Exhibit 10.21
PUBLICITY AGREEMENT
Prepared for INyX Inc. by Capital Financial Media, Inc.
AGREEMENT made this 15th day of August 2003, by and between Capital Financial
Media, Inc. ("Publisher") and INyX, Inc. (the "Company").
WITNESSETH:
WHEREAS, the Company is or will be publicly held with its common stock trading
on one or more stock Exchanges, and
WHEREAS, the Company desires to publicize itself with the intention of making
its name and business better known to potential shareholders, and
WHEREAS, the Publisher is in the business of public relations, direct mail
advertising and other related activities, and
WHEREAS, the Publisher is willing to help publicize the Company.
NOW THEREFORE, in conclusion of the mutual covenants herein contained, it is
agreed:
1. Engagement. The Company hereby engages the Publisher to:
o Cause to be prepared an advertising/advertorial product (mailing
package) that prominently features a report on the Company -
distribute the same to no less than 400,000 US residents. Said
distribution shall occur in an initial distribution of 250,000, with 3
ensuing 50,000 installments
o Coordination with the Company in preparing for an internal
distribution a copy of the mailing package to its "in-house"
shareholder and contact lists accompanied by a shareholder communique
from the Company addressing current corporate events and the upcoming
national investor awareness initiative. Assistance with setup of ADP
"Street Link" service if applicable.
2. Assistance. The Company acknowledges the Publisher will prepare and
distribute an advertising/advertorial report on the Company. Publisher
agrees to assist in additional advertising/advertorial report mailings, as
requested, based upon additional production budgets. All
advertising/advertorial disseminations sponsored by the Company will be
fully disclosed as paid advertising (disclosing the amount and nature of
compensation and associated costs of the program as provided for by
applicable US Securities Acts and other Regulations.)
3. Preparation of Report. The Company will cooperate fully and timely with the
Publisher to supply all materials reasonably requested by either to prepare the
report. Because the Publisher will rely upon this information in preparation of
the report and programs, the Company represents to the Publisher that all such
information shall be true, accurate, and complete and not misleading, in any
respect.
4. Company Review. No material about the Company shall be distributed by
Publisher unless and until the Company has reviewed and approved the same. The
Company will act diligently and promptly in reviewing materials submitted to it
by the Publisher to enhance timely distribution of the materials and will inform
the Publisher in writing, of any inaccuracies contained in the material prepared
prior to the projected publication and/or delivery dates. The Company will
acknowledge in writing that the material is correct, acceptable and approved for
public dissemination. (as corrected, if applicable).
5. Program cost. In consideration of the services to be performed by the
Publisher and various vendors and sub-contractors, the Company agrees to pay
Publisher for all costs of creation and coordination of the programs outlined in
section 1 and reasonable allowance for Publisher's overhead and creative
direction incurred in connection with performance of this Agreement. Such costs
to be paid by the Company will be no more than US$360,000.
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PUBLICITY AGREEMENT
6. Funds Delivery Schedule. A non-refundable (US$75,000.00) initial deposit is
required with the executed agreement. The desired distribution date of the first
packages is 9/15/03. With respect to scheduling and funds required for
execution, the second installment of funds (US$100,000.00) must be received
prior to mail date. The third installment of funds ($85,000) would be due prior
to mail date. The final postage amount (can be made directly to the US
Postmaster if desired, US$100,000) would be due 24 hours prior to the mail date.
7. Publisher Disclaimer. PUBLISHER MAKES NO REPRESENTATION THAT: (A) ITS
PUBLICATION AND DISTRIBUTION OF THE PROGRAMS WILL RESULT IN ANY ENHANCEMENT TO
THE COMPANY, (B) THE PRICE OF THE COMPANY'S PUBLICLY TRADED SECURITIES WILL
INCREASE, (C) ANY PERSON WILL BECOME A SHAREHOLDER IN THE COMPANY AS A RESULT OF
THE DISTRIBUTION OR (D) ANY PERSON WILL LEND MONEY TO OR INVEST IN THE COMPANY.
8. Limitation of Publisher Liability. If Publisher fails to perform its
services hereunder, its entire liability to the Company shall not exceed the
lesser of: (a) the amount of cash payment Publisher has received from the
Company excluding any non-refundable deposits and or (b) the actual and direct
damage to the Company as a result of such non-performance. IN NO EVENT WILL
PUBLISHER OR PARTNER BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL
DAMAGES NOR FOR ANY CLAIM AGAINST THE COMPANY BY ANY PERSON OR ENTITY ARISING
FROM OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE ADVERTISING AND PUBLICITY
ACTIVITIES UNDERTAKEN.
9. Ownership of Materials. All right, title and interest in and to materials
to be produced by Publisher in connection with the services to be rendered under
this Agreement shall be and remain the sole and exclusive property of it.
10. Confidentiality. Until such time as the same may become publicly known,
Publisher agrees that any information provided to it by the Company of a
confidential nature will not be revealed or disclosed to any person or entity,
except in the performance of this Agreement, and upon completion of its services
and upon the written request to it. Notwithstanding the foregoing, Publisher
shall be liable for any revelation of confidential information that arises from
sources other than directly from the beneficial owners of Publisher, being
recognized and understood that in the course of performance of this Agreement,
many persons will have to receive access to such materials.
11. Notices. All notices hereunder shall be in writing and addressed to the
party at the address herein set forth, or at such address as to which notice
pursuant to this section may be given, and shall be given by personal delivery,
by certified mail (return receipt requested), Express Mail, or by national
overnight courier. If Company is a non-resident of the United States; the
equivalent services of the postal system of the Company's residence may be used.
Notices will be deemed given upon the earlier of actual receipt or three (3)
business days after being mailed or delivered to such courier service.
Notices shall be addressed to Publisher at:
Capital Financial Media, Inc.
Attn: Xxxxx Xxxx
000X XX 0xx Xxx.
Xxxxxx Xxxxx, XX 00000
(000) 000-0000
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PUBLICITY AGREEMENT
and to the Company at:
INyX, Inc.
Attn: Dr. Xxxx Xxxxxxx
000 Xxxxxxxx Xxx, 0xx Xxxxx
Xxxxx, XX
00000
Such addresses and notices may be changed at any time by either party by
utilizing the foregoing notice procedures. Any notices to be given hereunder
will be effective if executed by and sent to the attorneys for the parties
giving such notice, and in connection therewith the parties and their respective
counsel agree that in giving such notices counsel may communicate directly in
writing with such parties to the extent necessary to give such notice.
12. Compliance with Law. Publisher shall have no obligation to send any
mailings to residents of States of the United States of America in which the
common stock of the Company cannot be secondarily traded on a solicited basis.
The Company and Publisher will agree upon the States to which the mailings will
be directed.
13. Miscellaneous.
(A) Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the internal laws of the State of
Florida without regard to the principles of conflicts of law
thereof. Each party hereby irrevocably submits to the
non-exclusive jurisdiction of the State of Florida for the
adjudication of any dispute hereunder or in connection herewith
or with any transaction contemplated hereby or discussed herein,
and hereby irrevocably waives, and agrees not to assert in any
suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of any such court, or that such suit,
action or proceeding is improper.
(B) Venue. Any litigation under this Agreement shall have as its sole
and exclusive venue the appropriate state or federal courts
sitting in the State of Florida.
(C) Multiple Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original. It shall
not be necessary that each party execute each counterpart, or
that any one counterpart be executed by more than one party, so
long as each party executes at least one counterpart.
(D) Separability. If any one or more of the provisions of this
Agreement shall be held invalid, illegal, or unenforceable, and
provided that such provision is not essential to the transaction
provided for by this Agreement, such shall not affect any other
provision hereof, and this Agreement shall be construed as is
such provision had never been contained herein.
(E) Regulatory Acceptance. If the stock of the Company is listed on a
foreign exchange(s), this Agreement shall be subject to its
acceptance by such exchange(s) to the extent required by the
rules of such exchange(s).
(F) Presumption Against Draftsman. The parties acknowledge that each
party and its counsel have participated in the negotiation and
preparation of this Agreement. This Agreement shall be construed
without regard to any presumption or other rule requiring
construction against the party causing the Agreement to be
drafted.
(G) The duties and obligation of the Company shall inure to the
benefit of the Publisher.
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PUBLICITY AGREEMENT
EXECUTED as a sealed instrument as of the day and year first above written.
Capital Financial Media, Inc. INyX, Inc.
By: /s/ Xxxxx (ILLEGIBLE) By: /s/ Xxxx Xxxxxxx
--------------------- ---------------------
Duly Authorized Duly Authorized
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PUBLICITY AGREEMENT
EXHIBIT A
Equity Compensation Terms
The equity compensation package to consist of 4 components:
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1) Issuance to Publisher of a warrant to purchase 25,000 shares of Common
Stock at a strike/exercise price of $1.10 for a period of 3 years.
2) Issuance to Publisher of a warrant to purchase 25,000 shares of Common
Stock at a strike/exercise price of $1.60 for a period of 3 years.
3) Issuance to Publisher of a warrant to purchase 25,000 shares of Common
Stock, at a strike/exercise price of $2.10 for a
period of 3 years.
4) Issuance to Publisher of a warrant to purchase 25,000 shares of Common
Stock at a strike/exercise price of $2.60 for a period of 3 years.
Publisher may exercise the option in whole or in part and may pay the exercise
price (a) in cash or (b) by cashless exercise, as follows:
X = Y (A-B)/A
Where:
X = the number of warrant shares to be issued to the warrant
holder.
Y = the number of warrant shares with respect to which this
warrant is being exercised.
A = the average of the closing prices of the Common Stock
for the five (5) Trading Days immediately prior to (but not
including) the Date of Exercise.
B = the Exercise Price.
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PUBLICITY AGREEMENT
EXHIBIT B
Funds Delivery Instructions
Funds delivery Instructions:
--------------
By Wire:
Mellon Bank
0 Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
ABA# 0000-0000-0
Swift #MELN US 3P
Credit: Xxxxxxx Xxxxx
A/C#: 101-1730
Customer Name: Capital Financial Media
Customer Acct #: 731-07C38
By Check:
Capital Financial Media, Inc.
Attn: Xxxxx Xxxx
000X - XX 0xx Xxx.
Xxxxxx Xxxxx, XX 00000 (561) 272-0460
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