AGREEMENT
This Agreement (the "Agreement") is made and entered into and between
PSI Industries, Inc. this publicly held corporation organized under the laws of
the State of Florida (the "Corporation") and Xxxxxxx Xxxxxx, a New York
corporation (the "Consultant"), the Corporation and the Consultant being
hereinafter collectively referred to as the "Parties" and generically as a
"Party").
PREAMBLE:
Whereas, the Corporation requires advice and assistance in a number of areas
pertaining to its status as a public company with securities to be registered
under the Securities Exchange Act of 1934, as amended, including the area of
shareholder relations, coordination with national and international investment
banking community and financial public relations and
Whereas, the Consultant has substantial experience in such areas as well as
access to other required professionals;
Now, therefore, in consideration for the Consultants Agreement to render the
here and after described services as well as of the premises, the sum of ten
(10) dollars and other good and valuable consideration, the receipt of adequacy
of which is hereby acknowledged, the Parties, intending to be legally bound,
hereby agree as follows:
WITNESSETH:
ARTICLE ONE
CONSULTANT'S SERVICES
1. SERVICES
A. The Consultant shall serve as the financial public relations advisor
for the Corporation. In rendering such services, the Consultant shall act:
1. As liaison between the Corporation and its shareholders;
2. As an advisor to the Corporation with respect to existing
and potential market-makers, broker-dealers, underwriters and investors as well
as serving as liaison between the Corporation and such persons; and
3. As an advisor for the Corporation with respect to the
communications and information (e.g. interviews, press releases, shareholder
reports, etc.) as well as planning, designing, developing, organizing, writing
and distributing such communications and information.
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B. To the extent requested by the Corporation the consultant shall
assist in establishing and advising the Corporation with respect to shareholder
meetings; interviews of the Corporation's officers by the financial media and
interviews of the Corporation's officers by analysts, market-makers, broker
dealers, and other members of the financial community.
C. To the extent by the Corporation, the Consultant shall seek to make
the Corporation, its management, its products, and its financial situation and
prospects, known to the financial press and publications broker-dealers, mutual
funds, institutional investors, market makers, analysts, investment advisors and
other members of the financial community as well as the financial media and the
public generally.
D. The Consultant shall not disclose to any third party any
confidential non-public information furnished by the Corporation or otherwise
obtained by it with respect to the Corporation. This obligation shall survive
termination of this AGREEMENT.
2. LIMITATIONS ON SERVICES
A. The Parties recognize 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,
Inc. in house "due diligence" or "compliance" departments of brokerage houses,
etc.
Accordingly, the Consultant agrees that it will not:
1. Release any financial or other material information
or data about the Corporation without the prior consent and approval of the
Corporation;
2. Conduct any meetings with financial analysts without
informing the Corporation in advance of the proposed meeting and the format or
agenda of such meeting;
3. Release any information or data about the Corporation to
any selected or limited person(s), entity, or group if consultant is aware that
such information or data has not been generally released or promulgated.
B. The Consultant shall restrict or cease, as directed by the
Corporation, all public relations, efforts, including all dissemination of
information regarding the Corporation immediately upon receipt of instructions
(in writing by fax or letter) to that effect from the Corporation. If the
Consultant learns of any pending public securities offering to be made or
expected to be by the Corporation. The Consultant ceased all public relations
activities on behalf of the Corporation capitalized until receipt of
instructions by the Corporation in writing as to how to proceed, and thereafter
shall proceed only in accordance with the Corporation's written instructions.
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C. The Consultant shall not take any actions, which would in any way
adversely affect the reputation, standing or prospects of the Corporation or
would cause the Corporation to be in violation of applicable law.
3. DUTIES OF THE CORPORATION
A. The Corporation shall supply the consultants, on a regular and
timely basis with all approved data and information about the Corporation, its
management, its products and its operations and the Corporation shall be
responsible for advising the Consultant of any fact which would effect the
accuracy of any prior data and information supplied to the Consultant.
B. The Corporation shall use its best efforts to promptly supply the
Consultants with full and complete copies of all filings with all federal and
state securities agencies, with full and complete copies of all shareholder
reports and communications whether or not prepared with the Consultant's
assistance with all data and information supplied to any analyst, broker-dealer,
market maker or any other member of the financial community; and with all
product or services brochures, sales, materials, etc.
C. The Corporation shall promptly notify the consultant of the filing
of any registration statement for the sale of securities and/or of any other
event, which triggers any restrictions on the public relations efforts of the
consultant.
D. The Corporation shall notify the Consultant if any information or
data supplied by the Corporation to the Consultant has not been released or
promulgated to the public.
ARTICLE 2
CONSULTANTS COMPENSATION
2.1 CONSULTING FEES
The Consultant shall be entitled to the following compensation for services to
be rendered:
A. A fixed monthly consulting fee of $5,000.00 payable monthly in
advance and 7,500 shares of the company's restricted common stock payable
quarterly.
B. In addition to such fees, the Corporation shall immediately
reimburse the Consultant for any out of pocket fees or expenses incurred in the
performance of his duties. All expenses incurred shall be on a pre-approved
basis only.
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C. This contract will remain in effect for a one-year period and will
be subject to earlier cancellation by either Party with or without cause upon 30
day written notice.
ARTICLE 3
CONFIDENTIALITY AND COMPETITION
3.1 CONFIDENTIALITY
The Corporation acknowledges that as a result of its entry into this Agreement
it will be making use of, acquiring and/or adding to, confidentiality
information relating to the consultant and its business contacts; consequently,
as material inducement to the Consultant's entry into its Agreement, the
Corporation hereby covenants and agrees that it shall not, at any time during or
following the term of this Agreement, directly or indirectly, personally use,
divulge or disclose, for any purpose whatsoever, any of such confidential
information which has been obtained by or disclosed to it as a result of entry
hereinto. In the event of a breach or threatened breach by the Corporation or
any member of the Controlling Stockholder Group of any of the provisions to this
Article Three, the Consultant in addition to and not in limitation of any other
rights, remedies or damages available at law or in equity, shall be entitled to
a permanent injunction in order to prevent or to restrain any such breach by the
Corporation or by the Corporation's partners, agents, representatives, servants,
employers, employees, affiliates, and or any and all persons directly or
indirectly acting for or with it.
3.2 COMPETITION AND NON CIRCUMVENTION
There are no restrictions against competition imposed by this Agreement, it
being the understanding of the parties that this is a non-exclusive Agreement.
3.3 SPECIAL REMEDIES
In view of the irreparable harm and damage which would undoubtedly occur to the
Corporation or the Consultant as a result of a breach by either Party of the
covenants or Agreements contained in this Article Three and in view of the lack
of an adequate remedy at law to protect either Party's interests it is hereby
agreed that either Party shall have the following additional rights and remedies
in the event of a breach hereof.
A. Both parties hereby consent to the issuance of a permanent
injunction in joining it from any violations of the covenants set forth in
Section 3.1 hereof; and
3.4 CUMULATIVE REMEDIES
The Corporation and the Consultant hereby irrevocably agrees that the remedies
described in Section 3.3 hereof shall be in addition to, and not in limitation
of the rights or remedies in which both parties may be entitled to, whether at
law or in equity, under or pursuant to this Agreement.
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ARTICLE FOUR
MISCELLANEOUS
4.1 NOTICES
All notices, demands or other written communications hereunder shall be in
writing, and unless otherwise provided, shall be deemed to have been duly given
on the first business day after mailing by United States registered or certified
mail, return receipt requested, postage prepaid, address as follows:
TO THE CONSULTANT:
Xxxxxxx Xxxxxx, LTD.
TO THE PRINCIPAL:
PSI Industries, Inc.
In each case, with copies to such other address or to such other persons as any
Party shall designate to the others for such purposes in the manner hereinabove
set forth.
4.2 AMENDMENT
No modification, waiver, amendment, discharge or change of its Agreement shall
be valid unless the same is in writing and signed by parties.
4.3 MERGER
This instrument together with the instruments referred to herein, contains all
of the understandings and Agreements of the parties with respect to the subject
matter discussed herein. All prior Agreements whether written or oral are merged
herein and shall be of no force or effect.
4.4 SURVIVAL
The several representations, warranties and covenants of the parties contained
herein shall survive the execution hereof and shall be effective regardless of
any investigation that may have been made or may be made by or on behalf of any
Party.
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4.5 SEVERABILITY
If any provision or any portion of this Agreement, other than a conditions
precedent, if any, or the application of such provision or any portion hereof to
any person or circumstance shall be held invalid or unenforceable. The remaining
portions of such provisions and the remaining provisions of this Agreement or
the application of such or portion of such provisions as is held invalid or
unenforceable to persons or circumstances other than those to which it is held
invalid or unenforceable, shall not be affected thereby.
4.6 GOVERNING LAW AND VENUE
This Agreement shall be construed in accordance with the laws of the State of
Florida and any proceeding arising between the Parties in any matter pertaining
or relating to this Agreement shall, to the extent permitted by law, be held in
the Palm Beach County, Florida.
4.7 LITIGATION
In any action between the parties to enforce any of the terms of this Agreement
or any other Agreement arising from the Agreement, the prevailing Party shall be
entitled to recover its costs and expenses including reasonable attorneys' fees
up to and including all negotiations, trials and appeals, whether or not
litigation is initiated.
4.8 BENEFIT OF AGREEMENT
The terms and provisions of this Agreement shall be binding upon and inure to
the benefit of the parties, jointly and severally, their successors, assigns,
personal representatives, estates, heirs and legatees.
4.9 CAPTIONS
The captions in this Agreement are for convenience and reference only and in no
way define, describe, extend or limit the scope of this Agreement or the intent
of any provisions hereof.
4.10 NUMBER AND GENDER
All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular or plural, as the identity of the Party or
Parties, or their personal representatives, successors and assigns may require.
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4.11 FURTHER ASSURANCES
The parties hereby agree to due, execute, acknowledge and deliver or cause to be
done, executed, acknowledge or delivered and to perform all such acts and
deliver all such deeds, assignments, transfers, conveyances, powers of
attorneys, assurances, stock certificates and other documents, as may, from time
to time be required herein to effect the intent in purpose of this Agreement.
4.12 STATUS
Nothing in this Agreement shall be construed or shall constitute a partnership,
joint venture, employer-employee relationship, lesser-lessee relationship, or
principal-agent relationship.
4.13 COUNTERPARTS
This Agreement may be executed in any number of counterparts delivered through
facsimile transmission. All executed counterparts shall constitute one Agreement
notwithstanding that all signatories are not signatories to the original or the
same counterpart.
4.14. LICENSE
This Agreement is the property of Xxxxxxx Xxxxxx, LTD., a limited liability
company. The use hereof by the parties is authorized hereby solely for purposes
of this transaction and the use of this form of Agreement or deviation thereof
without prior written permission is prohibited.
IN WITNESS WHEREOF, the parties have executed this Agreement effected of the
twenty-sixth day of August, 1998. Signed, Sealed and Delivered in Our Presence.
PSI INDUSTRIES, INC., On its own and as the
agent for the Controlling Stockholder Group
By: /S/ XXXXXXXX X. XXXXXXXX
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Xxxxxxxx X. Xxxxxxxx, President
By: /S/ XXXXX XXXXX XXXXXXXXX
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Xxxxx Xxxxx Xxxxxxxxx, President
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