EXHIBIT 10.66
SINCLAIR DAVIS TRADING GROUP
AGREEMENT
This Agreement (the "Agreement") is entered into on this 8th day of
December 1999, between Sinclair Davis Trading Corp., a New York Corporation, and
Nettaxi.com, a Nevada Corporation ("Client" or "Nettaxi").
WHEREAS, Sinclair Davis Trading Corp. is in the business of planning,
developing and implementing marketing and public relation services campaigns for
corporations and other business entities ("Public Relation Services");
WHEREAS, the Client desires to retain Sinclair Davis Trading Corp. to
provide the Public Relation Services, and Sinclair Davis Trading Corp. desires
to provide such Public Relation Services to Client, pursuant to the terms,
conditions and provisions contained in this Agreement for a period of two years.
NOW, THEREFORE, in consideration of the mutual promises contained herein
and other good and valuable consideration the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. Public Relation Services.
(a) Subject to Client's compliance with each of the covenants and agreements
made by Client in this Agreement, Sinclair Davis Trading Corp. agrees to provide
to Client with Public Relation Services for the period commencing on the latter
of the date that this Agreement is executed and delivered by Client or the date
that Sinclair Davis Trading Corp. receives payment of its fees as herein
provided (the "Effective Date") and expiring two (2) years following the
effective date of this Agreement (the "Term").
1
(b) Sinclair Davis Trading Corp. agrees to send information packages to
various brokerage firms and brokers; develop and coordinate a net media
strategy; and be available for consultations regarding mergers, acquisitions and
business development. On a quarterly basis, Sinclair Davis Trading Corp. shall
provide the client with a summary of its activities rendered hereunder.
2. Representations and Warranties of Client. As of the date hereof and
during the Term of this Agreement, Client represents and warrants to Sinclair
Davis Trading Corp. that:
(a) Organization. Client is a corporation duly organized, validly existing
and in good standing under the laws of the State of its Incorporation and it is
duly qualified to do business as a foreign corporation in each jurisdiction in
which it owns or leases property or engages in business.
(b) Formal Action. Client has the corporate power and authority to execute
and deliver this Agreement and to perform each of its obligations hereunder and
Client's Board of Directors has duly approved this Agreement.
(c) Valid and Binding Agreement. This Agreement has been duly executed and
delivered by Client and is the valid and binding obligation of client
enforceable against it in accordance with its terms.
(d) No Violation. The execution, delivery and performance of this Agreement
does not and will not violate any provisions of the charter of bylaws of Client
or any agreement to which Client is a party or any applicable law or regulation
or order or decree of any court, arbitrator or agency of government and no
action of, or filing with, any governmental or public body or authority is
required in connection with the execution, delivery or performance of this
Agreement.
(e) Litigation. Except as the Company has disclosed in its public filing
with the Securities and Exchange Commission, there is no action, suit or
proceeding which could reasonably be expected to have a material adverse effect
on Client, is pending or threatened against the client.
(f) Accuracy of Information. The information furnished by Client to
Sinclair Davis Trading Corp. regarding the business, operations, financial
condition, including financial statements, business plans and biographical
information regarding the Client's directors and officers (collectively referred
to as the "Information Package") is complete and accurate in all material
respects and does not contain any untrue statement of a material fact or admit
to state any materials fact required to be stated therein or necessary in order
to make the statement therein, in light of the circumstances under which they
were not misleading.
3. Covenants and Agreements of Client. Client covenants and agrees to
comply with the following covenants:
(a) Client Certification. Client acknowledges that it is responsible for
the accuracy and completeness of the Information Package and for all other
information furnished to Sinclair Davis Trading Corp. The Client agrees to
promptly advise Sinclair Davis Trading Corp. in writing of any condition, event,
circumstance or act that would constitute a material adverse change in the
business, properties, financial condition or business prospects of the Client or
which would make any of the information contained in the Information Package or
2
in any report or other document prepared by the Sinclair Davis Trading Corp. for
and on behalf of Client misleading in any material respect. Client hereby
agrees that Sinclair Davis Trading Corp. and its directors, officers, agents and
employees may rely on the Information Package and on all other information
furnished by representative of Client, until Sinclair Davis Trading Corp. is
advised in writing by an authorized representative of Client that the
information previously furnished to Sinclair Davis Trading Corp. in inaccurate
or incomplete in any material respect.
(b) Books and Records. Client shall maintain true and complete books,
records and accounts in which true and correct entries shall be made of its
transactions in accordance with generally accepted accounting principles
consistently applied ("GAAP").
(c) Financial and Other Information. Client agrees to furnish to Sinclair
Davis Corp. the following information:
(1) Annual Financial Statements. As soon as practicable, and in any event
within 90 days after the close of the Client's fiscal year, annual financial
statements, including a balance sheet, an income statement, a statement of cash
flows, and a statement of stockholder's equity, and all notes thereto prepared
in accordance with GAAP and audited by an independent certified public
accountant.
(2) Quarterly Financial Statements. As soon as practicable, and in any
event within 45 days after the end of each fiscal quarter, quarterly financial
statements, including a balance sheet, a quarterly and year-to-date income
statement, a statement of cash flows, and a statement of stockholder's equity,
prepared by Client in accordance with GAAP and certified by the Chief Financial
Officer and Chief Executive Officer of Client as fairly presenting, subject to
normal year-end audit adjustments, the Client's financial position as of and for
the periods indicated.
(d) Sinclair Davis Trading Corp. Stock's Reliance on client's Full
Disclosure. Client will provide, or cause to be provided, to Sinclair Davis
Trading Corp., all financial and other information requested by Sinclair Davis
Trading Corp. for the purpose of rendering its services pursuant to this
Agreement. Client recognizes and confirms that Sinclair Davis Trading Corp.
will use such information in performing the services contemplated by this
Agreement without independently verifying such information, and that Sinclair
Davis Trading Corp. does not assume any responsibility for the accuracy or
completeness of such information. The persons executing this Agreement on
behalf of Client certify that there is no fact known to them which materially
adversely affects or may (so far as the Client's senior management can now
reasonably foresee) materially adversely affect the business, properties,
condition (financial or other) or operations (present or prospective) of the
Client which has not been set forth in written form delivered by Client to
Sinclair Davis Trading Corp. The persons executing this Agreement on behalf of
Client agree to keep Sinclair Davis Trading Corp. promptly informed of any facts
hereafter known to Client which materially adversely affects or may (so far as
Client's senior management can now reasonably foresees) materially adversely
affect the business, properties, condition (financial or other) or operations
(present or prospective) of Client.
(e) Indemnity. Client acknowledges that it is responsible for the accuracy
of the Information Package and all other information provided to Sinclair Davis
Trading Corp. and for the contents of all materials and other information
prepared by Sinclair Davis Trading Corp. and for the contents of all materials
and other information prepared by Sinclair Davis Trading Corp. for and on behalf
of Client. Client agrees to indemnify Sinclair Davis Trading Corp. and hold it
harmless from all claims, actions, suits of any kind alleging the subject matter
of this Agreement, including attorneys fees.
(f) Relationship of the Parties. This Agreement provides for the providing
of marketing and public relation services by Sinclair Davis Trading Corp. to
Client and the provisions herein for compliance with financial covenants,
delivery of financial statements, and similar provisions are intended solely for
the benefit of Sinclair Davis Trading Corp. to provide it with information on
which it may rely in providing services hereunder and nothing contained in this
Agreement shall be construed as permitting or obligating Sinclair Davis Trading
Corp. to act as financial or business or consultant to Client, as permitting or
obligating Sinclair Davis Trading Corp. to participate in the management of
Client's business, as creating or imposing any fiduciary obligations on the part
of Sinclair Davis Trading Corp. with respect to the provisions of services
hereunder and Sinclair Davis Trading Corp. shall have no such duty or obligation
to Client, as providing or counseling Client as to the compliance by Client with
3
any federal or state securities or other laws affecting the services to be
provided hereunder, or as creating any joint venture, agency, or other
relationship between the parties other than as explicitly and specifically
stated in this Agreement. The Client acknowledges that is has had the
opportunity to obtain the advice of experienced counsel of its own choosing in
connection with the negotiation and execution of this Agreement, the provision
of services hereunder and with respect to all matters contained herein.
4. Compensation. The Client agrees to pay Sinclair Davis Trading Corp. the
following fees for its services rendered hereunder:
(a) 350,000 shares of Common Stock 30 days following the date of execution
of this Agreement with a registration rights agreement providing Sinclair Davis
Trading Corp. one demand registration which may be used by Sinclair Davis at any
time during the next five years or registration rights on the next registration
statement filed by the Company.
5. All amounts paid or required to be paid under this Agreement shall be
fully earned on the Effective Date of this Agreement notwithstanding subsequent
delivery of the share certificates.
6. Two Way Termination. Sinclair Davis Trading Corp. and Nettaxi.com shall
have the right in its sole and absolute discretion to terminate its obligation
hereunder and to immediately cease providing Public Relations Services pursuant
to this Agreement if Sinclair Davis Trading Corp. in the exercise of its
reasonable judgement, believes that the representations and warranties made by
Client hereunder are inaccurate in any material respect or if Client breaches
any of its covenants and agreements contained herein or if any federal or state
governmental agency or instrumentally instituted an investigation of suit
against Client or pertaining to the services under.
7. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by the laws of the
State of New York.
(b) Entire Agreement. This Agreement embodies the entire agreement of the
parties with respect to its subject matter. There are no restrictions,
promises, representations, warranties, covenants, or undertakings other than
those expressly set forth or referred to herein.
4
(c) Amendments to be in Writing. This Agreement may be amended only in
writing signed by all of the parties.
(d) No Waivers by Course of Dealing; Limited Effect of Waivers. No waiver
shall be effective against any party unless it is in writing signed by that
party. No course of dealing and not delay on the part of Sinclair Davis Trading
Corp. in exercising its rights shall operate as a waiver of that right or
otherwise prejudice Sinclair Davis Trading Corp. Sinclair Davis Trading Corp.'s
failure to insist upon the strict performance of any provision of this
Agreement, or to exercise nay right or remedy available to Sinclair Davis
Trading Corp. Sinclair Davis Trading Corp. shall not constitute a waiver by
Sinclair Davis Trading Corp. of such provision. No specific waiver by Sinclair
Davis Trading Corp. or any specific breach of any provision of this Agreement
shall operate as a general waiver of the provision or of any other breach of the
provision.
(e) Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, but al of which together shall
constitute one and the same instrument.
(f) Circulation of Rights and Remedies. No right or remedy of Sinclair
Davis Trading Corp. under this Agreement is intended to preclude any other right
or remedy and every right and remedy shall coexist with every other right and
remedy now or hereafter existing whether by contract, at law, or in equity.
(g) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the parties and their successors and assigns. Client shall
not have any right to assign any of its rights or delegate any of its
obligations or responsibilities under this Agreement except as expressly stated
herein.
(h) Payment of Fees and Expenses on Enforcing Agreement. In the event of
any dispute between the parties arising out of or related to this Agreement or
the interpretation thereof, at the trial level or appellate level, the
prevailing party shall be entitled to recover from the non-prevailing party of
all costs and expenses, including reasonable fees and disbursements of counsel
which may be incurred in connection with such proceeding, without limitations,
including any costs and expenses of experts, witnesses, depositions and other
costs.
5
(i) Notices. Any notice or other communication required or permitted to be
given hereunder shall be in writing, and shall be delivered to the parties at
the addresses set forth below (or to such other addresses as the parties may
specify by due notice to the others). Notices or other communications shall be
effective when received at the recipient's location (or when delivered to that
location if receipt is refused). Notices or other communications given by
facsimile transmission shall be presumed received on the following business day.
Notices or other communications given by certified mail, return receipt
requested, postage prepaid, shall be presumed received 3 business days after the
date of Mail.
(j) Headings. The headings in this Agreement are intended solely for the
conveniences of reference. They shall be given no effect in the construction or
interpretation of this Agreement.
(k) Severability. The invalidity or unenforceability of any provision of
this Agreement shall not impair the validity or enforceability of any other
provision.
In Witness Whereof, the parties have executed this Agreement as of the date
first above written.
NETTAXI.COM
By: /s/ Robert A. Rositano, Jr.
-----------------------------
Chief Executive Officer
SINCLAIR DAVIS TRADING CORP.
By: /s/ Robert Shatles
-----------------------------
President
6
SINCLAIR-DAVIS TRADING CORP.
February, 27, 2000
Mr. Robert Rositano
Nettaxi.com, Inc.
1696 Dell Avenue
Campbell, Ca 95008
Dear Rob,
This letter is to confirm that Sinclair-Davis Trading Corp. has been
retained for an additional six(6) months of the original agreement dated the 8th
of December 1999. The compensation agreed for the additional six (6) months is
an additional 175,000 shares of Nettaxi.com, Inc. common stock. This stock will
have one demand registration which may be used by Sinclair-Davis at any time
during the next five years or registration rights on the next registration
statement filed by the Company.
NETTAXI.COM
By: /s/ Robert A. Rositano
-----------------------
Chief Executive Officer
Sinclair-Davis Trading Corp.
By: /s/ Robert Shatles
-----------------------
President