EXHIBIT 10.11
COMMISSION AGREEMENT BETWEEN THE REGISTRANT
AND GESTIBROKER DATED SEPTEMBER 12, 2003
DEBT/EQUITY FUNDING BROKERAGE AGREEMENT
This Debt/Equity Funding Brokerage Agreement made this 12th day of September,
2003 is between New Millenium Media International, Inc. ("NMMG"), having its
principal business at Safety Harbor, Florida and Gestibroker Consulting &
Financial Management S.A. ("Company"), a member of the Organismo di
Autodisciplina dei Fiduciara del Xxxxxxx Ticino (OAD FCT), located at Xxxx
Xxxxxx 0x, 0000 Xxxxxx Xxxxxxxxxxx. NMMG and Company agree as follows:
I. ENGAGEMENT
NMMG hereby engages and retains Company to act as an exclusive broker to
seek debt and/or equity financing for NMMG, for general operating
purposes. Compensation to Company shall be in accordance with the amount
stated in the section on compensation.
II. INDEPENENT CONTRACTOR
A. Company shall be, and in all respects be deemed to be, an independent
contractor in the performance of its duties hereunder, any law of any
jurisdiction to the contrary.
B. Company shall not, by reason of this Agreement or the performance of
the Services, be or be deemed to be, an employee, agent, partner
co-venture or controlling person of NMMG, and Company shall not have
any power to enter into any agreement on behalf of or otherwise bind
NMMG.
C. Company shall not have or be deemed to have fiduciary obligations or
duties to NMMG and shall be free to pursue for their own account (or
for the account of others) such activities, employments, ventures,
businesses and other pursuits as they at their sole discretion, may
elect.
D. Notwithstanding the above provision, Company and its representatives
shall not pursue for their own account (or for the account of others)
such activities, employments ventures, businesses, financing,
debt/equity funding, investment advisory and/or brokerage services that
are or may be perceived to be a conflict with Company's obligations
under this Agreement or be adverse to NMMG's interests or the proposed
business plans of NMMG.
III. SERVICES
Company hereby agrees to assist NMMG in raising up to Five Million U.S.
dollars ($5,000,000) through the private placement of common shares
("Stock"), Units ("Units") consisting of common shares and stock purchase
warrants ("Warrant(s)"), the exercise of the Warrants, or the sale of
common shares, which result from the "Right to Purchase Additional Shares"
by private placement investors, pursuant to Securities Purchase Agreement
substantially in the form attached hereto as Exhibit "A" and "B". The
Stock, Units, shares of common stock issuable, which result from the
"Right to Purchase Additional Shares" by private placement investors, are
collectively hereinafter referred to as the "Securities".
IV. EXPENSES
It is expressly agreed and understood that Company's compensation as
provided in this Agreement includes reimbursement for its normal and
reasonable out-of-pocket expenses, in addition to those provided in
Section V below titled, "COMPENSATION."
A. Company will be entitled to reimbursement of its business expenses, as
described herein. The disbursement of expense money to Company and its
affiliates will be paid by NMMG, for the prior approved expenses. It is
agreed that NMMG will pay all out-of-pocket pre-approved travel
expenses incurred in connection with this engagement, which expenses
shall not be included in the expenses specified in Section V B. below.
B. NMMG also agrees to pay its own legal expenses in connection with any
"Offering Materials" prepared by NMMG. Company's legal expenses shall
be reimbursed as part of the expenses paid under Section V B. below.
C. Company shall incur any expense without prior consent from NNMMG.
D. NMMG hereby agrees to compensate Company promptly upon upon receipt of
an approved expense invoice from Company. Whenever feasible, Company
will request advance payment of previously approved expenses.
V. COMPENSATION
A. Company shall receive a cash commission equal to ten percent (10%) of
the gross amount paid by investors who purchase the Units and/or
exercise the Warrants and/or who exercise the "Right to Purchase
Additional Shares" by private placement investors.
B. NMMG shall reimburse Company for its expenses and fees incident to the
sale, issuance and delivery of the Securities, including those relating
to counsel, compliance, LBA filings, Confederation des Banques Suisse
fees, and accountants, equal to three percent (3%) of the subscription
price of the Units.
C. In addition Company and/or its assignees shall receive common stock
purchase warrants ("Company Warrants") to purchase such number of
shares of NMMG common stock equal to ten percent (10%) of the aggregate
number of shares of common stock isuuable upon the sale of the Units
and/or the exercise of the Warrants and/or which result from the "Right
to Purchase Additional Shares" by private placement investors. These
Company Warrants shall be exercisable at $0.001 per share for a period
of 60 days from the date of issuance.
D. Conpany shall receive commissions on the same terms as V. A-C. for any
other funds ("Funds"), which are herein defined as cash, notes, loans,
business combination, assets transferred to NMMG, or merger or
acquisition that results
From any party introduced to NMMG for the duration of this Agreement and
for a period of Five (5) years after the termination of this agreement.
VI. REPRESENTATIONS, WARRANTIES AND COVENANTS
The parties hereby represent, warrant and covenant that:
A. The execution, delivery and performance of this Agreement, in the time
and manner herein, specified, will not conflict with, result in a
breach of, or constitute a default under any existing agreement,
indenture, or other instrument to which either NMMG or Company is a
party or by which either entity may be bound or affected.
B. NMMG hereby irrevocably agrees not to circumvent, directly or
indirectly, the intent of this Agreement, to avoid payment of fees in
any transaction with any corporation, partnership, entity, or
individual, introduced by Company to NMMG who purchases any Securities.
C. NMMG HEREBY AGREES THAT NO ONE OTHER THAN A DIRECTOR OR OFFICER OF THE
NMMG SHALL HAVE ACCESS TO THE NAMES OF INVESTORS OR POTENTIAL INVESTORS
FURNISHED BY THE COMPANY WITHOUT THE WRITTEN CONSENT OF THE COMPANY. IN
THE EVENT THAT SUCH NAMES OF INVESTORS OR POTENTIAL INVESTORS ARE USED
TO SOLICIT FUNDS BY ANYONE AFFILIATED WITH NMMG, COMPANY SHALL BE
ENTITLED TO COMPENSATORY DAMAGES EQUAL TO TWENTY (20%) OF THE FUNDS
RAISED.
D. Company and its representatives agree to adhere to an understanding of
Confidentiality, Non-Circumvention and Non-Competition and be bound
thereby as expressed in a separate written agreement delivered
concurrently herewith.
E. NMMG and Company have full legal authority to enter into this Agreement
and to perform the same in time and manner contemplated.
F. The individuals whose signatures appear below are authorized to sign
this Agreement on behalf of their respective organizations.
G. NMMG will cooperate with Company, and will promptly provide Company
with all pertinent materials and reasonably requested information in
order for Company to perform its Services pursuant to this Agreement.
VII. TERM AND TERMINATION
A. NMMG shall have the right to terminate Company's engagement hereunder
after December 31, 2005 by furnishing Company with a thirty-day (30)
advance written notice of such termination. Upon receipt of such
written notice, this Agreement will then terminate on the 30th day
following receipt by Company.
B. However, no termination of this Agreement by NMMG shall in any way
affect the right of Company to receive any compensation, which has been
earned as a result of the Services rendered hereunder.
VIII. CONFIDENTIAL DATA
A. Company shall not divulge to others, any trade secret or confidential
information, knowledge, or data concerning or pertaining to the
business and affairs of NMMG, obtained by Company as a result of its
engagement hereunder, unless authorized, in writing by NMMG, Upon
termination of this Agreement for any reason Company agrees to return
all information on NMMG.
B. NMMG shall not divulge to others, any trade secret or confidential
information, knowledge or data concerning or pertaining to the business
and affairs of Company, obtained by NMMG as a result of its engagement
hereunder, unless authorized, in writing, by Company.
C. Company shall be required in performance of its duties to divulge to
NMMG or any officer, director, agent or employee of NMMG, any
confidential information, knowledge or data concerning any other person
firm or entity (including, but not limited to, any such persons, firm
or entity which may be a competitor or potential competitor of NMMG),
which Company may have or be able to obtain otherwise than as a result
of the relationship established by this Agreement.
IX. OTHER MATERIAL TERMS AND CONDITIONS
D. PROVISIONS. Neither termination nor completion of the assignment shall
affect the provisions of this Agreement. Which are incorporated herein,
which shall remain operative and in full force and effect. E.
REGISTRATION RIGHTS. The shares issuable upon exercise of the Company
Warrants ("Company Warrant Shares") shall be registered in the same
manner as the shares of common stock of the Units and upon exercise of
the Warrants. F. ADDITIONAL INSTRUMENTS. Each of the parties shall from
time to time, at the request of others, execute, acknowledge and
deliver to the other party any and all further instruments that may be
reasonably required to give full effect and force to the provisions of
this Agreement. G. ENTIRE AGREEMENT. Each of the parties hereby
covenants that this Agreement is intended to and does contain and
embody herein all of the understandings and Agreements, both written or
oral, of the parties with respect to the subject matter of this
Agreement, and that there exists no oral agreement or understanding
expressed or implied liability, where the absolute, final and
unconditional character and nature of this Agreement shall be in any
way or covenants other than those set forth herein.
H. LAWS OF DELAWARE. This Agreement shall be deemed to be made in,
governed by and interpreted under and construed in all respects in
accordance with the laws of Delaware, irrespective of the country or
place of domicile or residence of either party.
I. ASSIGNMENTS. The benefits of the Agreement shall inure to the
respective successors and assigns of the parties hereto and of the
indemnified parties hereunder and their successors and assigns and
representatives, and the obligations and liabilities assumed in this
Agreement by the parties hereto shall be binding upon their respective
successors and assigns; provided that the rights and obligations of
NMMG and Company and Company's representatives under this Agreement may
not be assigned or delegated without the prior written consent of NMMG
or Company, as the case may be, and any such purported assignment shall
be null and void.
J. ORIGINALS. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed an original and
constitute one and the same agreement. Facsimile copies with signatures
shall be given the same legal effect as an original.
K. ADDRESSES OF PARTIES. Each party shall at all times keep the other
informed of its principal place of business if different from that
stated herein, and shall promptly notify the other of any change,
giving the address of the new place of business or residence.
L. NOTICES. All notices that are required to be or may be sent pursuant to
the provision of this Agreement shall be sent by certified mail, return
receipt requested, or by Federal Express package delivery service to
each of the parties at the address appearing herein, and shall count
from the date of receipt or the validated air xxxx.
M. MODIFICATION AND WAIVER. A modification or waiver of any of the
provisions of this Agreement shall be effective only if made in writing
and executed with the same formality as this Agreement. The failure of
any party to insist upon strict performance of any of the provisions of
this Agreement shall not be construed as a waiver of any subsequent
default of the same or similar nature or of any other nature.
N. ATTORNEY'S FEES. If any arbitration, litigation, action, suit, or other
proceeding is instituted to remedy, prevent or obtain relief from a
breach of this Agreement, in relation to a breach of this Agreement or
pertaining to a declaration of rights under this Agreement, the
prevailing party will recover all such party's reasonable attorneys'
fees incurred in each and every such action, suit or other proceeding,
including any and all appeals or petitions there from. As used in this
Agreement, attorneys' fees will be deemed to be the reasonable legal
fees and services performed in connection with the matters involved,
including those related to any appeal or the enforcement of any
judgment calculated on the basis of the reasonable fee charged by
attorneys performing such services.
O. ARBITRATION. Should any dispute arise pursuant to this Agreement it
shall be resolved by arbitration under the Commercial Rules of the
American Arbitration Association. This Agreement shall be interpreted
under the laws of Delaware. Venue for any proceedings shall be Sarasota
County, California. There shall be three arbitrators. Each of the
parties shall select of Arbitrator and the two Arbitrators shall select
a third arbitrator and a majority decision of the arbitrators shall be
necessary for resolution. Arbitrators shall be professionally
experienced in the nature of the subject of the dispute and shall
arbitrate in accordance with the laws of Delaware. The results of any
such arbitration shall be binding on all Parties and their affiliates
or agents.
WHEREOF, on the dates of their respective signatures, each party has executed
this Agreement.
APPROVED AND AGREED APPROVED AND AGREED
Company New Millenium Media
International, Inc., a Nevada Corporation
Gestibroker Consulting & Financial Management S.A.
/s/ Xxxxxxx Xxxxxxxx /s/ Xxxx Xxxxxx
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By: Xxxxxxx Xxxxxxxx By: Xxxx Xxxxxx
Director Chief Executive Officer
10/03/2003 10/2/03
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Date of Execution Date of Inception
