GULF ATLANTIC PUBLISHING, INC. AGREEMENT
This GULF ATLANTIC PUBLISHING, INC. Agreement (the "Agreement") is
entered into on this 22nd day of March, 1999, between Gulf Atlantic Publishing,
Inc., a Florida corporation ("GAP"), and iLink Telecom, Inc. a Nevada
corporation ("Client").
Whereas, GAP is in the business of planning, developing and
implementing advertising, marketing and promotional campaigns for corporations
and other business entities ("Advertising and Promotional Services");
Whereas, the Client desires to retain GAP to provide the Advertising
and Promotional Services, and GAP desires to provide such Advertising and
Promotional Services to Client, pursuant to the terms, conditions and provisions
contained in this Agreement;
Now, therefore, in consideration of the mutual promises contained
herein and other good and valuable consideration the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Advertising and Promotional Services. Subject to Client's compliance
with each of the representations, warranties and covenants and agreements made
by Client in this Agreement, GAP agrees to provide to Client the Advertising and
Promotional Services identified on Exhibit A which is attached hereto and
incorporated herein by reference, for the period commencing on the latter of
(the "Effective Date") the date that this Agreement is executed and delivered by
Client or the date that GAP receives payment of its fees as herein provided and
expiring on the 365th day following the effective date of this Agreement (the
"Term").
2. Obligations and Responsibilities of Client. As of the date hereof
and during the Term of this Agreement, Client agrees as follows.
1. Representation and Warranties.
Client represents and warrants to GAP that:
(1) Organization. Client is a corporation duly organized, validly
existing and in good standing under the laws of the State of its
incorporation and it is duly qualified to do business as a foreign
corporation in each jurisdiction in which it owns or leases property or
engages in business.
(2) Formal Action. Client has the corporate power and authority to
execute and deliver this Agreement and to perform each of its obligations
hereunder and this Agreement has been duly approved by Client's Board of
Directors.
(3) Valid and Binding Agreement. This Agreement has been duly executed
and delivered by Client and is the valid and binding obligation of Client
enforceable against it in accordance with its terms.
(4) No Violation. The execution, delivery and performance of this
Agreement does not and will not violate any provisions of the charter or
bylaws of Client or any agreement to which Client is a party or any
applicable law or regulation or order or decree of any court, arbitrator or
agency of government and no action of, or filing with, any governmental or
public body or authority is required in connection with the execution,
delivery or performance of this Agreement.
(5) Litigation. No action, suit or proceeding is pending against or
affecting the Client or any of its properties before any court, arbitrator
or governmental body or administrative agency and none of the persons
owning beneficially or of record more than 10% of the outstanding capital
stock of the Client or any of the directors or officers of Client is a
party to any action, suit or proceeding before any federal or state court,
arbitrator or governmental body or administrative agency (other than
routine traffic violations) and no such person has been a party to any such
proceedings for more than the past five years.
(6) Accuracy of Information. The information furnished by Client to
GAP regarding the business, operations, financial condition, including
financial statements, business plans and biographical information regarding
the Client's directors and officers (collectively referred to as the
"Information Package") is complete and accurate in all material respects
and does not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which
they were made not misleading.
2. Covenants and Agreements.
Client covenants and agrees to comply with the following covenants:
(1) Client Certification. Client acknowledges that it is responsible
for the accuracy and completeness of the Information Package and for all
other information furnished to GAP and for the accuracy and completeness of
the contents of all materials prepared by GAP for and on behalf of Client.
The Client hereby designates the individuals listed on Exhibit B attached
hereto and incorporated herein by reference as the duly authorized
representatives of Client for purposes of certifying to GAP the accuracy of
all documents, advertisements or other materials prepared by GAP for and on
behalf of Client. The Client agrees to promptly advise GAP in writing of
any condition, event, circumstance or act that would constitute a material
adverse change in the business, properties, financial condition or business
prospects of the Client or which would make any of the information
contained in the Information Package or in any report, advertorial or other
document prepared by GAP for and on behalf of Client misleading in any
material respect. Client hereby agrees that GAP and its directors,
officers, agents and employees may rely on the Information Package and on
all other information furnished by Client, and on each and every
certification provided by an authorized representative of Client, until GAP
is advised in writing by an authorized representative of Client that the
information previously furnished to GAP is inaccurate or incomplete in any
material respect. Client acknowledges that GAP shall have no obligation to
provide services hereunder until it has received a written certificate from
an authorized representative of Client as follows: GAP shall prepare proofs
and/or tapes of the agreed upon materials and information, as set for
dissemination, for the Client's review and approval and Client shall sign
and return such materials marking all corrections and changes that the
Client believes appropriate. Client acknowledges that GAP will make oral
representations based on the information furnished hereunder and the Client
authorizes such representations.
(2) Books and Records. Client shall maintain true and complete books,
records and accounts in which true and correct entries shall be made of its
transactions in accordance with generally accepted accounting principles
consistently applied ("GAAP").
(3) Financial and Other Information. Client agrees to furnish to GAP
the following information:
(i) Annual Financial Statements. As soon as practicable, and in
any event within 90 days after the close of the Client's fiscal year,
annual financial statements including a balance sheet, an income
statement, a statement of cash flows, and a statement of stockholder's
equity, and all notes thereto prepared in accordance with GAAP and
audited by an independent certified public accountant.
(ii) Quarterly Financial Statements. As soon as practicable, and
in any event within 45 days after the end of each fiscal quarter,
quarterly financial statements, including a balance sheet, a quarterly
and year-to-date income statement, a statement of cash flows, and a
statement of stockholder's equity, prepared by Client in accordance
with GAAP and certified by the chief financial officer and chief
executive officer of Client as fairly presenting, subject to normal
year-end audit adjustments, the Client's financial position as of and
for the periods indicated.
(4) GAP Reliance on Client's Full Disclosure. Client will provide, or
cause to be provided, to GAP all financial and other information requested
by GAP for the purpose of rendering its services pursuant to this
Agreement. Client recognizes and confirms that GAP will use such
information in performing the services contemplated by this Agreement
without independently verifying such information and that GAP does not
assume any responsibility for the accuracy or completeness of such
information. The persons executing this Agreement on behalf of Client
certify that there is no fact known to them which materially adversely
affects or may (so far as the Client's senior management can now reasonably
foresee) materially adversely affect the business, properties, condition
(financial or other) or operations (present or prospective) of the Client
which has not been set forth in written form delivered by Client to GAP.
The persons executing this Agreement on behalf of Client agree to keep GAP
promptly informed of any facts hereafter know to Client which materially
adversely affects or may (so far as the Client's senior management can now
reasonably foresee) materially adversely affect the business, properties,
condition (financial or other) or operations (present or prospective) of
Client. (5) Legal Representation. Client acknowledges and agrees that it
has been and will continue to be, represented by legal counsel experienced
in corporate and securities laws and Client acknowledges that it has been
advised as to the obligations imposed on it pursuant to such laws and
understands that it will have the obligation and responsibility to see that
all such laws are complied with at all times during the Term of this
Agreement.
3. Compensation. In consideration of the Advertising and Promotional Services
to be performed by GAP hereunder, Client hereby agrees to compensate GAP in
the manner and in the amount specified in Exhibit C which is attached
hereto and incorporated herein by reference thereto. In addition to the
compensation to be paid to GAP as provided in Exhibit C, Client shall
reimburse GAP promptly after a written request therefor accompanied by
appropriate documentation, for all reasonable (less than $1,00.00)
out-of-pocket expenses (including reasonable fees and disbursements of
GAP's counsel, if any) incurred in connection with providing services
hereunder or to the extent provided in Exhibit C.
4. Indemnity. Client acknowledges that it is responsible for the accuracy of
the Information Package and all other information provided to GAP and for
the contents of all materials, advertorials and other information prepared
by GAP for an on behalf of Client as provided herein and Client agrees to
indemnify GAP in accordance with the Indemnification Agreement set forth in
Exhibit D, which is attached hereto and incorporated herein by reference.
5. Relationship of the Parties. This Agreement provides for the providing of
marketing, promotional and advertising services by GAP to Client and the
provisions herein for compliance with financial covenants, delivery of
financial statements, and similar provisions are intended solely for the
benefit of GAP to provide it with information on which it may rely in
providing services hereunder and nothing contained in this Agreement shall
be construed as permitting or obligating GAP to act as a financial or
business advisor or consultant to Client, as permitting or obligating GAP
to participate in the management of client's business, as creating or
imposing any fiduciary obligation on the part of GAP with respect to the
provisions of services hereunder and GAP shall have no such duty or
obligation to client, as providing or counseling Client as to the
compliance by Client with any federal or state securities or other laws
effecting the services to be provided hereunder, or as creating any joint
venture, agency, or other relationship between the parties other than as
explicitly and specifically stated in this Agreement. The Client
acknowledges that it has had the opportunity to obtain the advice of
experienced counsel of its own choosing in connection with the negotiation
and execution of this Agreement, the provision of services hereunder and
with respect to all matters contained herein, including, without
limitation, the provisions of Section 4 hereof.
6. Survival of Certain Provisions. The Client's obligations to pay the fees
and expenses of GAP pursuant to Section 3 of this Agreement and to comply
with the indemnification provisions pursuant to Section 4 shall remain
operative and in full force and effect regardless of any termination of
this Agreement and shall be binding upon, and shall inure to the benefit
of, GAP and, in the case of the indemnity agreement, the persons, agents,
employees, officers, directors and controlling persons referred to in the
Indemnification Agreement, and their respective successors and assigns and
heirs, and no other person shall acquire or have any right under or by
virtue of this Agreement. All amounts paid or required to be paid under
Sections 3 and 4 of this Agreement shall be fully earned on the Effective
Date of this Agreement notwithstanding prior termination of this Agreement.
7. Termination. GAP shall have the right in its sole and absolute discretion
to terminate its obligations hereunder and to immediately cease providing
Advertising and Promotional Services pursuant to this Agreement if GAP, in
the exercise of its reasonable judgment, believes that the representations
and warranties made by Client hereunder are inaccurate in any material
respect or if Client breaches any of its covenants and agreements contained
herein or if any federal or state governmental agency or instrumentality
institutes an investigation or suit against Client or pertaining to the
services hereunder.
8. Non-Solicitation Covenant. Client agrees that it will not directly or
indirectly during the term of this Agreement or for three years following
the termination or expiration of this Agreement, either voluntarily or
involuntarily, for any reason whatsoever, recruit or hire or attempt to
recruit or hire any employee of GAP or of any of its affiliates or
subsidiaries, or otherwise induce any such employees to leave the
employment of GAP or of any of its affiliates or subsidiaries or to become
an employee of or otherwise be associated with Client or any affiliate or
subsidiary of Client. Client acknowledges that GAP and its affiliates and
subsidiaries have invested a significant amount of time, energy and
expertise in the training of their employees to be able to provide
Advertising and Promotional Services and Client therefore agrees that this
covenant is reasonable and agrees that the breach of such covenant is very
likely to result in irreparable injury to GAP, which is unlikely to be
adequately compensated by damages. Accordingly, in the event of a breach or
threatened breach by Client of this Section 8, GAP shall be entitled to an
injunction restraining Client and any affiliate, subsidiary or director or
officer thereof from recruiting, or hiring or attempting to recruit or hire
any employee of GAP or of any affiliate or subsidiary of GAP. Nothing
herein shall be construed as prohibiting GAP from pursuing any other
remedies available to GAP for such breach or threatened breach, including
recovery of damages from Client. The undertakings herein shall survive the
termination or cancellation of the Agreement for three years.
9. Miscellaneous.
A. Governing Law. This Agreement shall be governed by the laws
of the State of Florida applicable to contracts executed and performed in the
Circuit Court, Orange County, in the State of Florida (without regard to the
principles of conflicts of laws).
B. Entire Agreement. This Agreement and the Exhibits hereto
embody the entire agreement of the parties with respect to its subject matter.
There are no restrictions, promises, representations, warranties, covenants, or
undertakings other than those expressly set forth or referred to herein. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to its subject matter.
C. Amendments to be in Writing. This Agreement may be amended
only in a writing signed by all of the parties.
D. No Waivers by Course of Dealing; Limited Effect of Waivers.
No waiver shall be effective against any party unless it is in a writing signed
by that party. No course of dealing and no delay on the part of GAP in
exercising its rights shall operate as a waiver of that right or otherwise
prejudice GAP. GAP's failure to insist upon the strict performance of any
provision of this Agreement, or to exercise any right or remedy available to
GAP, shall not constitute a waiver by GAP of such provision. No specific waiver
by GAP of any specific breach of any provision of this Agreement shall operate
as a general waiver of the provision or of any other breach of the provision.
Client shall have no right to cure any breach except as specifically provided
herein.
E. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
F. Cumulation of Rights and Remedies. No right or remedy of
GAP under this Agreement is intended to preclude any other right or remedy and
every right and remedy shall coexist with every other right and remedy now or
hereafter existing, whether by contract, at law, or in equity.
G. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the parties and their successors and assigns.
Client shall not have any right to assign any of its rights or delegate any of
its obligations or responsibilities under this Agreement except as expressly
stated herein.
H. Payment of Fees and Expenses on Enforcing Agreement. In the
event of any dispute between the parties arising out of or related to this
Agreement or the interpretation thereof, at the trial level or appellate level,
the prevailing party shall be entitled to recover from the non-prevailing party
all costs and expenses, including reasonable fees and disbursements of counsel
which may be incurred in connection with such proceeding, without limitation,
including any costs and expenses of experts, witnesses, depositions and other
costs.
I. Notices. Any notice or other communication required or
permitted to be given hereunder shall be in writing, and shall be delivered to
the parties at the addresses set forth below (or to such other addresses as the
parties may specify by due notice to the others). Notices or other
communications shall be effective when received at the recipient's location (or
when delivered to that location if receipt is refused). Notices or other
communications given by facsimile transmission shall be presumed received at the
time indicated in the recipient's automatic acknowledgment. Notices or other
communications given by Federal Express or other recognized overnight courier
service shall be presumed received on the following business day. Notices or
other communications given by certified mail, return receipt requested, postage
prepaid, shall be presumed received 3 business days after the date of mailing.
Client: iLink Telecom, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX X0X 0X0
Attn: Xxxx Xxxxxxxxxxxxx
Fax: 000-000-0000
GAP:
Attn: Xxxxxx X. Xxxxxxxx, President
Fax: (000) 000-0000
J. Headings. The headings in this Agreement are
intended solely for convenience of reference. They shall be given no effect
in the construction or interpretation of this Agreement.
K. Severability. The invalidity or unenforceability of any
provision of this Agreement shall not impair the validity or enforceability of
any other provision.
In Witness Whereof, the parties have executed this Agreement as of the date
first above written.
Attest: iLink Telecom, Inc.
By: ------------------ By:
------------------------
Secretary Xxxx Xxxxxxxxxxxxx,
President
[Corporate Seal]
Attest: Gulf Atlantic Publishing, Inc.
By: By:
Secretary -------------------------
Xxxxxx X. Xxxxxxxx,
President
[Corporate Seal]
EXHIBIT A
Advertising and Promotional Services
The services to be provided are as follows:
A. A Four-Color Financial Sentinel - Featured advertorial mailing of 200,000
will be created of which a two page advertorial will be dedicated to the
Client.
B. A Four-Color Money-World Magazine - Featured advertorial mailing of 100,000
will be created of which a two or four page advertorial will be dedicated
to the Client.
Junior Page advertorial in four separate issues of Money-World Magazine
C. A Four-Color Financial Sentinel Special Project - Featured advertorial
mailing of two editions of 100,000 will be featured of which a four page
advertorial will be dedicated to the Clients.
The parties hereto by signing this Exhibit in the space provided below
signify their agreement regarding the service to be provided by GAP under the
Agreement.
iLink Telecom, Inc.
By: ________________________________
Xxxx Xxxxxxxxxxxxx , President
Gulf Atlantic Publishing, Inc.
By: ________________________________
Xxxxxx X. Xxxxxxxx, President
EXHIBIT B
Client hereby designates the following person or persons to act on its behalf
for the purposes set forth in Section 2.B.(1) of the Agreement.
------------------------------------ ---------------------------------
DIRECTOR (PLEASE SIGN) DIRECTOR (PLEASE PRINT)
------------------------------------ ---------------------------------
PRESIDENT (PLEASE SIGN) PRESIDENT (PLEASE PRINT)
------------------------------------ ---------------------------------
VICE PRESIDENT (PLEASE SIGN) VICE PRESIDENT (PLEASE PRINT)
EXHIBIT C
COMPENSATION
1. Client agrees to pay to GAP One Hundred Ten Thousand Dollars
($110,000.00) in cash on execution and delivery of the Agreement.
2. Client acknowledges that the consideration to be paid to GAP shall
be fully earned on the date that GAP commences providing services under the
Agreement regardless of whether the Agreement is terminated as provided in the
Agreement prior to completion of all services.
3. Client agrees to pay or reimburse GAP for all expenses arising out
of or related to the provision of services by GAP under the Agreement to the
extent provided in the Agreement and/or in Exhibit A thereto.
The parties hereto by signing this Exhibit in the space provided below
signify their agreement to the compensation provisions contained herein.
iLINK TELECOM, INC.
By: ___________________________
Xxxx Xxxxxxxxxxxxx , President
GULF ATLANTIC PUBLISHING, INC.
By: ______________________________
Xxxxxx X. Xxxxxxxx, President
EXHIBIT D
INDEMNIFICATION
This Indemnification Agreement constitutes part of the Gulf Atlantic
Publishing, Inc. Agreement (the Agreement) dated the 22nd day of March, 1999,
between Client (as defined in the Agreement) and GAP.
Client acknowledges and agrees that if, in connection with the services
or matters that are the subject of or arise out of such Agreement, GAP becomes
involved (whether or not as a named party) in any action, claim or legal
proceeding (including any governmental inquiry or investigation), Client agrees
to reimburse GAP for its reasonable legal fees, disbursements of counsel and
other expenses (including the cost of investigation and preparation) as they are
incurred by GAP. Client also agrees to indemnify and hold GAP harmless against
any losses, claims, damages or liabilities, joint or several, as incurred, to
which GAP may become subject in connection with the services or matters which
are the subject of or arise out of the Agreement; provided, however, that Client
shall not be liable under the foregoing indemnity in respect of any loss, claim,
damage or liability to the extent that a court having jurisdiction shall have
determined by a final judgment that such loss, claim, damage or liability is a
consequence of intentional fraudulent acts committed by GAP without the
knowledge and/or consent of Client. In the event that the foregoing indemnity is
unavailable by operation of law, then Client shall contribute to amounts paid or
payable by GAP in respect of such losses, claims, damages and liabilities in the
proportion that Client's interest bears to GAP's interest in the matters
contemplated by the Agreement. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law, or otherwise,
then Client shall contribute to such amount paid or payable by GAP in such
proportion as is appropriate to reflect not only such relative interests but
also the relative fault of Client on the one hand and GAP on the other hand in
connection with the matters as to which such losses, claims, damages or
liabilities relate and other equitable considerations.
Promptly after GAP's receipt of notice of the commencement of any
action or of any claim, GAP will, if a claim in respect thereof is to be made
against Client under this Indemnity Agreement, notify Client of the commencement
thereof. In case any such action or claim is brought against GAP, Client will be
entitled to participate therein and, to the extent that Client may wish, to
assume the defense thereof, with counsel satisfactory to GAP. After notice from
Client to GAP of Client's election to so assume the defense thereof, Client will
not be liable to GAP for indemnification as provided in the preceding paragraph
for any legal fees, disbursements of counsel or other expenses subsequently
incurred by GAP in connection with the defense thereof other than reasonable
costs of investigation; provided that GAP shall have the right to employ
separate counsel if, in the reasonable judgment of GAP's counsel, it is
advisable for GAP to be represented by separate counsel or if in the reasonable
judgment of GAP's counsel, Client is not vigorously and actively defending
against any such claim or claims, and in either such event the reasonable legal
fees and disbursements of such separate counsel shall be paid by Client.
The foregoing agreements shall apply to any modification of the
Agreement, shall remain in full force and effect following the completion or
termination of GAP's engagement under the Agreement and shall be in addition to
any rights that GAP may have at common law or otherwise. The agreements in this
Indemnification Agreement shall extend to and inure to the benefit of each
person, if any, who may be deemed to control GAP, be controlled by GAP or be
under common control with GAP and to GAP's, and to each such other person's
respective affiliates, directors, officers, employees and agents. This
Indemnification Agreement shall be binding on any successor of Client.
Client represents that the Indemnification Agreement contained herein
is the legal, valid, binding and enforceable obligation of Client, enforceable
against Client according to its terms.
This Indemnification Agreement shall be governed by, and construed in
accordance with, the laws of the State of Florida without regard to principles
of conflicts of law, and the forum for resolution of legal and interpretative
issues shall be the Federal District courts in the State of Florida.
The parties hereto by signing this Exhibit in the space provided below
signify their agreement to the indemnification provisions contained herein.
iLink Telecom, Inc.
By:
----------------------------------
Xxxx Xxxxxxxxxxxxx, President
Gulf Atlantic Publishing, Inc. .
By:
----------------------------------
Xxxxxx X. Xxxxxxxx, President
EXHIBIT E
ADDITIONAL SERVICE OPTION
1. Client has the option to purchase the following additional services from GAP:
A Two-Color Financial Sentinel Special Project - Featured
advertorial mailing of two editions of 150,000 will be
featured of which a four page advertorial will be dedicated to
the Client.
The first mailing of 150,000 will take place no later than
twenty-four (24) days from date Client exercises this option.
The second mailing of 150,000 will take place no later than
fifty-four (54) days from date Client exercises this option.
2. Client will inform GAP no later that July 15, 1999 of intent
to exercise this option. Compensation for this option will be
$225,000.00 paid in two equal installments on October 1st and
November 1st, 1999.
