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CONSULTING AGREEMENT
This Agreement is effective as of the 25th day of November, 1996
by and between Telcom Wireless Cable T.V. Corporation, a Florida
corporation, (the "Company"), and Ocean Marketing Corp., a
Colorado corporation, or its assignees (the "Consultant").
WHEREAS, the Company is a publicly held company; and
WHEREAS, Consultant is in the business of assisting public
companies in public; and
WHEREAS, the Company desires to retain Consultant to provide
certain specified services for the Company.
NOW, THEREFORE, in consideration of the mutual covenants and
promises contained herein, the receipt and sufficiency of which
is hereby acknowledged, the parties hereby agree as follows:
1. Duties and Involvement
1.1. The Company hereby engages Consultant to provide
financial and public relations services (See attached
Exhibit "A"). Such services will generally include advice
to and consulting with the Company's management concerning
investor awareness of the Company and its products and/or
services. Consultant will provide additional services to
the Company, including broker relations, assisting in the
preparation and format of due diligence meetings, and
attendance at conventions and trade shows.
1.2. Consultant acknowledges that neither it nor any of its
employees or affiliates is an officer, director, or agent of
the Company, that in rendering advice or recommendations to
the Company it is not and will not be responsible for any
management decisions on behalf of the Company and that it is
not authorized or empowered to commit the Company to any
recommendation or course of action. The Company represents
that Consultant does not have, through stock ownership or
otherwise, the power to control the Company nor to exercise
any dominating influence over its management.
2. Terms
This Agreement shall continue until twelve (12) months
from date of execution.
3. Compensation
Upon execution of this agreement, as total and complete
consideration for the services to be provided and expenses
to be incurred (described below) by Consultant hereunder,
the Company will issue and deliver to Consultant One Hundred
Thousand (100,000) shares Common Stock of the Company (the
"Shares") which the Company shall immediately register for
free-trading under the Securities Act of 1933, as amended by
filing with the Securities and Exchange Commission a
registration statement relating to such shares on Form S-8.
The Company shall pay such complete consideration to the
Consultant by no later than five (5) days after the signing
of this agreement.
4. Payment of Expenses
Consultant agrees to pay for all costs and expenses incurred
by Consultant and its representatives and by third parties
engaged by it in connection with the performance of the
financial and public relations services provided for herein.
Consultant agress to spend not less than $250,000 and must
provide company with a statement.
5. Services not Exclusive
Consultant shall devote such of its time and effort
necessary to the discharge of its duties hereunder on a best
efforts basis. The Company acknowledges that Consultant is
engaged in other business activities and that it will
continue such activities during the term of this Agreement.
Consultant shall not be restricted from engaging in other
business activities during the term of this Agreement.
6. Confidentiality
Consultant acknowledges that it may have access to
confidential information regarding the Company and its
business. Consultant agrees that it will not, during or
subsequent to the term of this Agreement, divulge, furnish,
or make accessible to any person (other than with the
written permission of the Company) any knowledge or
information or plans of the Company with respect to the
Company or its business, including, but not limited to, the
products of the Company, whether in the concept or
development stage or being marketed by the company on the
effective date of this Agreement or during the term hereof.
7. Covenant not to Compete
During the term of this Agreement, Consultant warrants,
represents and agrees that it will not directly participate
in the information developed for and by the Company and will
not compete directly with the Company in the Company's
primary industry or related fields.
8. Registration of Securities
As provided hereinabove, the Company will immediately file
with the Securities and Exchange Commission a registration
statement on Form S-8 including the Shares. The Company
will provide manual exemption to comply with the various
states securities laws and regulations with respect to the
registration of the Shares. The Company undertakes to make
available for review and comment by Consultant, on a timely
basis and prior to submission with any regulatory agency,
copies of the registration statement.
8.1 At all times following registration of the Shares and
continuing for not less than twelve (12) months following
such registration, the Company shall maintain and be current
on all filings with the United States Securities and
Exchange Commission, appropriate state securities
departments and, as may be required, with the National
Association of Securities Dealers, Inc., the NASDAQ SmallCap
Market and/or national or regional stock exchanges necessary
to allow the Shares to be freely tradable in the public
market.
8.2. The Company agrees that during the term of this
Agreement it will not without providing at least 2 weeks
prior written notice, issue any common stock pursuant to
Regulation S of the General Regulations of the Securities
and Exchange Commission or any registration of the Company's
securities by means of a Form S-8 registration statement,
except for an S-8 Registration Statement for the Company's
Stock Option Plan already disclosed to Consultant in
writing.
9. Certain Representations and Warranties
In order to give comfort to Consultant, the company
represents and warrants the following:
9.1. The Company will furnish to Consultant, as
requested, all information concerning the Company which is
relevant to its past, current and planned operations,
including, without limitation (i) financial statements,
including current cash received and disbursed (ii) issuance
of stock, stock options or warrants, including the pricing
of such stock and stock rights (iii) terms or employment
agreements, including benefits of all types (iv) all Board
of Directors resolutions (v) all borrowing of any type (vi)
shareholder lists (vii) monthly reports from the Depository
Trust Corporation ("DTC") or similar organization and (viii)
all transactions among affiliates or controlling persons of
the Company.
9.2 The Company is authorized and has the full power to
issue such Shares. Such issuance or registration thereof
will not violate any agreement, covenant, understanding,
arrangement or otherwise with any party, broker, agent, or
entity.
10. Investment Representation
The Consultant represents and warrants that it has received
from Company access to all information available to the
Company concerning its condition, financial and otherwise,
its management, its business and its prospects. The
Consultant represents that it has received copies of the
Company's filings for the prior 12 months made under the
rules and regulations promulgated under the Securities Act
of 1933 as amended (the "Act") or the Securities Exchange
Act of 1934 as amended (the "Exchange Act"), if any, (the
"Disclosure Documents").
Consultant acknowledges that the acquisition of securities
to be issued to Consultant involves a high degree of risk.
Consultant represents that it and its advisors have been
afforded the opportunity to discuss the Company with its
management. The Company represents that it has and will
continue to provide Consultant with any information or
documentation necessary to verify the accuracy of the
information contained in the Disclosure Documents and will
promptly notify Consultant upon the filing of any
registration statement or other periodic reporting documents
filed pursuant to the Act or the Exchange Act. The Company
hereby represents that it does not currently have any of its
securities in registration (except for Post-Effective
Amendments to Form SB-2 and its obligation to register
Shares xxxx by Xxxxxx Xxxxx) and further agrees to refrain
from offering for sale any additional securities of the
Company and from filing any additional registration
statements during the term of this Agreement other than as
provided for herein without the consent of Consultant, which
shall not be unreasonably withheld.
11. Assignment
This Agreement may not be assigned by either party hereto
without the written consent of the other but shall be
binding upon the successors of the parties.
12. Arbitration
Any dispute, controversy or claim between the Company and
Consultant arising out of or related to this conducted in
accordance with the rules of the American Arbitration
Association then in effect. Agreement, the Option or breach
thereof, shall be settled by arbitration, which shall be
Any award shall be binding and conclusive for all purpose
thereof, may include injunctive relief, as well as orders
for specific performance and may be entered as a final
judgment in any court of competent jurisdiction. No
arbitration arising out of or relating to this Agreement
shall include, by consolidation or joinder or in any other
manner, parties other than the Company or Consultant and
other persons substantially involved in common question of
fact or law whose presence is required if complete relief is
to be afforded in arbitration. The cost and expenses of
such arbitration shall be borne in accordance with the
determination of the arbitrator and may include reasonable
attorney's fees. Each party hereby further agrees that
service of process may be made upon it by registered or
certified mail, express delivery or personal service at the
address provided for herein.
13. Indemnification
13.1 The company agrees to indemnify and hold harmless
Consultant and its agents and employees against any losses,
claims, damages or liabilities, joint or several, to which
Consultant or any such other person may become subject,
under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions, suits or proceedings in
respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact
contained in the Registration Statement, any preliminary
prospectus, the prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements
therein not misleading; and will reimburse the Consultant or
any such other person for any legal or other expenses
reasonably incurred by Consultant or any such other person
in connection with investigating or defending any such loss,
claim, damage, liability, or action, suit or proceeding;
provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement, or omission or
alleged omission from the Registration Statement, any
preliminary prospectus, the prospectus, or any such
amendment or supplement, in reliance upon and in conformity
with written information furnished to the Company by the
Consultant specifically for use in the preparation thereof.
This indemnity agreement will be in addition to any
liability which the Company may otherwise have. Consultant
indemnifies Company for 10b-5 information and for any
information representatives made to public not consistant
with Company's filings or approval.
13.2 Promptly after receipt by an indemnified party under
this Section of notice of the commencement of any action,
suit or proceeding, such indemnified party will, if a claim
in respect thereof is to be made against an indemnifying
party under this Section, notify the indemnifying party of
the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability
which it may have to any indemnified party otherwise than
under this Section. In case any such action, suit or
proceeding is brought against any indemnified party, and it
notified an indemnifying party of the commencement thereof,
the indemnifying party will be entitled to participate
therein, and, to the extent it may wish, jointly with any
other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such
indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any
legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof
other than reasonable costs of investigation.
14. Notices
All notices required or permitted to be given under with
Agreement shall be in writing and shall be express delivery
service) to the party to be notified. Notice to each party
shall be addressed to the deemed to have been duly given
upon delivery personally or by courier (such as FedEx or
similar attention of the officer at the address set forth
beneath the signature line, or to such other officer or
addresses as either party may designate upon at least ten
days' notice to the other party.
15. Governing Law
This Agreement shall be constructed by and enforced in
accordance with the laws of the State of Florida.
16. Entire Agreement
This Agreement contains the entire understanding and
agreement between the parties. There are no other
agreements, conditions or representations, oral or written,
express or implied, with regard thereto. This Agreement may
be amended only in writing signed by both parties.
17. Non-waiver
A delay or failure by either party to exercise a right under
this Agreement, or a partial or single exercise of that
right, shall not constitute a waiver of that or any other
right.
18. Counterparts
This Agreement may be executed in counterparts, each of
which shall be deemed an original but all of which together
shall constitute one and the same agreement.
19. Binding Effect
The provisions of this Agreement shall be binding upon the
parties, their successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement to be effective as of the day and year
first above written.
COMPANY: CONSULTANT:
Telcom Wireless Cable T.V. Corporation Ocean Marketing
Corp.
By: /s/ Xxxx X. Xxxxxxxx By: /s/ Xxxxxxx
X. Xxxxxxx
Xxxx X. Xxxxxxxx Xxxxxxx X. Xxxxxxx
Telcom Wireless Cable T.V. Corporation Ocean Marketing
Corp.
000 X. Xxxxxxxxx Xxx., Xxxxx 000 0000 Xxxx
Xxxxxx
Xxxxxxx Xxxxx, XX 00000 Xxx Xxxxxx Xxxxx, XX
00000
EXHIBIT A
PUBLIC
RELATIONS
PACKAGE
CORPORATE PROFILE AND FACT SHEET
Consultant will create and print a 2 page, 2 color broker
fact sheet and a 4 page, full color Company Profile. These
pieces are included in broker/dealer information packages
for dissemination to prospective investors.
DIRECT MAIL CAMPAIGN
A four page, four color direct mail lead generation piece
highlighting the company and benefits of owning the
company's stock will be created and mailed to 100,000
selected investors. This piece, printed on heavy gloss
stock, includes a postage paid business reply card plus an
identifying telephone number enabling investors to respond
immediately. Additionally, market makers' names and phone
numbers may be listed directly on the mailing piece for call-
in generation. Campaign services will include creative
writing, design, artwork, printing, list rentals, mail
handling, postage and business reply card coordination.
BROKER SOLICITATION CAMPAIGN
To generate interest in the company and its stock, a
specialized professional financial public relations services
will be provided via an on-going telemarketing campaign
soliciting new broker dealers, and direct personal telephone
follow-up to interface with on-line retail brokers currently
working with executives and investor relations personnel of
the company.
PRESS RELEASES
All company press releases will be written, wordsmithed, and
disseminated to newswire services and to the broker
community by fax and mail, telephone follow-up with on-line
brokers will also be provided. This will include all
writing, postage, shipping and other dissemination costs.
PUBLICATIONS
Personal Investing News
Xxx Xxxx (an editor of Sound Money Investor who also writes
for Xxxxxx'x and The Wall Street Journal) will write a two
page interview with a key officer of the company,
emphasizing the merits of the company. The advertorial will
also include the address and telephone number of the company
and/or the address and phone number for market makers of
the company's stock. In addition, a photograph of one of
the company's key executives or of the business itself will
appear on the front cover of Personal Investing News to draw
attention to the article on the company's story inside the
publication. Personal Investing News is published monthly
and mailed to 55,000 investors.
International, Money and Politics
The two page Personal Investing News story will be reprinted
for inclusion in International Money and Politics, a bi-
monthly magazine mailed to 30,000 investors.
Bull & Bear
The two page interview will be reprinted for inclusion in
Bull & Bear, a bi-monthly magazine mailed to 55,000
investors.
PRINT MEDIA ADVERTISING
An advertisement, geared to both brokers and investors, will
be created and inserted in a major financial and investment
related newspaper or magazine. The emphasis is to utilize
publications that target and deliver large numbers of
brokers and investors without the prohibitively high
advertising costs of the more famous media counterparts.
NEWSLETTER CAMPAIGN
The company will be presented to an extensive list of
financial newsletter editors and publishers in publications
which specialize in charting companies and presenting buy
recommendations.
CONSULTANT FEE
All expenses regarding the coordination of Consultant and/or
his representative's time and travel.
