EXHIBIT 10.7
AGREEMENT TO SERVE AS CORPORATE DIRECTOR
This agreement to serve as a corporate director (the "Agreement") is made
and entered into by and between The Next Pop Star, Inc., a Florida corporation
("TNPS"), and Francisco Del, a Florida resident ("Mr. Del").
PREAMBLE:
Whereas, Mr. Del was elected as a member of TNPS board of directors by
written consent in lieu of the annual meeting of stockholders, effective January
1st 2008 (the "Annual Meeting"); and
Whereas, TNPS has required, as a condition for service on its board of
directors, that all members enter into a form of agreement that delineates the
rights, duties and responsibilities of the members; and
Whereas, the Parties agree that this Agreement provides important
directives outlining the duties, obligations, responsibilities and rights that
are expected of members of TNPS Board of directors and Mr. Del desires to be
elected as a member of TNPS board of directors and to serve thereon in
compliance with the requirements of this Agreement and TNPS Certificate of
Incorporation and By-Laws:
Now, Therefore, intending to be legally bound, the Parties agree that since
Mr. Del has been elected as a member of TNPS board of directors at the annual
meeting of TNPS shareholders for the current year, he is bound by the following
obligations and shall have the following rights:
WITNESSETH:
Article I
TERM, RENEWALS, EARLIER TERMINATION
1.1 TERM.
(A) 1. Subject to the provisions set forth herein, the term of this Agreement
shall be deemed to commence immediately following Mr. Del's election to TNPS
board of directors at the Annual Meeting and shall continue until the latter of
January 1st 2009 or the election, qualification and assumption of office by Mr.
Del's successor as a member of TNPS board of directors, unless earlier
terminated as provided in TNPS certificate of incorporation or bylaws, or as
hereinafter set forth.
2. Notwithstanding anything in this agreement to the contrary, the term of
this Agreement will terminate if Mr. Del is not re-elected at the annual meeting
of stockholders next following the Annual Meeting.
(B) In the event that Mr. Del is re-elected or otherwise serves as a member of
TNPS board of directors after the annual meeting of stockholders next following
the Annual Meeting, then, unless a new agreement pertaining to his role as a
member of TNPS board of directors is entered
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into specifically superseding the provisions of this Agreement, this Agreement
shall be deemed to remain in effect for so long as Mr. Del serves as a member of
TNPS board of directors.
1.2 EARLIER TERMINATION.
(A) TNPS shall have the right to terminate this Agreement prior to the
expiration of its Term, subject to the provisions of Section 1.3, for the
following reasons:
(1) By vote of TNPS shareholders:
In accordance with Title XXXVI Chapter 607.0808 Removal of directors by
shareholders of Florida's Corporate Law (and except as provided therein) and
pursuant to Article II, Section 3(a) of the By-Laws of TNPS that at a meeting of
stockholders called expressly for this purpose, a director may be removed, with
or without cause, by the vote of the holders of 51% of the shares then entitled
to vote at an election of directors.
(2) Discontinuance of Business:
In the event that TNPS discontinues operating its business, this
Agreement shall terminate as of the last day of the month on which TNPS ceases
operation with the same force and effect as if such last day of the month were
originally set as the termination date hereof; provided, however, that a
reorganization of TNPS shall not be deemed a termination of its business.
(3) Death:
This Agreement shall terminate immediately on Mr. Del's death; however,
all accrued compensation at such time shall be promptly paid to Mr. Del's
estate.
1.3 FINAL SETTLEMENT.
Upon termination of this Agreement and payment to Mr. Del of all amounts
due his hereunder, Mr. Del or his representative shall execute and deliver to
TNPS on a form prepared by TNPS a receipt for such sums and a release of all
claims, except such claims as may have been submitted pursuant to the terms of
this Agreement and which remain unpaid, and shall forthwith tender to TNPS all
records, manuals and written procedures, as may be required by TNPS for the
continued conduct of its business.
Article II
PERFORMANCE OF DUTIES AS A DIRECTOR
2.1 PERFORMANCE OF DUTIES
(A) Mr. Del shall perform his duties as a director, including his duties as a
member of any committee of TNPS board of directors upon which he may serve,
pursuant to the requirements set forth in TNPS certificate of incorporation and
By-Laws (its "Constituent Documents"), in good faith, in a manner he reasonably
believes to be in the best interests of TNPS, and with such care as is legally
required for
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members of boards of directors under the laws of the State of Florida and the
United States Securities and Exchange Commission, (the "Commission") unless a
higher standard of care is specified in TNPS Constituent Documents.
(B) In performing his duties, Mr. Del shall be entitled to rely on information,
opinions, reports or statements, including financial statements and or financial
data, in each case prepared or presented by:
(1) One or more officers or employees of TNPS whom Mr. Del reasonably
believes to be reliable and competent in the matters presented;
(2) Legal counsel, public accountants or persons as to matters which Mr.
Del reasonably believes to be within such persons' professional or expert
competence; or
(3) A committee of TNPS board of directors upon which he does not serve,
duly designated in accordance with a provision of TNPS certificate of
incorporation or By-Laws, as to matters within its designated authority, which
committee Mr. Del reasonably believes to merit confidence.
(C) Mr. Del shall not be considered to be acting in good faith if he has
knowledge concerning the matter in question that would cause such reliance
described in Section 2.1(B) to be unwarranted.
(D) If Mr. Del is present at a meeting of TNPS board of directors at which
action on any corporate matter is taken, it shall be presumed that he assented
to the action taken unless he votes against such action or abstains from voting
in respect thereto because of an asserted conflict of interest.
(E) If Mr. Del is requested to provide comments on any corporate matters through
a written request delivered by hand, mail, fax or e-mail, then, unless she
affirmatively provides written comments thereto or specifies in a written
response that she is unable or unwilling to provide comments thereto, she shall
be presumed to have approved the matter as accurate, complete and not
misleading, and if she has indicated his inability or unwillingness to comment
on more than three occasions within any fiscal year, she shall be presumed to
have refused to perform his duties as a member of TNPS board of directors in a
manner justifying his removal therefrom under this Agreement
2.2 DIRECTOR CONFLICTS OF INTEREST
(A) Mr. Del nor any of his affiliates will enter into any contract or
transaction with TNPS unless the fact of such relationship or interest is
disclosed or known to TNPS board of directors or committee which authorizes,
approves or ratifies the contract or transaction and it is approved by a vote or
consent sufficient for the purpose without counting the vote or consent of Mr.
Del; and, if stockholder approval is required, the fact of such relationship or
interest is disclosed or known to the stockholders entitled to vote and they
authorize, approve or ratify such contract or transaction by vote or written
consent.
(B) Mr. Del may be counted in determining the presence of a quorum at a meeting
of TNPS board of directors or a committee thereof which authorizes, approves or
ratifies such contract or transaction.
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2.3 PERFORMANCE AND ATTENDANCE
(A) Mr. Del will serve on TNPS board of directors using his best efforts on
behalf of TNPS and its stockholders.
(B) Mr. Del shall use his best efforts to participate in a timely manner in all
meetings of TNPS board of directors or of committees thereof to which he has
been appointed or elected, and if unavailable in person, to make arrangements to
participate by teleconference or any legally available means.
(C) In the event that Mr. Del fails to participate in a meeting of TNPS board of
directors or of committees thereof to which he has been appointed or elected,
Mr. Del shall promptly acquaint himself with all matters transacted at such
meeting and if practical, shall provide the board of directors or committee
involved with supplemental input and advice on all such matters, and if
appropriate and possible, shall request reconsideration of any material matters
as to which his participation would have affected the result of actions taken.
(D) In the event that Mr. Del misses three (3) of the regular monthly meetings
of TNPS board of directors, or three (3) consecutive special meetings of the
board of directors, or three (3) consecutive meetings of any committee to which
she has been appointed or elected, Mr. Del will be deemed to have resigned from
the board of directors prior to the expiration of the term of this Agreement
based on an inability to dedicate required time to the affairs of TNPS, and this
Agreement shall be presumptively be deemed the instrument of such resignation.
(E) Mr. Del shall be responsible, together with the other members of the board
of directors, for review and approval prior to filing of all data that TNPS is
required to file with the Commission, with the United States Internal Revenue
Service (the "Service") and with comparable state and local agencies.
(F) If serving as a member of the regulatory affairs or audit committees, Mr.
Del shall be responsible for using reasonable efforts to assist its chairman to
assure that TNPS and all of its subsidiaries develop and implement information
gathering, retention and transmittal procedures that comply with all applicable
legal and auditing requirements, that TNPS and its subsidiaries promptly
transmit required data to TNPS auditors and legal counsel and that TNPS auditors
and legal counsel prepare and pass upon materials that TNPS is required to file
with the Commission or the Service, on a timely basis, adequate for review,
comment and correction by all appropriate personnel, including management of
TNPS and its subsidiaries, as well as the members of their boards of directors,
attorneys and advisors, at least three business days prior to the legally
mandated filing dates.
(G) If serving as a member of the audit committee, Mr. Del shall be responsible,
together with the other members of the audit committee, for suggesting auditor
candidates to TNPS board of directors and stockholders and for rejecting any
auditors that any member of the audit committee deems unsatisfactory based on
their qualifications, reputation, prices or geographic location, provided that
such member must specify in writing all reasons for such rejection and the
committee, voting as a whole, must pass upon such rejection by majority vote,
forwarding such result to the board of directors for appropriate action.
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2.4 RESIGNATION
Unless he is the sole serving member of TNPS board of directors, Mr. Del
may resign at any time by providing TNPS board of directors with written notice
indicating Mr. Del's intention to resign and the effective date thereof;
provided, however, that resignation, whether voluntary or presumptive (as
provided above) shall result in a forfeiture of all rights to compensation under
this Agreement, other than as to compensation that has accrued pursuant to the
provisions of this Agreement.
Article III
COMPENSATION
3.1 MEMBER COMPENSATION
(A) Mr. Del shall be compensated for his services as a member of TNPS board of
directors and committees, as follows:
(1) (a) For basic service as a member of our Company's board of directors,
5000 shares per month
(b) For service, as chairman of any committee, 2500 shares per month
(c) For service, on any other committee an additional 1250 shares per
month
(B) The foregoing compensation will be subject to the condition precedent that
Mr. Del comply on a timely basis with all personal reporting obligations to the
Commission pertaining to his role with TNPS and that Mr. Del serve in the
designated positions providing all of the services required thereunder prudently
and in good faith.
In addition to the compensation described above and in Section 3.1 (unless
comparable compensation is provided for under the terms of a separate employment
or consulting agreement) or such compensation cannot be paid because of
conflicts with applicable laws:
(C) In the event that Mrs. Del directly arranges or directly provides funding
for TNPS on terms more beneficial than those reflected in TNPS current principal
written financing agreements, Mr. Del shall be entitled at his election, to
either:
(1) A fee equal to 10% of such savings, on a continuing basis; or
(2) If equity funding is directly arranged for TNPS by Mrs. Del and TNPS is
not obligated to pay any other source of compensation in conjunction therewith,
other than the normal commissions charged by broker dealers in securities in
compliance with the compensation guidelines of the NASD, Mrs. Del shall be
entitled to a bonus in a sum equal to 10% of the net proceeds of such funding
after paying normal commissions.
(D) In the event that Mr. Del arranges for an acquisition by TNPS, then Mrs. Del
will be entitled to compensation in an amount, in shares of TNPS common stock,
equal to 10% of the net consideration
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paid by TNPS for such acquisition, provided that if such compensation is payable
to more than one person, then they shall share such compensation, pro rata,
based on the nature of their entitlement to such compensation.
3.2 EXEMPT NATURE OF SECURITIES TO BE ISSUED
The securities to be issued as compensation under this Agreement (the
"Securities") will be issued without registration under the provisions of
Section 5 of the Securities Act or the securities regulatory laws and
regulations of the State of Florida (the "Florida Act") pursuant to exemptions
provided under Section 4(6) of the Securities Act and comparable provisions of
the Florida Act;
(A) Mr. Del shall be responsible for preparing and filing any reports concerning
this transaction with the Commission and with Florida Division of Securities,
and payment of any required filing fees (none being expected);
(B) All of the Securities will bear legends restricting their transfer, sale,
conveyance or hypothecation unless such Securities are either registered under
the provisions of Section 5 of the Securities Act and under the Florida Act, or
an opinion of legal counsel, in form and substance satisfactory to legal counsel
to TNPS, is provided to TNPS General Counsel to the effect that such
registration is not required as a result of applicable exemptions thereto;
(C) TNPS transfer agent shall be instructed not to transfer any of the
Securities unless the General Counsel for TNPS advises it that such transfer is
in compliance with all applicable laws;
(D) Mr. Del is acquiring the Securities for his own account, for investment
purposes only, and not with a view to further sale or distribution; and
(E) Mr. Del or his advisors have examined information concerning TNPS contained
in the business plan, as well as TNPS books and records and have questioned TNPS
officers and directors as to such matters involving TNPS as Mr. Del deemed
appropriate.
3.3 INDEMNIFICATION.
TNPS will defend, indemnify and hold Mr. Del harmless from all liabilities,
suits, judgments, fines, penalties or disabilities, including expenses
associated directly therewith (e.g., legal fees, court costs, investigative
costs, witness fees, etc.) resulting from any reasonable actions taken by his in
good faith on behalf of TNPS, its affiliates or for other persons or entities at
the request of the board of directors of TNPS, to the fullest extent legally
permitted, and in conjunction therewith, shall assure that all required
expenditures are made in a manner making it unnecessary for Mr. Del to incur any
out of pocket expenses; provided, however, that Mr. Del permits TNPS to select
and supervise all personnel involved in such defense and that Mr. Del waives any
conflicts of interest that such personnel may have as a result of also
representing TNPS, its stockholders or other personnel and agrees to hold TNPS
harmless from any matters involving such representation, except such as involve
fraud or bad faith.
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Article Four
SPECIAL COVENANTS
4.1 CONFIDENTIALITY.
Mr. Del acknowledges that, in and as a result of his duties hereunder, he
will be developing for TNPS, making use of, acquiring and/or adding to,
confidential information of special and unique nature and value relating to such
matters as TNPS trade secrets, systems, procedures, manuals, confidential
reports, personnel resources, strategic and tactical plans, advisors, clients,
investors and funders; consequently, as material inducement to the entry into
this Agreement by TNPS, Mr. Del hereby covenants and agrees that she shall not,
at anytime during or following the terms of his service as a member of TNPS
board of directors, directly or indirectly, personally use, divulge or disclose,
for any purpose whatsoever, any of such confidential information which has been
obtained by or disclosed to his as a result of his association with TNPS or its
affiliates.
4.2 SPECIAL REMEDIES.
TNPS as a result of a breach by Mr. Del of the covenants or agreements contained
in this Article Four, and in view of the lack of an adequate remedy at law to
protect TNPS interests, Mr. Del hereby covenants and agrees that TNPS shall have
the following additional rights and remedies in the event of a breach or
threatened breach hereof:
(A) Mr. Del hereby consents to the issuance of a permanent injunction enjoining
his from any violations of the covenants set forth in this Article Four; and
(B) Because it is impossible to ascertain or estimate the entire or exact cost,
damage or injury which TNPS may sustain prior to the effective enforcement of
such injunction, Mr. Del hereby covenants and agrees to pay over to TNPS, in the
event he violates the covenants and agreements contained in this Article Four,
the greater of:
(1) Any payment or compensation of any kind received by his because of such
violation before the issuance of such injunction, or
(2) The sum of One Thousand ($1,000.00) Dollars per violation, which sum
shall be liquidated damages, and not a penalty, for the injuries suffered by
TNPS as a result of such violation. The Parties agree that such liquidated
damages are not intended as the exclusive remedy available to TNPS for any
breach of the covenants and agreements contained in this Article Four prior to
the issuance of an injunction, and the Parties recognize that the only adequate
remedy to protect TNPS from the injury caused by such breach would be injunctive
relief.
4.3 Cumulative Remedies.
Mr. Del hereby irrevocably agrees that the remedies described in Section
4.2 hereof shall be in addition to, and not in limitation of, any of the rights
or remedies to which TNPS is or may be entitled, whether at law or in equity,
under or pursuant to this Agreement.
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4.4 ACKNOWLEDGMENT OF REASONABLENESS.
Mr. Del hereby represents, warrants and acknowledges that he has carefully
read and considered the provisions of this Article Four and, having done so,
agrees that the restrictions set forth herein are fair and reasonable and are
reasonably required for the protection of the interests of TNPS, its officers,
other directors and employees; consequently, in the event that any of the
above-described restrictions shall be held unenforceable by any court of
competent jurisdiction, Mr. Del hereby covenants, agrees and directs such court
to substitute a reasonable, judicially enforceable limitation in place of any
limitation deemed unenforceable, and Mr. Del hereby covenants and agrees that if
so modified, the covenants contained in this Article Four shall be as fully
enforceable as if they had been set forth herein directly by the Parties. In
determining the nature of this limitation, Mr. Del hereby acknowledges,
covenants and agrees that it is the intent of the Parties that a court
adjudicating a dispute arising hereunder recognize that the Parties desire that
this covenant not to compete be imposed and maintained to the greatest extent
possible.
4.5 UNAUTHORIZED ACTS.
Mr. Del hereby covenants and agrees that she will not do any act or incur
any obligation on behalf of TNPS of any kind whatsoever, except as expressly
authorized by its board of directors or by its stockholders pursuant to duly
adopted stockholder action.
4.6 COVENANT NOT TO DISPARAGE.
Mr. Del hereby irrevocably covenants and agrees that during the term of
this Agreement and after its termination, she will refrain from making any
remarks that could be construed by anyone, under any circumstances, as
disparaging, directly or indirectly, specifically, through innuendo or by
inference, whether or not true, about TNPS, its constituent members, or its
officers, directors, stockholders, employees, agent or affiliates, whether
related to the business of TNPS, to other business or financial matters or to
personal matters.
Article V
AGREEMENT TO COMPLY WITH LEGAL RESTRICTIONS.
5.1 TNPS SECURITIES.
(A) Mr. Del currently does not beneficially own any other TNPS securities; and
has full power and authority to make, enter into and carry out the terms of this
Agreement.
(B) Mr. Del agrees that any TNPS securities that she purchases or with respect
to which she otherwise acquires record or beneficial ownership after the date of
this Agreement ("New TNPS Securities") shall be subject to the terms and
conditions of this Agreement to the same extent as if they were owned prior to
the effective date of this Agreement.
(C) Mr. Del has full power and authority to execute this Agreement, to make the
representations, warranties and covenants herein contained and to perform all of
the obligations hiseunder.
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(D) Mr. Del has no present plan or intention (a "Plan") to sell, transfer,
exchange, pledge or otherwise dispose of, including by means of a distribution
by a partnership to its partners, or a corporation to its stockholders, or any
other transaction which results in a reduction in the risk of ownership (any of
the foregoing being hereinafter referred to generically as a "Sale") of any of
the TNPS securities that Mr. Del currently owns or may acquire during the term
of this Agreement, or any securities that may be paid as a dividend or otherwise
distributed thereon with respect thiseto or issued or delivered in exchange or
substitution therefore.
(E) If any of Mr. Del's representations in this Agreement cease to be true at
any time during the term of this Agreement, Mr. Del will deliver to TNPS general
counsel a written statement to that effect, specifying the nature of the change
signed by Mr. Del.
5.2 TRANSFER OR ENCUMBRANCE.
(A) Mr. Del agrees not to transfer, sell, exchange, pledge or otherwise dispose
of or encumber any TNPS Securities acquired or to make any offer or agreement
relating thereto during the time that Mr. Del serves on TNPS board of directors
and for an additional period of 90 days after the term of this agreement,
except:
(1) During such periods following the filing by TNPS of reports with the
Commission as may be determined by the regulatory compliance committee of TNPS
board of directors to provide current information required to avoid violation of
restrictions under the Securities Act and the Securities and Exchange Commission
Exchange Act of 1934, as amended (the "Exchange Act"), against trading on inside
information.
(2) In full compliance with the requirements of:
(a) Rule 144 promulgated by the Commission under authority granted by
the Securities Act;
(b) Sections 13D and 16(a) of the Exchange Act, including requirements
pertaining to timely filing of Commission Forms 3, 4 and 5 or Schedule 13-D; and
(3) In full compliance with the procedures established by TNPS (including
requirements imposed upon its transfer agent) to assure compliance with the
foregoing.
(B) No transactions permitted pursuant to Section 5.2(A) shall be effected
until:
(1) Legal counsel representing Mr. Del (which legal counsel is reasonably
satisfactory to TNPS) shall have advised TNPS in a written opinion letter
satisfactory to TNPS and TNPS legal counsel, and upon which TNPS and its legal
counsel may rely, that no registration under the Securities Act is required in
connection with the proposed sale, transfer or other disposition and that all
requirements under the Exchange Act, including Sections 13 and 16 thereof have
been complied with; or
(2) A registration statement under the Securities Act covering the TNPS
stock proposed to be sold, transferred or otherwise disposed of, describing the
manner and terms of the proposed sale,
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transfer or other disposition, and containing a current prospectus, shall have
been filed with the Commission and made effective under the Securities Act; or
(3) An authorized representative of the Commission shall have rendered
written advice to Mr. Del (sought by Director-Nominee or Director-Nominee's
legal counsel, with a copy thereof and all other related communications
delivered to TNPS) to the effect that the Commission would take no action, or
that the staff of the Commission would not recommend that the Commission take
any action, with respect to the proposed disposition if consummated; or (4) TNPS
general counsel and president shall have specifically consented to the
transaction in writing pursuant to authority delegated in a specific resolution
of the regulatory affairs committee of TNPS board of directors.
(C) Mr. Del also understands and agrees that stop-transfer instructions will be
given to TNPS transfer agent with respect to certificates evidencing his TNPS
securities and that this will be placed on the certificates evidencing his TNPS
securities legends stating in substance: "The securities represented by this
certificate were issued without registration under the Securities Act of 1933,
as amended, or comparable state laws in reliance on the provisions of Section
4(1), 3(b) or 4(2) of such act, and comparable state law provisions or they have
been held by a person deemed a control person under Commission Rule 144 and
subject to reporting obligations under Section 13D of the Exchange Act and to
reporting obligations and trading restrictions under Section 16(a) of the
Exchange Act. These securities may not be transferred, pledged or hypothecated
unless they are first registered under applicable federal, state or foreign
laws, or the transaction is demonstrated to be exempt from such requirements to
the Company's satisfaction, and, all required reports pertaining thereto,
including Commission Forms 3, 4, 5 and 144 and Commission Schedule 13D have been
filed with the Commission."
5.3 NO PROXY SOLICITATIONS.
Mr. Del will not, and will not permit any entity under his control to:
(A) Solicit proxies or become a "participant" in a "solicitation" (as such terms
are defined in Regulation 14A under the Exchange Act) with respect to any
meetings of TNPS stockholders;
(B) Initiate a stockholders' vote or action by consent of TNPS stockholders with
respect to any stockholders' action; or
(C) Become a member of a "group" (as such term is used in Section 13(d) of the
Exchange Act) with respect to any voting securities of TNPS.
5.4 NO LIMITATION ON DISCRETION AS DIRECTOR.
This Article Five is intended solely to apply to the exercise by Mr. Del in
his individual capacity of rights attaching to ownership of TNPS securities, and
nothing herein shall be deemed to apply to, or to limit in any manner the
discretion of Mr. Del with respect to, any action which may be taken or omitted
by his acting in his fiduciary capacity as a member of TNPS board of directors
or any committee thereof.
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Article VI
MISCELLANEOUS
6.1 NOTICES.
(a) All notices, demands or other communications hereunder shall be in writing,
and unless otherwise provided, shall be deemed to have been given on the first
business day after mailing by registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:
To Mr. Del:
Francisco Del
5030 Champion Blvd.
G6 # 227;
Boca Raton, Florida 33496
Telephone (305)407-9052, Fax (305)359-5116
and, e-mail get2del@yahoo.com
To TNPS:
The Next Pop Star, Inc.
5030 Champion Blvd.
G6 # 227;
Boca Raton, Florida 33496
Telephone (305)407-9052, Fax (305)359-5116;
and, e-mail michelle@popstarzinc.com
Attention: Michelle Tucker, President;
or such other address or to such other person as any Party shall designate
to the other for such purpose in the manner hereinafter set forth.
(b) The decision by any Party not to use the services of legal counsel in
conjunction with this transaction shall be solely at that Party's own risk, each
Party acknowledging that applicable rules of the Florida Bar prevent TNPS
general counsel, who has reviewed, approved and caused modifications on behalf
of TNPS, from representing anyone other than TNPS in this transaction.
6.2 AMENDMENT.
(A) No modification, waiver, amendment, discharge or change of this Agreement
shall be valid unless the same is in writing and signed by the Party against
which the enforcement of said modification, waiver, amendment, discharge or
change is sought.
(B) This Agreement may not be modified without the consent of a majority in
interest of TNPS stockholders.
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6.3 MERGER.
(A) This instrument contains all of the understandings and agreements of the
Parties with respect to the subject matter discussed herein.
(B) All prior agreements, whether written or oral, are merged herein and shall
be of no force or effect.
6.4 SURVIVAL.
The several representations, warranties and covenants of the Parties
contained herein shall survive the execution hereof and shall be effective
regardless of any investigation that may have been made or may be made by or on
behalf of any Party.
6.5 SEVERABILITY.
If any provision or any portion of any provision of this Agreement, or the
application of such provision or any portion thereof to any person or
circumstance shall be held invalid or unenforceable, the remaining portions of
such provision and the remaining provisions of this Agreement or the application
of such provision or portion of such provision as is held invalid or
unenforceable to persons or circumstances other than those to which it is held
invalid or unenforceable, shall not be affected thereunder.
6.6 GOVERNING LAW.
This Agreement shall be governed by and construed, interpreted and enforced
in accordance with the laws of the State of Florida , except for any choice of
law provisions that would result in the application of the law of another
jurisdiction, and except for laws involving the fiduciary obligations of TNPS
officers and Director-Nominees, which shall be governed under Florida law.
6.7 THIRD PARTY RELIANCE.
Legal counsel to and accountants for the Parties shall be entitled to rely
upon this Agreement.
6.8 VENUE.
Any proceeding arising between the Parties in any matter pertaining or
related to this Agreement shall, to the extent permitted by law, be held in Palm
Beach County, Florida.
6.9 LITIGATION.
(A) In any action between the Parties to enforce any of the terms of this
Agreement or any other matter arising from this Agreement, the prevailing Party
shall be entitled to recover its costs and expenses, including reasonable
attorneys' fees up to and including all negotiations, proceedings and appeals,
whether or not formal proceedings are initiated.
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(B) In the event of any dispute arising under this Agreement, or the negotiation
thereof or inducements to enter into the Agreement, the dispute shall, at the
request of any Party, be exclusively resolved through the following procedures:
(1) (a) First, the issue shall be submitted to mediation before Mediation,
Inc., a mediation service in Palm Beach County, Florida, to be selected by lot
from four alternatives to be provided, two by TNPS and two by Mr. Del .
(b) The mediation efforts shall be concluded within ten business days
after their initiation unless the Parties unanimously agree to an extended
mediation period;
(2) In the event that mediation does not lead to a resolution of the
dispute, then at the request of any Party, the Parties shall submit the dispute
to binding arbitration before an arbitration service located in Palm Beach
County, Florida to be selected by lot, from four alternatives to be provided,
two by TNPS and two by Mr. Del.
(3) (a) Expenses of mediation shall be borne by TNPS, if successful
(b) Expenses of mediation if unsuccessful, and of arbitration shall be
borne by the Party whom the arbitration award is rendered.
(c) If the mediator of the arbitral award do not establish a prevailing
party, then the expenses of unsuccessful mediation and of arbitration shall be
borne equally by the Parties.
6.10 BENEFIT OF AGREEMENT.
(A) This Agreement may not be assigned by Mr. Del without the express written
consent of TNPS.
(B) Subject to the restrictions on transferability and assignment contained
herein, the terms and provisions of this Agreement shall be binding upon and
inure to the benefit of the Parties, their successors, assigns, personal
representative, estate, heirs and legatees.
6.11 Interpretation.
(A) The words "include," "includes" and "including" when used herein shall be
deemed in each case to be followed by the words "without limitation."
(B) The headings contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this Agreement.
(C) The captions in this Agreement are for convenience and reference only and in
no way define, describe, extend or limit the scope of this Agreement or the
intent of any provisions hereof.
(D) All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular or plural, as the identity of the Party or
Parties, or their personal representatives, successors and assigns, or the
context may require.
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(E) The Parties agree that they have been represented by counsel during the
negotiation and execution of this Agreement and, therefore, waive the
application of any law, regulation, holding or rule of construction providing
that ambiguities in an agreement or other document will be construed against the
party drafting such agreement or document.
6.12 FURTHER ASSURANCES.
The Parties hereby agree to do, execute, acknowledge and deliver, or cause
to be done, executed, acknowledged and delivered, and to perform all such acts
and deliver all such deeds, assignments, transfers, conveyances, powers of
attorney, assurances, receipts, records and other documents as may, from time to
time, be required herein to effect the intent and purposes of this Agreement.
6.13 STATUS.
Nothing in this Agreement shall be construed or shall constitute an agency,
employment, partnership, or joint venture relationship.
6.14 COUNTERPARTS.
(A) This Agreement may be executed in any number of counterparts.
(B) Execution by exchange of facsimile transmission shall be deemed legally
sufficient to bind the signatory; however, the Parties shall, for aesthetic
purposes, prepare a fully executed original version of this Agreement, which
shall be the document filed with the Commission.
6.15 WAIVER.
No waiver by any party hereto of any condition or of any breach of any
provision of this Agreement shall be effective unless in writing and signed by
each party hereto.
6.16 INDEMNIFICATION.
(A) Each Party hereby irrevocably agrees to indemnify and hold the other Party
harmless from any and all liabilities and damages (including legal or other
expenses incidental thiseto), contingent, current, or inchoate to which that
Party may become subject as a direct, indirect or incidental consequence of any
action by the indemnifying Party or as a consequence of the failure of the
indemnifying Party to act, whether pursuant to requirements of this Agreement or
otherwise.
(B) In the event it becomes necessary to enforce this indemnity through an
attorney, with or without litigation, the successful Party shall be entitled to
recover from the indemnifying Party all costs incurred including reasonable
attorneys' fees throughout any negotiations, trials or appeals, whether or not
any suit is instituted.
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6.17 CONSULTATION WITH COUNSEL.
Mr. Del has carefully read this Agreement and discussed its requirements
and other applicable limitations upon the sale, transfer or other disposition of
TNPS securities to the extent he felt necessary with his own legal counsel.
IN WITNESS WHEREOF, Mr. Del and TNPS have caused this Agreement to be
executed by themselves or their duly authorized respective officers, effective
as of the last date set forth below:
Signed, sealed and delivered
In Our Presence:
/s/ Francisco Del
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Francisco Del (Print)
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By: Francisco Del
/s/ Francisco Del
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Francisco Del (Print)
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By: Michelle Tucker, President
The Next Pop Star Inc.
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