EXHIBIT 10.12
INVESTOR RELATIONS AGREEMENT
This Agreement made as of the 15th day of September, 1999 (the "Effective
Date").
BETWEEN:
XXXXXXXXXXXX.XXX, INC., a company incorporated under the laws
of Florida having a business office at 0000 Xxxxxxxx Xxxxxxx,
Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
(the "Company")
AND:
NORTH STAR COMMUNICATIONS INC., a company incorporated under
the laws of British Columbia, having its registered and records
office at 2500 - 0000 X. Xxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxx Xxxxxxxx, X0X 0X0
(the "Contractor")
WHEREAS:
A. The common stock of the Company is currently quoted on the National
Association of Securities Dealers' Over-the-Counter Bulletin Board in the United
States;
B. The Company wishes to retain the Contractor to assist with its investor
relations and the Contractor has agreed to assist with the investor relations of
the Company in accordance with the terms of this agreement (the "Agreement");
NOW THEREFORE THIS AGREEMENT WITNESSES that, in consideration of the mutual
covenants and agreements herein contained, the parties hereto agree as follows:
1. Appointment and Authority of the Contractor
1.1 Appointment of the Contractor
The Company appoints the Contractor to perform the services for the benefit of
the Company hereinafter set forth, and the Company authorizes the Contractor to
exercise the powers provided under this Agreement. The Contractor accepts this
appointment on the terms and conditions herein set forth.
1.2 Independent Contractor
In performing the services hereunder, the Contractor shall be:
(a) an independent contractor and not an employee or agent of the Company,
except that the Contractor shall be the agent of the Company solely in
circumstances where the Contractor must be the agent to carry out its
obligations as set forth in this Agreement; and
(b) responsible for the management of its employees and without limiting
the generality of the foregoing, shall be responsible for payment to
the proper authorities of all unemployment insurance premiums, Canada
Pension Plan contributions, Worker's Compensation premiums, and all
other employment expenses for all of the Contractor's employees, and
the Contractor shall be responsible for deduction and remittance of
all income tax due from itself and its employees.
Nothing in this Agreement shall be deemed to require the Contractor to provide
its services exclusively to the Company and the Contractor hereby acknowledges
that the Company is not required and shall not be required to make any
remittances and payments required of employers by statute on the Contractor's
behalf and the Contractor shall not be entitled to the fringe benefits provided
by the Company to its employees
2. Duties of the Contractor
2.1 General
The Contractor shall:
(a) assist with the investor relations of the Company pursuant to the
terms and conditions of this Agreement;
(b) implement or cause to be implemented decisions of the Company at the
instruction of the Company;
(c) at all times, be subject to the direction of the Company and shall
keep the Company informed as to all matters concerning the activities
of the Contractor;
(d) meet the performance standards that may be reasonably prescribed by
the Company from time to time; and
(e) subject always to the general or specific instructions and directions
of the President or the board of directors (the "Directors") of the
Company, have full power and authority to provide investor relations
services on behalf of the Company except in respect of such matters
and duties as by law must be transacted or performed by the Directors
or senior officers of the Company.
2.2 The Contractor's Activities
The Contractor shall:
(a) conform to all lawful instructions and directions from time to time
given to it by the officers and Directors of the Company;
(b) devote sufficient time and attention to the business and affairs of
the Company to fully and properly carry out the services contemplated
by this Agreement;
(c) assist with co-ordinating and disseminating news and information of
the Company to the public and to the shareholders of the Company;
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(d) initiate and maintain contact with brokers and brokerage houses to
provide them with the news of the Company;
(e) arrange for the attendance or representation of the Company at
conferences of analysts;
(f) subject to the control and direction of the Company, prepare corporate
and product related materials for distribution to brokers, analysts,
and investment advisers, and distribute same to brokers, analysts, and
investment advisors;
(g) do all such acts and things as may be required to xxxxxx a positive
reputation of the Company and its securities in the market place;
(h) notify the Company of any major inquiry, complaint, or request made by
the general public or any regulatory authority and deliver to the
Company copies of any supporting papers received in connection with
such inquiry, complaint, and request;
(i) perform any other services or functions reasonably required by the
Company and within the general scope of the Contractor's duties as set
forth in this Agreement and otherwise operate and manage the
promotional activities of the Company in accordance with and as
limited by this Agreement;
(j) perform all other functions relating to promotional activities of the
Company as may be customary and usual for the exclusive expert
promotion of a company of the size and nature of the Company, in
accordance and as limited by this Agreement;
(k) well and faithfully serve the Company and use its best efforts to
promote the interests of the Company; and
(l) refrain from acting in any manner contrary to the best interests of
the Company or contrary to its duties.
2.3 Dissemination of Information
The Contractor:
(a) shall not disseminate or spread false or misleading information
relating to the Company to any person;
(b) shall disseminate any news and information which is specifically
authorized in writing by the Company; and
(c) will be relying upon information received from the Company, and will
so disclose this fact in all communications.
No act or omission by the Company shall act to waive the requirements of this
Section 2.3.
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2.4 Approval of President Required
The Contractor may not disseminate or distribute to the media, members of the
public, shareholders of the Company, prospective investors, members of the
investment or brokerage community, securities regulators, or any other third
party any of the Work Product (as defined in Section 5.1) or any other written
or printed information about the Company or its business, without the Company's
President first reviewing and approving the Work Product or other information
prior to dissemination or distribution.
2.5 Authority of the Contractor
The Company hereby authorizes the Contractor, subject to the other provisions of
this Agreement, to do all acts and things as the Contractor may in its
discretion deem necessary or desirable to enable the Contractor to carry out its
duties.
2.6 Limitations and Restrictions
The Contractor shall not be entitled to enter into any commitment, contractual
or other, binding upon, or pledge the credit of, the Company without the express
prior written consent of the President or the Directors.
2.7 Impossibility of Performance
If the performance of any duty of the Contractor set forth in this Agreement is
beyond the reasonable control of the Contractor, the Contractor shall
nonetheless be obliged to use its best efforts to perform such duty and to
notify the Company that the performance of such duty is beyond its reasonable
control.
2.8 Compliance with Laws
The Contractor agrees that it will perform the services under this Agreement in
accordance with all applicable laws including, but not limited to, the
Securities Act of 1933 and the Securities and Exchange Act of 1934, the rules
and regulations thereunder and the rules and policies of the Securities and
Exchange Commission, and the rules and policies of the NASD Stock Quotation
Service, as applicable.
2.9 Indemnity
The Contractor agrees to indemnify and save the Company harmless with respect to
any claim, suit, proceeding, or judgment, whether regulatory in nature or
brought in a court of competent jurisdiction arising from any breach of this
Agreement by the Contractor.
2.10 Other Activities
During the term of this Agreement, the Contractor shall not provide services to
any person, firm, or corporation or become involved in any activity, directly or
indirectly, with any person, firm, or corporation which does or could prevent or
hinder the Contractor from fulfilling its duties and obligations hereunder.
The Contractor shall not be precluded from acting in a function similar to that
contemplated under this Agreement or in any function similar to that
contemplated under this Agreement or in any other capacity for any other person,
firm, or company; provided such action shall not conflict with the Contractor's
duty to the Company and shall not prevent the Contractor from fulfilling its
obligations under this Agreement.
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2.11 Fiduciary Obligations
Without limiting the generality of the foregoing, during the term of this
Agreement, the Contractor shall not act in any manner contrary to the terms of
this Agreement, or contrary to the best interests of the Company.
3. Company's Agreements
3.1 Compensation of the Contractor
As compensation for the services rendered by the Contractor pursuant to this
Agreement, the Company agrees to pay to the Contractor a fee of Forty Thousand
(US$40,000) United States Dollars per month payable for each calendar month with
the first month's fee due and payable upon execution of this Agreement.
Thereafter, the monthly fee of US$40,000 is payable in advance of the month in
which services are to be rendered.
3.2 The Contractor's Expenses
The Company further agrees to pay the Contractor the sum of One Hundred and
Sixty Thousand (US$160,000) United States Dollars upon execution of this
Agreement. It is agreed that this payment represents an advance towards expenses
to be incurred pursuant to the investor relations program including reasonable
disbursements and GST thereon, which will include travel and accommodation
expenses, printing and mailing costs, long-distance charges, outside services,
and all other out of pocket expenses reasonably incurred by the Contractor in
the performance of its obligations pursuant to this Agreement; provided that the
Contractor will not incur any single expenditure in excess of US$10,000 without
obtaining the prior written consent of the Company. The Contractor agrees to
provide the Company with support documentation for the disbursements and
expenses incurred where procurable. A monthly accounting will be provided of the
expenses incurred and paid from the advance. Any amount of the advance not
utilized is fully refundable net of any un-reimbursed costs at the termination
of this Agreement.
3.3 Access to Company Information
The Company shall make available to the Contractor such information and data and
shall permit the Contractor to have access to such documents or premises as are
reasonably necessary to enable it to perform the services provided for under
this Agreement.
3.4 Indemnity
The Company will indemnify and save harmless the Contractor against any
liability to the Contractor resulting from any material misstatements,
misrepresentations, or omissions in information provided by the Company to the
Contractor and utilized by the Contractor in the performance of its services
hereunder.
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4. Duration of Service
4.1 Effective Date
This Agreement shall become effective as of the 15th day of September, 1999, and
shall remain in force, subject to earlier termination as provided herein, for a
term of six months ending March 15, 2000.
4.2 Termination
This Agreement may be terminated by:
(a) the Company, at any time, by giving the Contractor written notice of
such termination at least 30 days prior to the termination date set
forth in that notice;
(b) the Contractor, at any time, by giving the Company written notice of
such termination at least 30 days prior to the termination date set
forth in that notice;
(c) the Company without prior notice upon the occurrence of any default by
the Contractor, by the Company giving written notice to the Contractor
specifying the nature of such default. For the purposes of this
Agreement, a default by the Contractor shall be defined as the
occurrence of any one or more of the following:
(i) the Contractor fails to perform any of its services in the
manner or within the time required herein or commits or
permits a breach of or default of any of its duties,
liabilities, or obligations hereunder and fails to fully
cure or remedy such failure, breach, or default 10 days
after the Company delivers written demand for substantial
performance to the Contractor, which specifically identifies
the manner in which the Contractor has not performed the
services hereunder or the nature of the breach or default;
or
(ii) the Company, acting reasonably, determines that the
Contractor or any of its shareholders, directors, officers,
employees, or consultants (collectively, the "Contractor's
Associates") is acting or is likely to act in a manner
detrimental to the Company or has violated or is likely to
violate the confidentiality of any information relating to
the Company;
(iii) the Contractor or any of the Contractor's Associates commits
fraud or dishonesty or misconduct while in the performance
of the services hereunder; or
(iv) the Contractor becomes bankrupt or makes an arrangement or
composition with its creditors; or
(d) the Contractor, acting reasonably, immediately upon the failure of the
Company to pay the fee as provided for in Section 3.1 above.
On termination of the Contractor's services for any reason, the Contractor will
deliver to the Company all documents pertaining to the Company or its business,
including without limitation all correspondence, reports, contracts, data bases
related to the Company, and anything included in the definition of "Work
Product" set out in Section 5.1 below.
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4.3 Automatic Termination
If during the term of this Agreement the shares of the Company cease to be
quoted, are cease traded, or halted by regulatory authorities for a period of
more than 30 days, this Agreement will automatically terminate without liability
to either party, subject to the option of the Company to continue this
Agreement. Notwithstanding the foregoing, if the Contractor or any of the
Contractor's Associates directly or indirectly commits an act or omission,
voluntarily or involuntarily, that causes, directly or indirectly, the Company's
shares to be cease quoted, cease traded, or halted, then the Contractor will be
liable, under Section 2.9 hereof, for any damages, liabilities, costs, or
expenses suffered by the Company by reason of that act or omission.
4.4 Compensation of the Contractor on Termination
Upon termination of this Agreement, the Contractor shall be entitled to receive,
as its full and sole compensation in discharge of the Company's obligations to
the Contractor under this Agreement, all sums due and payable under this
Agreement to the date of termination and the Contractor shall have no right to
receive any further payments. The Company may offset against any payment owing
to the Contractor under this Agreement any damages, liabilities, costs, or
expenses suffered by the Company by reason of the fraud, negligence, or wilful
act of the Contractor.
4.5 Renewal of Agreement
The Company may renew this Agreement for a further six month term by providing
the Contractor with written notice of its intention to do so at least 30 days
prior to the expiration of the current term, but the Company shall be under no
obligation to renew this Agreement.
5. Confidentiality
5.1 Ownership of Work Product
All reports, documents, concepts, products, and processes, together with any
marketing schemes, business and sales contracts, and any business opportunities
prepared, produced, developed, or acquired, by or at the direction of the
Contractor, directly or indirectly, in connection with or otherwise developed or
first reduced to practice by the Contractor in the performance of its
obligations hereunder (collectively, the "Work Product") shall belong
exclusively to the Company, which shall be entitled, exclusively, to all right,
interest, profits, or benefits in respect thereof. No copies, summaries, or
other reproductions of any Work Product shall be made by the Contractor without
the express permission in writing of the Company.
5.2 Confidentiality
Except as authorized or required by its duties, the Contractor shall not reveal
to any person any of the trade secrets, secret or confidential operations,
processes or dealings, or any information concerning the organization, business,
finances, transactions, or other affairs of the Company of which it becomes
aware during the term of this Agreement. The Contractor shall keep secret all
confidential information entrusted to it and shall not use or attempt to use
this information in any manner which might injure or cause loss, either directly
or indirectly, to the Company's business. This restriction shall continue to
apply after the termination of this Agreement but shall cease to apply to
information which may come into the public domain, other than as a result of
disclosure by the Contractor.
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The Contractor shall comply with such directions as the Company shall make to
ensure the safeguarding or confidentiality of all such information.
6. Miscellaneous
6.1 Severability
Each provision of this Agreement is intended to be severable. If any term or
provision hereof shall be determined by a court or competent jurisdiction to be
illegal or invalid for any reason whatsoever, that provision shall be severed
from this Agreement and shall not affect the validity of the remainder of this
Agreement.
6.2 Waiver and Consents
No consent, approval, or waiver, express or implied, by either party hereto, to
or of any breach or default by the other party in the performance by the other
party of its obligations hereunder shall be deemed or construed to be a consent
or waiver to or of any other breach or default in the performance by such other
party of the same or any other obligations of such other party. The failure of a
party to declare the other party in default, irrespective of how long such
failure continues, shall not constitute a general waiver by such party of the
breach or default of the other and shall not be construed to waive or limit the
need for such consent or approval in any other instance.
6.3 Governing Law
This Agreement and all matters arising thereunder shall be governed by the laws
of the Province of British Columbia and, to the extent that the laws of Florida
govern the Company, by the laws of Florida.
6.4 Successors, Etc.
This Agreement shall enure to the benefit of and be binding upon each of the
parties and their respective heirs and successors.
6.5 Assignment
This Agreement may not be assigned by any other party.
6.6 Entire Agreement and Modifications
This Agreement constitutes the entire agreement between the parties and
supersedes all prior agreements and undertakings, whether oral or written,
relative to the subject matter hereof. To be effective any modification of this
Agreement must be in writing and signed by the parties.
6.7 Notices
All notices, requests, and communications required or permitted hereunder shall
be in writing and shall be sufficiently given and deemed to have been received
upon personal delivery or, if mailed, upon the first to occur of actual receipt
or 48 hours after being placed in the mail, postage prepaid, registered or
certified mail, return receipt requested, respectively addressed to the Company
or the Contractor as follows:
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To the Company:
Xxxxxxxxxxxx.xxx, Inc.
0000 Xxxxxxxx Xxxxxxx
Xxxxxxxxx, X.X. X0X 0X0
Attention: Xxxxx Xxxxx
-----------------------
To the Contractor:
North Star Communications Inc.
2500 - 0000 X. Xxxxxxxx Xxxxxx
Xxxxxxxxx, X.X. X0X 0X0
or such other address as may be specified in writing to the other party, but
notice of a change of address shall be effective only upon the actual receipt.
6.8 Time of the Essence
Time is of the essence.
6.9 Further Assurances
From time to time after the execution of this Agreement, the parties will make,
do, execute, or cause or permit to be made, done, or executed all additional
lawful acts, deeds, things, devices, and assurances in law whatsoever as may be
required to carry out the true intention and to give full force and effect to
this Agreement.
6.10 Counterparts
This Agreement may be executed in several counterparts, each of which will be
deemed to be an original and all of which will together constitute one
instrument.
6.11 Survival of Indemnities
The indemnities given under this Agreement will survive the termination of this
Agreement.
IN WITNESS WHEREOF this Agreement has been duly executed by the parties hereto
effective as of the day and year first above written.
XXXXXXXXXXXX.XXX, INC.
Per:
/s/ Xxxxx Xxxxx
----------------------------
Authorized Signatory
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NORTH STAR COMMUNICATIONS INC.
Per:
/s/ Xxxxx Xxxx
----------------------------
Authorized Signatory
