EXHIBIT 10.44
MEDIA PRODUCTION AND PLACEMENT SERVICES AGREEMENT
This Media Production and Placement Services Agreement (the "Agreement") is
entered into on the date indicated on the signature page (the "Effective Date"),
by and between Media4Equity LLC, a Nevada limited liability company ("M4E") and
Ingen Technologies, Inc. 00000 Xxxxxx "X" Xxxxxxx, XX 00000, (the "Company").
(Ingen and M4E are referred to collectively herein as the "Parties").
Whereas, M4E produces and distributes nationally syndicated print and radio
features for its clients in exchange for equity in its clients' businesses; and
Whereas, M4E wishes to accept the Company as a client; and
Whereas, the Company desires to further develop and promote its general
business, technologies, and/or products and services in order to enhance overall
brand awareness, stimulate new business, and build long-term value for its
shareholders; and
Whereas, the Company desires to utilize M4E's services to act as production and
placement agency for Company's print and broadcast media campaign.
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth
herein, and other good and valuable consideration, the Parties agree as follows:
1. MEDIA CREDIT
M4E hereby provides the Company with a guaranteed dollar value of national media
exposure (the "Media Credit"), which Media Credit shall be reduced by the "Media
Value" of features placed, as further defined in Section 3(c), below, of
placements of print and radio features obtained by M4E on behalf of Company. The
value of the Media Credit shall be equivalent to two million dollars
($2,000,000.00 U.S.) in Media Value.
2. MEDIA CAMPAIGN
a) Consultation. M4E shall consult with Company regarding the content of the
Media Campaign. M4E shall develop, write, edit and deliver proofs of any and all
print media and any and all radio scripts (collectively referred to herein as
the "Copy," and all placements throughout the term of the Agreement referred to
as the "Media Campaign") to the Company for inspection and approval. No print or
radio feature shall be distributed without Company's prior written approval. M4E
shall not be liable for the Company's failure to review and approve Copy on a
timely basis, or for any actions or inactions of the Company. Parties agree that
the initiation of the Media Campaign shall commence at the sole discretion of
the Company, but no later than 12 months from the Effective Date, and shall
terminate upon the earlier to occur of the Media Credit being redeemed in its
entirety, or three (3) years from the commencement of said Media Campaign, (the
"Redemption Period").
b) Content.
(i) PRINT FEATURES. Each Print Feature shall consist of a news story that
features the Company's name, products and/or service, contact information, web
address and such other information as the Company may approve.
(ii) RADIO FEATURES. Each Radio Feature shall consist of two, 30-second
nationally syndicated radio scripts under one heading. Each Radio Feature will
be specifically about the Company and written and read by radio media
professionals.
c) Distribution.
(i) All print media approved by Company for distribution pursuant to Section
2(a) hereof, shall be distributed on computer disks, by direct electronic feed,
in a hard copy camera-ready format and/or over the Internet to over ten thousand
(10,000) daily and weekly newspapers, news, and wire services, which may publish
the features, at their sole discretion, free of copyright, fees or other
charges. (ii) All radio features, formatted as either scripts and/or audio
recordings, shall be sent directly, and/or indirectly via radio networks, to
over six thousand (6,000) radio stations in the United States.
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3. M4E PERFORMANCE a) Redemption of Media Credit. Upon Company's request,
further pursuant to the guidelines detailed herein, M4E shall submit for Company
review and approval Copy for the first print or radio feature within five
business days of such request.
b) Production/Distribution/Publication. During the Redemption Period M4E shall
produce, distribute and gain placement/publication of nationally syndicated
newspaper features and/or nationally syndicated radio features (final recordings
to be provided to Company upon completion by M4E) on behalf of Company. Each
published feature shall be ascribed a Media Value, and the Media Value of all
respective features shall be applied against and reduce the Media Credit. The
entire value of the Media Credit shall be utilized within three (3) years,
commencing on the date the Company first reviews and approves copy pursuant to
Section 2(a) herein, and in no case commencing later than one (1) year from the
Effective Date hereof.
c) Media Value. For purposes of this Agreement, the Media Value of each aired
radio feature and each published newspaper feature shall be equivalent to each
respective radio station's or newspaper's official ad rate pricing policies,
measured by length in column inches of each complete story for print placements
and in total seconds of each radio feature for radio placements.
d) Reduction of Media Credit. The Media Value of all published news features and
all broadcasted radio features shall reduce the Media Credit, notwithstanding
any Company error in Copy approval or any subsequent editing by newspapers,
radio broadcasters, or any other third parties.
e) "MEDIA PLACEMENT GUARANTEE." M4E guarantees that the aggregate Media Value of
all published print and all broadcast radio features shall be equal to or
greater than the Media Credit created by this Agreement. In the event that the
Minimum Placement Guarantee is not met by the end of the Term, M4E shall create
additional, and/or re-distribute existing features at no cost to the Company
until the Media Placement Guarantee is reached.
f) Reports. M4E shall deliver weekly reports to the Company beginning ten (10)
weeks from the distribution date of each print and radio feature, and continuing
for a period of one (1) year. Reports shall include Media Value, estimated
listener and readership information, and actual newspaper clippings of all
reported published print features.
4. COMPANY PERFORMANCE
a) Redemption of Media Credit. The Company shall have one (1) year to begin
Campaign and thereby commence redemption of the Media Credit. Once commenced,
the redemption of the Media Credit must be completed within three (3) years.
b) Consultation and Cooperation. The Company shall consult with M4E pursuant to
Section 2(a) herein and use its best reasonable efforts to provide M4E with
information necessary to write Copy for the Campaign and to ensure the Company's
review of same.
c) Timeliness. The Company shall make a good faith effort to approve or submit
corrections to all Copy within seventy-two (72) hours of receipt thereof.
Failure of Company to approve or return corrected Copy within one (1) week of
receipt by Company shall constitute a material breach of this Agreement.
d) Investor Relations. When, and if, Company becomes publicly traded, Company
agrees to implement an investor relations plan and campaign reasonably
acceptable to M4E.
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5. M4E COMPENSATION & ISSUANCE OF SHARES
a) Grant of Common Stock Shares. In consideration of M4E's commitment of the
Media Credit, the Company shall transfer to M4E, and/or its designee(s) listed
in "Exhibit A," attached hereto, within five business days of the Effective Date
Three Million Three Hundred Thousand (3,300,000) restricted shares and or units
of Company's common stock ("Compensation Shares"). M4E's performance hereunder
is contingent upon Company's timely transfer of Compensation Shares.
b) Transfer Agent Instructions. Upon the execution of this Agreement, the
Company shall issue instructions to the Company's transfer agent effecting the
provisions of Section 6(a) herein. Failure of Company to fully perform Section
6(a) or this Section 5(b) shall be a material breach and shall excuse any
further performance by M4E under this Agreement.
c) Nature of Compensation Shares. The Parties acknowledge and agree that: (i)
the rights and obligations defined by this Agreement become binding upon
execution of this Agreement; and (ii) the consideration for all Compensation
Shares transferred hereby, regardless of the date of transfer, is represented
solely by M4E's obligations hereunder, and M4E's interest in all Compensation
Shares transferred hereunder immediately and irrevocably vests in M4E upon the
execution of this Agreement; and (iii) the effective date of all Compensation
Shares transferred hereby, regardless of the actual date of transfer, shall be
the Effective Date hereof, and the tolling of any and all time periods relating
to the Shares, including but not limited to those relating to any restriction,
shall be calculated from the Effective Date hereof; and (iv) all Compensation
Shares transferred hereby shall be fully paid, non assessable, common shares of
the Company; (v) the number of Compensation Shares shall be adjusted for any
stock splits, stock dividends, combinations, recapitalizations and the like; and
(vi) no Shares transferred hereby shall be blocked in any way or subject to
rescission or cancellation for any reason except gross negligence or
malfeasance.
d) Intrinsic Value of Compensation Shares. The Parties acknowledge and agree:
(i) the market value of Company shares, calculated using a price quoted on the
exchange on which such shares trade, may not necessarily reflect a true and
accurate valuation of the Shares; (ii) the Media Value may bear no relationship
to the current or future value of the Compensation Shares.
e) Securities Documentation. M4E agrees to submit with an executed copy of this
Agreement any such documentation, including but not limited to a Confidential
Investor Questionnaire and Subscription Agreement, as Company's counsel may deem
necessary to comply with applicable securities laws related to the issuance of
the Compensation Shares.
f) Opinion Letter. Company agrees to accept and represent to Company's transfer
agent as valid, any opinion letter from M4E's counsel regarding restricted stock
status and the removal of the legend thereon.
g) Execution Fee. Company shall pay M4E an Execution Fee, payable in cash, of
two thousand nine hundred fifty dollars US ($2,950.00) per month for the
duration of the Campaign, for the express purpose of offsetting a portion of
M4E's costs associated with executing the Campaign. However, first payment under
this provision shall not commence until twelve (12) months after the start of
the Media Campaign, which, at company's request can be delayed for a maximum of
twelve (12) months (Section 2 a) from the Effective Date.
6. REGISTRATION RIGHTS
a) Piggyback and Demand Registration Rights. If, at any time or from time to
time after the Effective Date, the Company proposes to file a registration
statement covering any securities of the Company, other than an offering
registered on Form S-8 or Form S-4 (or successor forms relating to employee
stock plans and certain business combinations), the Company shall, not less than
thirty (30) days prior to the proposed filing date of the registration
statement, give written notice of the proposed registration to M4E. Company
agrees to include in such registration statement, all Compensation Shares as M4E
so instructs, which instructions shall be delivered in writing to the Company
within 20 days of M4E's receipt of Company's notice of such registration. If M4E
requests, or as the Parties may agree, that fewer shares than M4E then owns be
included in such registration statement, M4E shall continue to have piggyback
registration rights for succeeding registration statements until all
Compensation Shares have been registered. M4E may make one "demand" registration
request, under which Company agrees to file under the Securities Act of 1933, as
amended, a registration statement covering the Compensation Shares within 30
days after receipt of such request.
b) Registration Costs. Company will bear all expenses attendant to registering
the securities.
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c) Liquidated Damages. In the event that the Company is required to include the
Compensation Shares in a registration statement pursuant to Section 6(a) herein,
and the Company fails to register the Compensation Shares, or if the
Compensation Shares are or become eligible for sale pursuant to Rule 144 and the
Company does not provide all required documents, including but not limited to
any required legal opinion letter to remove any stock restrictions, within one
week of written request from M4E, the Company shall pay as liquidated damages to
M4E, in legal tender of the United States, an amount equal to five percent (5%)
of the total value of this Agreement, for every thirty (30) day period until the
restrictions are lifted. The Parties hereto agree that damages due to Company's
breech hereunder are difficult to determine as of the Effective Date, and the
Liquidated Damages hereunder are meant to approximate M4E's damages, and are not
punitive.
7. DEFAULT
Any failure of the Company to (i) transfer Stock as required by Section 5,
herein; (ii) timely review and approve Copy supplied by M4E for review; or (iii)
act in good faith to effectuate the terms of this Agreement, shall constitute a
default. Upon Company's default, all amounts due M4E hereunder shall be due and
payable, and M4E may in its sole discretion immediately suspend performance and
terminate this Agreement.
8. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
For the purposes of this Agreement, the expression "Confidential Information"
means all information of any nature previously, presently, or subsequently
disclosed by one party (the "Disclosing Party") to the other party (the
"Receiving Party"), relating to the Disclosing Party's business, including, but
not limited to, the terms of this Agreement, information concerning any entities
and/or interested parties and any analyses, compilations, studies other
documents which contain or otherwise reflect or are generated from such
information, all information relating to business, financial, customer and
product development plans, forecasts, lists, methods, strategies, compilations
and other information, inventions and ideas, including without limitation,
ideas, know how, inventions (whether patentable or not), schematics and other
technical information. However, Confidential Information does not include any
information that is generally known in the Receiving Party's industry at the
time of the signing of this Agreement, any information that the Receiving Party
rightfully had in its possession prior to the disclosure of such information to
the Receiving Party by the Disclosing Party, or any information disclosed after
the termination of this agreement. The Disclosing Party Shall: Keep all
Confidential Information secret and confidential; Not use any Confidential
Information to obtain any financial, commercial, trading and/or other advantage,
but rather use Confidential Information for the sole purpose of effectuating the
mutual transaction(s) contemplated hereby; Not disclose Confidential Information
to any third party whatsoever except as necessary to effectuate the terms of
this Agreement.
9. INDEMNIFICATION
Company shall indemnify and hold harmless M4E its agents, employees, legal
representatives, heirs, executors or assigns from and against any and all
losses, damages, expenses and liabilities (collectively "Liabilities") or
actions, investigations, inquiries, arbitrations, claims or other proceedings in
respect thereof, including enforcement of this Agreement (collectively
"Actions") (Liabilities and Actions are herein collectively referred to as
"Losses"). Losses include, but are not limited to all reasonable legal fees,
court costs and other expenses incurred in connection with investigating,
preparing, defending, paying, settling or compromising any suit in law or equity
arising out of this Agreement or for any breach of this Agreement
notwithstanding the absence of a final determination as to a Company's
obligation to reimburse any of M4E Covenantees for such Losses and the
possibility that such payments might later be held to have been improper.
10. CHOICE OF LAW/ARBITRATION
This Agreement shall be governed by and construed in accordance with laws and
judicial decisions of the Commonwealth of Virginia, without regard to its
principles of conflicts of laws. The resolution of all disputes, actions or
proceedings arising out of this Agreement shall be determined solely and
exclusively by arbitration, by a single arbitrator, under the rules of the
American Arbitration Association as then in effect. The place of arbitration
shall be Alexandria, Virginia. Any decision rendered by the Arbitrator shall be
final and binding, and any judgment upon any award rendered by the Arbitrator
may be entered in any court having jurisdiction.
11. PUBLIC ANNOUNCEMENTS
The Parties will jointly agree to the form of a public announcement of this
Agreement and the proposed services. Neither party will, without the other's
prior written consent and approval, issue any press release and/or other public
announcement relating to the terms and conditions set forth in (or the existence
of) this agreement or any additional press releases mentioning Media4Equity LLC
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or any employee thereof, except for such disclosure to the public or to
governmental agencies as its counsel shall deem necessary to comply with any and
all applicable laws, rules or regulations. Company explicitly acknowledges and
agrees that no public announcement of any kind may be made until Compensation
Shares are issued pursuant to Section 5, above.
12. TERM/TERMINATION
a) Term. The terms of this Agreement shall be effective as of the Effective
Date, and continue until the later of (i) one
(1) year from the date the Company first approves media for placement (which
approval shall not be unreasonably withheld); or (ii) four (4) years from the
Effective Date. The terms, conditions, and obligations of Sections 9, 10, and 11
hereof shall survive the termination of this Agreement.
b) Term Certain. As the execution of this Agreement triggers the reallocation of
M4E's staff and resources, the Company may not terminate or cancel this
Agreement prior to the expiration of the Term set forth in Section 12(a) herein.
13. SUCCESSORS AND ASSIGNS
The Parties may not assign their rights or obligations hereunder except that M4E
may in its sole discretion assign the right to receive any compensation due
hereunder including without limitation any and all interest in the Compensation
Shares.
14. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same agreement. A telefaxed copy of this Agreement shall be deemed an original.
15. HEADINGS
The headings used in this Agreement are for convenience of reference only and
shall not be deemed to limit, characterize or in any way affect the
interpretation of any provision of this Agreement.
16. MODIFICATION AND WAIVERS
No change, modification or waiver of any provision of this Agreement shall be
valid or binding unless it is in writing, dated subsequent to the Effective Date
of this Agreement, and signed by both the Company and M4E. No waiver of any
breach, term, condition or remedy of this Agreement by any party shall
constitute a subsequent waiver of the same or any other breach, term, condition
or remedy.
17. SEVERABILITY
If one or more provisions of this Agreement are held to be unenforceable under
applicable law, such provision(s) shall be excluded from this Agreement and the
balance of the Agreement shall be interpreted as if such provision(s) were so
excluded and shall be enforceable in accordance with its terms.
18. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement and understanding of the parties
with respect to the subject matter hereof and supersedes any and all prior
negotiations, correspondence, agreements, understandings duties or obligations
between the parties with respect to the subject matter hereof.
19. FURTHER ASSURANCES
From and after the date of this Agreement, upon the request of M4E, the Company
shall execute and deliver such instruments, documents or other writings as may
be reasonably necessary or desirable to carry out and effectuate fully the
intents and purposes of this Agreement.
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20. NOTICES
All notices or other communications required or permitted by this Agreement
shall be in writing and shall be deemed to have been duly received: (i) if given
by telecopier, when transmitted and the appropriate telephonic confirmation
received if transmitted on a business day and during normal business hours of
the recipient, and otherwise on the next business day following transmission,
(ii) if given by certified or registered mail, return receipt requested, postage
prepaid, three business days after being deposited in the U.S. mails, or (iii)
if given by courier or other means, when received or personally delivered, and,
in any such case, to the address and contacts indicated on the signature page.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on August
27, 2008:
Media4Equity LLC:
/s/ X.X. Xxxxx
----------------------------
Xxxxxxx Xxxxx/President
0000 Xxxxxxxx Xxxx #000
Xxxxx Xxxxxx, XX 00000 Company Name
Ingen Technologies, Inc.
/s/ Xxxxx Sand
---------------------------
Xxxxx Sand, CEO and Chairman
00000 Xxxxxx X
Xxxxxxx XX 00000
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