Exhibit 10.9
MARKET ACCESS PROGRAM
MARKETING AGREEMENT
THIS MARKET ACCESS PROGRAM MARKETING AGREEMENT (the "Agreement") is made and
entered into as of the 1st day of June 2002, by and between Xxxxxx Capital
Group, Inc., with offices at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000
(hereinafter referred to as "LCG") and a21, Inc., with offices at Xxx
Xxxxxxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxxxx, XX 00000 (hereinafter referred to
as the "Company").
WITNESSETH:
For and in consideration of the mutual promises and covenants contained herein,
the parties hereto agree as follows:
1. ENGAGEMENT. The Company hereby hires and employs LCG as an independent
contractor, and LCG does hereby accept its position as an independent
contractor to the Company, upon the terms and conditions hereinafter set
forth.
2. TERM. This Agreement shall be for 12 months (cancelable on two (2) months
advance notice) from the date hereof.
3. DUTIES AND OBLIGATIONS OF LCG. LCG shall have the following duties and
obligations under this Agreement:
3.1 Establish a financial public relations methodology designed to
increase awareness of the Company within the investment community.
3.2 Assist the Company in the accurate communication and dissemination
of its business plan as well as other relevant information provided by the
company to the financial marketplace.
3.3 Expose the Company to a broad network of active retail brokers,
financial analysts, institutional fund managers, private investors and
active financial newsletter writers.
3.4 Assist the Company in obtaining financial institution coverage.
3.5 Assist the Company with any financing activity by making
introductions to the investment community
3.6 Prepare the Company's due diligence reports, corporate profile and
fact sheets for the investment community.
3.7 Upon the Company's request set up at least one investment
conference with a minimum of 20 financial institutions or individual
investors participating.
3.8 Conduct a tele-marketing campaign to the investment community and
brokerage Community and conduct tele-conferences with a LCG moderator,
Company executive(s), brokers, financial analysts, fund managers and other
interested participants.
3.9 Feature the Company's corporate profile or fact sheet in LCG`s
web-site(s).
3.10 Assist the Company in the preparation of all press releases and
coordinate the releases via a Company paid account with PR NewsWire or
BusinessWire.
3.11 Create, build and continually enhance a fax database of all
brokers, investors, analysts and media contacts who have expressed an
interest in receiving on-going information on the Company. LCG will assist
the Company in setting up an account with a fax broadcasting agency to
manage the actual broadcasting in the event the Company does not have this
capability in-house. Further, LCG will, at its election, mass-fax broadcast
select releases to its network of U.S. stockbrokers, analysts and
institutional investors.
3.12 E-mail press releases, corporate announcements, broker updates
and Company news developments to LCG`s e-mail database of brokers,
institutional fund managers, financial analysts and industry professionals.
3.13 Serve as the Company's external publicist and endeavor to obtain
media coverage on the Company in both trade and industry press, on local
and national radio and/or TV programming, in subscription-based financial
newsletters, and on the worldwide web.
3.14 Introduce the Company to various fund managers and institutional
investors.
ALL OF THE FOREGOING LCG PREPARED DOCUMENTATION CONCERNING THE COMPANY,
INCLUDING, BUT NOT LIMITED TO, DUE DILIGENCE REPORTS, CORPORATE PROFILE, FACT
SHEETS, AND QUARTERLY NEWSLETTERS, SHALL BE PREPARED BY LCG FROM MATERIALS
SUPPLIED TO IT BY THE COMPANY AND SHALL BE APPROVED BY THE COMPANY IN WRITING
PRIOR TO DISSEMINATION BY LCG.
4. LCG `S COMPENSATION. Upon the execution of this Agreement (and as otherwise
provided below), the Company hereby agrees to pay LCG as follows:
4.1 A grant of 120,000 shares of the Company's common stock earned and
vested on a pro rata basis monthly over 12 months, subject to rule 144
("Common Stock").
4.2 A warrant (subject to customary adjustments) to purchase 120,000
shares of the Company's common stock at an exercise price of $1.25 per
share earned and vested on a pro rata basis monthly over 12 months, subject
to rule 144 ("Warrant").
4.3 A consulting fee equal to five percent (5%) of any capital raised
through investors introduced directly by LCG who were previously unknown to
the Company ("Consulting Fee").
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The Consulting Fee shall be applicable for any investment made within 12
months of the termination of this Agreement as per the above.
4.4 A consulting warrant (subject to customary adjustments) to
purchase one (1) share of the Company's common stock for every twenty (20)
shares purchased by investors introduced directly by LCG who were
previously unknown to the Company ("Consulting Warrant"). The Consulting
Warrant shall be applicable for any shares purchased within 12 months of
the termination of this Agreement as per the above.
4.5 Piggy-back registration rights for the Common Stock and all shares
underlying the Warrant and Consulting Warrant as earned and vested.
4.6 Five thousand dollars ($5000.00) per month beginning on the first
of month after the Company completes a capital raise net to the Company of
$1,000,000 or more ("Monthly Fee"). The Monthly Fee shall reduce to 5,000
the 10,000 shares of the Common Stock that is earned and vested monthly by
LCG as referenced in 4.1 above.
5. LCG INDEMNIFICATION. LCG hereby agrees to indemnify and hold harmless the
Company and its officers, directors, agents and representatives from any and all
actions, claims, losses or damages, together with all reasonable costs and
expenses (including legal fees) arising from the gross negligence or willful
misconduct of LCG or its agents or representatives in the performance of its
duties under this Agreement.
6. LCG'S EXPENSES AND COSTS. The Company shall pay all reasonable costs and
expenses incurred by LCG, its directors, officers, employees and agents, in
carrying out its duties and obligations pursuant to the provisions of this
Agreement, excluding LCG's general and administrative expenses and costs, but
including and not limited to the following costs and expenses: postage,
telephone, travel and lodging. Any expenses in excess of $250 shall be
pre-approved in writing by the Company. Additionally, if expenses in total
exceed $1,000, the Company shall be notified.
7. NOTICES. Any notice or other communication required or permitted hereunder
shall be in writing and shall be delivered personally (including by courier or
overnight carrier), or by certified or registered first class mail, postage
prepaid. Any such notice shall be deemed given when so delivered personally; or,
if mailed, forty-eight (48) hours after the date of deposit in the mail, as
follows:
If to LCG: 000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
If to the Company: Xxx Xxxxxxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
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Either party may, by notice given in accordance with this Section to the other
party hereto, designate another address or person for receipt of notices
hereunder.
8. ENTIRE AGREEMENT. This Agreement, the Stock Purchase Warrants and the
Registration Rights Agreement constitute the entire agreement and understanding
between the parties hereto with respect to the subject matter hereof and
supersede all prior discussions, agreements and undertakings, written or oral,
of any and every nature with respect thereto.
9. WAIVERS AND AMENDMENTS; NON-CONTRACTUAL REMEDIES; PRESERVATION OF REMEDIES.
This Agreement may be amended, superseded or canceled, and the terms, provisions
and conditions hereof may be waived, only by a written instrument signed by
authorized representatives of the parties hereto or, in the case of a waiver, by
an authorized representative of the party waiving compliance. No such written
instrument shall be effective unless it expressly recites that it is intended to
amend, supersede or cancel this Agreement or to waive compliance with one or
more of the terms hereof, as the case may be. No delay on the part of any party
in exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any waiver on the part of any party of any such right, power
or privilege, or any single or partial exercise of such right, power or
privilege, preclude any further exercise thereof or the exercise of any other
such right, power or privilege. The rights and remedies herein provided are
cumulative and are not exclusive of any rights or remedies that any party may
otherwise have at law or in equity.
10. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without giving effect to the
conflicts of laws provisions thereof. Any actions, claims or suits (whether in
law or equity) arising out of or relating to this Agreement, or the alleged
breach thereof, shall be brought only in courts located in New York and the
Company hereby waives its rights, if any, to bring such actions, claims or suits
in any other courts. LCG and the Company hereby agree to submit themselves to
the jurisdiction of the courts located in New York for the enforcement of this
provision and for the enforcement of any judgment rendered by such courts. If
any action, claim or suit is brought by LCG against the Company hereunder and
the Company is not otherwise subject to service of process in New York, the
Company agrees to and does hereby irrevocably appoint the Secretary of State of
the State of New York as the Company's agent for the acceptance of service of
process therein, and a copy of such process shall be mailed by LCG to the
Company at the Company's last known address.
11. BINDING EFFECT; NO ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns. This Agreement is not assignable without the prior written
consent of the non-assigning party hereto, except that either party hereto may
assign its rights hereunder to an affiliate of such party without the permission
of the other party; PROVIDED, HOWEVER, that no such assignment shall operate to
release the assigning party from its duties or liabilities hereunder.
12. COUNTERPARTS. This Agreement may be executed by the parties hereto in
separate counterparts which together shall constitute one and the same
instrument.
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13. NO THIRD-PARTY BENEFICIARIES. None of the provisions of this Agreement shall
be for the benefit or enforceable by any other person not a party to this
Agreement.
14. SEVERABILITY OF PROVISIONS. If any provision or any portion of any provision
of this Agreement or the application of any such provision or any portion
thereof to any person or circumstance, shall be held invalid or unenforceable,
the remaining portion 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 as
to which it is held invalid or unenforceable, shall not be affected thereby and
such provision or portion of any provision as shall have been held invalid or
unenforceable shall be deemed limited or modified to the extent necessary to
make it valid and enforceable and in no event shall this Agreement be rendered
void or unenforceable.
15. CONSTRUCTION AND REPRESENTATION BY COUNSEL. The parties hereto represent
that in the negotiation and drafting of this Agreement they have each been
represented by and relied upon the advice of the respective counsel of its
choice. The parties hereto affirm that each of their counsel have had a
substantial role in the drafting and negotiation of this Agreement and,
therefore, the rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation
of this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the day and year first above written. a21, Inc.
By: __________________________________________
Name: Xxxxxx X. Xxxxx
Title: Chairman
XXXXXX CAPITAL GROUP, INC.
By: __________________________________________
Name: Xxxx Xxxxxx
Title: President and CEO
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