Exhibit 10.10 Agreement with Xxxxx Xxxx and Media 1 Group, LLC
AGREEMENT
This Agreement (the "Agreement") is made by and between Media 1 Financial Group
LLC (hereinafter "Media 1") and Xxxxx Xxxx, an individual, (hereinafter referred
to as Xxxxx Xxxx) jointly and severally with World Health Alternatives, Inc., a
Florida corporation, hereinafter "the Company." WITNESSETH:
WHEREAS, Xxxxx Xxxx, who is the sole officer, director and shareholder of Media
1 Financial Group LLC, holds an aggregate of 1,008,000 shares of the Company's
common stock;
WHEREAS, Xxxxx Xxxx has agreed to retire 608,000 of the shares held by him so
that he holds 400,000 shares of the Company in exchange for the Company
retaining the services of Media 1 to provide services to the Company; and
WHEREAS, Media 1 desires to provide the services to the Company as more fully
set forth herein;
NOW THEREFORE, in exchange for good and valuable consideration, the receipt of
which is hereby acknowledged, the parties agree as follows:
1. This Agreement supersedes all prior oral or written agreements between the
parties hereto.
2. Xxxxx Xxxx hereby agrees to retire 608,000 shares of the Company's common
stock held by him upon execution of this Agreement. Xxxxx Xxxx will have 400,000
remaining shares of the Company's common stock. Xxxxx Xxxx acknowledges that he
cannot directly or indirectly compensate any third party with the remaining
400,000 shares for providing investor relations or any other services of or for
the Company.
3. Fees. The Company shall pay to Media 1 for its services a fee of 858,000
shares of the Company's common stock ("the shares") which shall upon issuance
bear the following restrictive legend:
"The Shares Represented By This Certificate Have Not Been Registered Under The
Securities Act Of 1933, As Amended, Or Applicable State Securities Laws, And May
Not Be Sold, Transferred, Pledged, Or Hypothecated Without Either: i)
Registration Under The Securities Act Of 1933, As Amended, And Applicable State
Securities Laws, Or ii) Submission To The Corporation Of An Opinion Of Counsel,
Satisfactory To The Corporation That Said Shares And The Transfer Thereof Are
Exempt From The Registration Requirements Of The Securities Act Of 1933 And
Applicable State Securities Laws."
All Fees Shall Be Inclusive Of Costs And The Services Of Media 1 Shall Include
All Costs Of Providing Services Hereunder.
THE COMPANY SHALL REGISTER THE RESALE OF 608,000 OF THE 858,000 SHARES ON THE
COMPANY'S FORM SB-2 REGISTRATION STATEMENT. 250,000 OF THE 858,000 SHARES SHALL
BE RESTRICTED SHARES AND THE COMPANY SHALL HAVE NO OBLIGATION TO REGISTER THE
250,000 RESTRICTED SHARES.
4. Media 1 agrees to perform, as requested by the Company, investor relations
services for the Company. These services include, but are not limited to:
(a) Assist the Company in developing, creating and providing factual information
and in developing and implementing a strong market awareness for the Company and
its business;
(b) Develop and create an advertising campaign for the Company;
(c) Aid, advise and assist the Company in establishing a means of securing local
and nationwide media interest and coverage of the Company;
(d) Aid and assist the Company in developing a (user friendly) "web site";
(e) Aid, consult, prepare and deliver "due diligence" packages requested by and
furnished to registered broker/dealers and/or other institutional and/or fund
managers as requested by the Company;
(f) Create a Company profile and investment data sheet and present and deliver
via email/fax to over 50 stock newsletter writers and editors [newsletter
writers and editors shall be provided by Media 1];
(g) Host Company at least two conventions at the expense of Media 1;
(h) Review and prepare summaries of the financial and non-financial portions of
quarterly and annual reports of the Company, exclusive of any current, quarterly
or annual reports filed with U.S. Securities and Exchange Commission and/or
other regulatory agencies;
(i) Edit and distribute financial and general press releases as requested by the
Company;
(j) Draft and distribute collateral material regarding the Company; and
(k) Develop and distribute to over 500 sources and/or persons three media
articles regarding the Company each month.
5. Limitations of Services. Media 1's activities pursuant to this Agreement or
as contemplated by this Agreement do not constitute and shall not constitute
acting as a securities broker or dealer under Federal or State securities laws.
Further, Media 1 shall not receive any compensation of any form for introducing
or locating a potential investor or members of the financial community to the
Company.
Media 1 recognizes that certain responsibilities and obligations are imposed by
Federal and State securities laws and by the applicable rules and regulations of
stock exchanges, the National Association of Securities Dealers, in-house "due
diligence" or "compliance" departments of brokerage houses, etc. Accordingly,
Media 1 agrees as follows:
a. Media 1 shall NOT release any financial or other information or data about
the Company or the services to be provided hereunder without the written consent
and approval of the Company.
b. Media 1 shall NOT conduct any meetings with financial analysts without
informing the Company in advance of any proposed meeting, the format or agenda
of such meeting and the Company may elect to attend such meeting.
c. Media 1 shall NOT release any information or data about the Company to any
selected or limited person(s), entity, or group if Media 1 is aware that such
information or data has not been generally released or promulgated.
6. Non-exclusive Relationship and Time Commitment. Consultant shall commence to
provide the services set forth in this Agreement within ten days receipt of
written notice from the Company that Consultant's services are to begin (the
"Commencement Date"). Media 1 shall use its best efforts in the performance of
its services described herein. Nothing in this Agreement shall be construed as
limiting Media 1's right to represent other companies, except that Media 1
agrees not to represent any other person or entity which is in competition with
the Company unless Media 1 first obtains the Company's written consent. Media 1
agrees to provide one hundred (100) hours of services each month during the term
of this Agreement.
7. Term and Termination of the Engagement. The term of the engagement is for a
period of six (6) months. This engagement may be terminated by the Company
immediately upon written notice to the Company with or without cause and any
fees earned shall be prorated over the term of this Agreement.
8. Indemnity. Indemnification by Media 1. In connection with Media 1's
engagement hereunder, including modifications or future additions to this
engagement and the related activities prior to this date, Media 1 agrees that it
will indemnify, hold harmless and defend the Company and its affiliates, any
director, officer, agent or employee of the Company or any of its affiliates and
each other person, if any, controlling the Company or any of its affiliates and
each of their successors and assigns (collectively, the "Company Group") against
and in respect of any and all losses, damages, claims, obligations, demands,
actions, suits, proceedings, assessments, liabilities, judgments, recoveries and
deficiencies, costs and expenses (including, without limitation, reasonable
attorneys' fees and costs and expenses incurred in investigating, preparing,
defending against or prosecuting any litigation, claim, proceeding or demand),
all on an after-tax basis, less any amounts actually paid as insurance
reimbursement, of any kind or character (collectively, a "Company Loss"), (i)
related to, arising out of or result from (A) oral or written information
provided by or disseminated by Media 1, Media 1's employees or its other agents,
for use by Media 1 in connection with Media 1's performance of services under
this Agreement; (B) other action or failure to act by Media 1, its employees or
its other agents of Media 1 or (C) any breach of, or failure by Media 1 to fully
perform, or any inaccuracy in, any of the representations, warranties, covenants
or agreements of Media 1 in this Agreement or (ii) otherwise related to or
arising out of the engagement of Media 1 pursuant to this Agreement. The
Indemnity obligations under this Agreement shall survive the termination of this
Agreement for a period of two (2) years.
9. Except in accordance with the provisions of this Agreement, Xxxxx Xxxx and
Media 1 agrees, while this Agreement is in effect, not to, directly or
indirectly, whether in privately negotiated transactions or to the public in
open market transactions: Sell, transfer, pledge, encumber, hypothecate, assign
or otherwise dispose of directly or indirectly of any of the Company shares or
enter into any contract, option or other arrangement or understanding with
respect to the sale, transfer, pledge, encumbrance, hypothecation, assignment or
other disposition of, any of the Company shares; or Grant any proxies, deposit
any of the Company's shares into a voting trust or enter into a voting agreement
with respect to any of the Company's shares.
10. Xxxxx Xxxx and Media 1 may not sell, assign, transfer, exchange, gift,
devise, pledge, hypothecate, encumber or otherwise alienate or dispose of any of
the Company shares now owned by them or owned by them during the term of this
Agreement, or any right or interest therein, whether voluntarily or
involuntarily, by operation of law or otherwise, except in accordance with this
Agreement. Any such purported transfer in violation of any provision of this
Agreement and all actions by the purported transferor and transferee in
connection therewith shall be of no force or effect and the Company shall not be
required to recognize such purported transfer for any purpose, including but not
limited to dividend and voting rights.
11. Xxxxx Xxxx and Media 1 agree to sell the Company shares held by them only as
follows:
a. For the first full calendar month, after the execution of this Agreement,
Xxxxx Xxxx and Media 1 shall be allowed to sell 400,000 of the Company's common
shares.
b. Beginning the period from the second month after the execution of this
Agreement, and until the expiration of the ninth month after execution of this
Agreement, during each respective month of this period, Xxxxx Xxxx and Media 1
shall be allowed to sell the Company shares at their discretion up to the
aggregate amount not to exceed twenty five (25) percent of the prior calendar
month's trading volume as reported by the OTCBB.
c. After expiration of the ninth month after the date of execution of this
Agreement, Xxxxx Xxxx and Media 1 can sell the Company shares pursuant to the
terms of this Agreement.
d. With regard to each respective trading period that Xxxxx Xxxx and Media 1 may
sell the Company shares as defined herein, respectively, Xxxxx Xxxx and Media 1
may not carry over the difference between the amount of the Company shares that
Xxxxx Xxxx and Media 1 could have sold and any remaining amount not sold
("remaining amount"). Further, Xxxxx Xxxx and Media 1 will be not permitted to
aggregate remaining amount(s) to successive periods.
As an example of the foregoing:
Average trading volume for the second month was 100,000 the Company shares;
During the third month, Xxxxx Xxxx and Media 1 in the aggregate may sell 25% of
100,000 of the Company shares, which equals 25,000 of the Company shares;
Xxxxx Xxxx and Media 1 in the aggregate only sells 10,000 of the Company shares
during the third month;
Xxxxx Xxxx and Media 1 in the aggregate may not carry over or aggregate the
15,000 of the Company shares not sold (representing the difference between the
25% allowable trading amount and the amount he actually traded) to succeeding
months.
For purposes of this Agreement, the aggregate amount of shares sold pursuant to
this Agreement shall be the sum of the shares held by Xxxxx Xxxx and Media 1.
12. Xxxxx Xxxx and Media 1 in the aggregate agrees, while this Agreement is in
effect, to notify the Company promptly of the number of any of the Company
shares acquired by Xxxxx Xxxx and Media 1 after the date hereof. Such
notification by Xxxxx Xxxx and Media 1 shall be affected by Xxxxx Xxxx and Media
1 the day following his acquisition of such Company shares and in accordance
with the notice provisions of this Agreement. Xxxxx Xxxx and Media 1 in the
aggregate represents that Xxxxx Xxxx is not now an affiliate of the Company and
has not previously been an affiliate of the Company.
13. Acknowledgments and Representations.
(a) The Company recognizes and confirms that in performing its duties pursuant
to this Agreement, Media 1 will be using and relying upon data, material and
other information furnished by the Company, its employees and representatives
(the "Information"). The Company hereby agrees and represents that all
Information furnished to Media 1 in connection with this Agreement shall be
materially accurate and complete at the time furnished, and that if the Company
is aware that such Information, in whole or part, becomes materially inaccurate,
misleading or incomplete during the term of Media 1's engagement hereunder, the
Company shall so advise Media 1 and Media 1 shall correct any such inaccuracy or
omission. To the extent consistent with legal requirements, all Information,
unless publicly available or otherwise available to Media 1 without restriction
or breach of any confidentiality agreement, will be held by Media 1 in
confidence and will not be disclosed to anyone other than Media 1's agents and
advisors without the Company's prior written approval or used for any purpose
other than those referred to in this Agreement.
(b) The Company understands and agrees that in furnishing the Company with
advice and other services as provided in this Agreement, Media 1 and its
officers, directors and agents shall be liable to the Company, its affiliates or
its creditors as provided herein.
(c) The Company acknowledges that Media 1 has been retained solely as an advisor
to the Company, and not as an advisor to or agent of any other person, and that
the Company's engagement of Media 1 is not intended to confer rights upon any
persons not a party hereto (including shareholders, employees or creditors of
the Company) as against Media 1, Media 1's affiliates or their respective
directors, officers, agents and employees.
14. Media 1 represents and warrants to the Company that it will not cause, or
permit (a) any action to be taken which violates or (b) a failure to act, the
effect of which violates, any federal or state securities law.
15. Notices. All notices, requests, consents and other communications under this
Agreement shall be in writing and shall be delivered by hand or fax or mailed by
overnight courier or first class certified or registered mail, return receipt
requested, postage prepaid and properly addressed as follows:
If to Media 1 Capital Group and Xxxxx Xxxx:
Xxxxx Xxxx
00000 Xxxx X Xxxxxxx Xxxxx, Xxx. 000
Xxxxxxxxx, XX 00000
As to the Company:
World Health Alternatives, Inc.
000 Xxxx Xxxxxx Xxxx.
Xxxxxxxxxx, XX 00000
Any party may change its address for purposes of this provision by giving the
other party written notice of the new address in the manner set forth above.
Notice will be conclusively deemed to have been given when personally delivered,
or if given by mail, on the second day after being sent by overnight courier or
on the third day after being sent by first class, registered or certified mail,
or if given by fax, when confirmation of transmission is indicated by the
sender's fax machine.
16. Independent Contractor
Media 1 shall provide said services as an independent contractor, and not as an
employee or of any company affiliated with the Company. Media 1 has no authority
to bind the Company or any affiliate of the Company to any legal action,
contract, agreement, or purchase, and such action cannot be construed to be made
in good faith or with the acceptance of the Company; thereby becoming the sole
responsibility of Media 1. Media 1 is not entitled to any medical coverage, life
insurance, savings plans, health insurance, or any and all other benefits
afforded the Company employees. Media 1 shall be solely responsible for any
Federal, State or local taxes, and should the Company for any reason by required
to pay taxes at a later date, Media 1 shall reassure such payment is made by
Media 1 and not by the Company. Media 1 shall be responsible for all workers
compensations payments and herein holds the Company harmless for any and all
such payments and responsibilities related hereto.
17. Arbitration. All controversies, disputes or claims arising out of or
relating to this Agreement shall be resolved by binding arbitration. The
arbitration shall be conducted in accordance with the Commercial Arbitration
Rules of the American Arbitration Association. All arbitrators shall possess
such experience in, and knowledge of, the subject area of the controversy or
claim so as to qualify as an "expert" with respect to such subject matter. The
governing law for the purposes of any arbitration arising hereunder shall be in
Pennsylvania. The prevailing party shall be entitled to receive its reasonable
attorney's fees and all costs relating to the arbitration. Any award rendered by
arbitration shall be final and binding on the parties, and judgment thereon may
be entered in any court of competent jurisdiction.
18. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the state of Pennsylvania, without regard to the
conflicts of laws provisions thereof, and may not be amended or modified except
in writing signed by both parties.
19. Successors. This Agreement and all rights and obligations thereunder shall
be binding upon and inure to the benefit of each party's successors, but may not
be assigned without the prior written consent of the other party, which shall
not be unreasonably withheld or delayed.
20. Severability. If any provision of this Agreement shall be held or made
invalid by a statute, rule, regulation, decision of a tribunal or otherwise, the
remainder of this Agreement shall not be affected thereby and, to this extent,
the provisions of this Agreement shall be deemed severable.
21. Authorization. The Company represents and warrants that it has all requisite
power and authority, and has received all necessary authorizations, to enter
into and carry out the terms and provisions of this Agreement.
Dated February 25, 2003
Media 1 Financial Group LLC
By: Xxxxx Xxxx
Xxxxx Xxxx
Xxxxx Xxxx
Xxxxx Xxxx, an individual
The Company: World Health Alternatives, Inc.
By: Xxxxxxx XxXxxxxx
Xxxxxxx XxXxxxxx
Chief Executive Officer
