prosecution or defense
of interferences which may be declared involving any of said applications or
patents, and in any litigation in which the Company or its subsidiaries may be
involved relating to the Intellectual Property.
8.3 Copyrights. The Consultant agrees to, and hereby grants to the Company,
title to all copyrightable material first designed, produced, or composed in the
course of or pursuant to the performance of work under this Agreement, which
material shall be deemed "works made for hire" under Title 17, United States
Code, Section 1.01 of the Copyright Act of 1976. The Consultant hereby grants to
the Company a royalty-free, nonexclusive, and irrevocable license to reproduce,
translate, publish, use, and dispose of, and to authorize others so to do, any
and all copyrighted or copyrightable material created by the Consultant as a
result of work performed under this Agreement but not first produced or composed
by the Consultant in the performance of this Agreement, provided that the
license granted by this paragraph shall be only to the extent the Consultant now
has, or prior to the completion of work under this Agreement or under any later
agreements with the Company or its subsidiaries relating to similar work may
acquire, the right to grant such licenses without the Company becoming liable to
pay compensation to others solely because of such grant.
8.4 Patent Compensation. In consideration for the prompt execution and
delivery of applications, assignments, descriptions, or other instruments in
connection with any patents or patent applications the Company agrees to pay to
Consultant $1,000 for each United States patent issued in the name of Consultant
during the Consulting Period or within two years after termination of the
Consulting Period; provided that the design, invention, improvement, know-how or
technology forming the basis of such issued United States patent was conceived
and reduced to practice during the Consulting Period.
SECTION 9. REMEDIES
The Consultant acknowledges and agrees that the Company's remedy at law for
a breach or threatened breach of any of the provisions of Sections 5, 6, and 8
of this Agreement would be inadequate and, in recognition of this fact, in the
event of a breach or threatened breach by the Consultant of any of the
provisions of Sections 5, 6, and 8, the Consultant agrees that, in addition to
its remedy at law, at the Company's option, all rights of the Consultant under
this Agreement may be terminated, and the Company shall be entitled without
posting any bond to obtain, and the Consultant agrees not to oppose a request
for, equitable relief in the form of specific performance, temporary restraining
order, temporary or permanent injunction, or any other equitable remedy which
may then be available. The Consultant acknowledges that the granting of a
temporary injunction, temporary restraining order or permanent injunction merely
prohibiting the use of Proprietary Information would not be an adequate remedy
upon breach or threatened breach of Sections 5 and 6, and consequently agrees
upon any such breach or threatened breach to the granting of injunctive relief
prohibiting the design, development, manufacture, marketing or sale of products
and providing of services of the kind designed, developed, manufactured,
marketed, sold or provided by the Company or its subsidiaries during the term of
the Consultant's consulting relationship with the Company. Nothing contained in
this Section 9 shall be construed as prohibiting the Company from pursuing, in
addition, any other remedies available to it for such breach or threatened
breach.
SECTION 10. MISCELLANEOUS PROVISIONS
10.1 Assignment. This Agreement shall not be assignable by either party,
except by the Company to any subsidiary or affiliate of the Company or to any
successor in interest to the Company's business.
10.2 Binding Effect. The provisions of this Agreement shall be binding upon
and inure to the benefit of the heirs, personal representatives, successors, and
assigns of the parties.
10.3 Notice. Any notice or other communication required or permitted to be
given under this Agreement shall be in writing and shall be mailed by certified
mail, return receipt requested, postage prepaid, addressed to the parties at the
following addresses:
As to Consultant: Mark Daniel White
12547 66th Street, N.
Largo, FL 33733
As to Company: SwiftyNet.com, Inc.
201 E. Kennedy Blvd., Suite 520
Tampa, FL 33602
All notices and other communications shall be deemed to be given at the
expiration of three (3) days after the date of mailing. The address of a party
to which notices or other communications shall be mailed may be changed from
time to time by giving written notice to the other party.
10.4 Litigation Expense. In the event of a default under this Agreement,
the defaulting party shall reimburse the nondefaulting party for all costs and
expenses reasonably incurred by the nondefaulting party in connection with the
default, including without limitation attorney's fees. Additionally, in the
event a suit or action is filed to enforce this Agreement or with respect to
this Agreement, the prevailing party or parties shall be reimbursed by the other
party for all costs and expenses incurred in connection with the suit or action,
including without limitation reasonable attorney's fees at the trial level and
on appeal.
10.5 Waiver. No waiver of any provision of this Agreement shall be deemed,
or shall constitute, a waiver of any other provision, whether or not similar,
nor shall any waiver constitute a continuing waiver. No waiver shall be binding
unless executed in writing by the party making the waiver.
10.6 Applicable Law. This Agreement shall be governed by and shall be
construed in accordance with the laws of the state of Florida. Exclusive venue
for any action arising hereunder or in connection herewith shall lie in state
court in Alachua County, Florida.
10.7 Entire Agreement. This Agreement constitutes the entire Agreement
between the parties pertaining to its subject matter, and it supersedes all
prior contemporaneous agreements, representations, and understandings of the
parties. No supplement, modification, or amendment of this Agreement shall be
binding unless executed in writing by all parties.
Company: Consultant:
/s/ MARK DANIEL WHITE
SWIFTYNET.COM, INC. ______________________________________
/s/ Rachel Steele MARK DANIEL WHITE
By:__________________________________
President
Title:_________________________________