EXHIBIT 10.15
10.15 Consulting Agreement between Gulf Atlantic Publishing, Inc. and
XxxxxxxxxxxXxx.xxx, Inc.
GULF ATLANTIC PUBLISHING, INC. AGREEMENT
This GULF ATLANTIC PUBLISHING, INC. (a subsidiary of Stratcomm Media, Ltd.)
Agreement (the "Agreement") is entered into on this 11 day of July,2001, between
GULF ATLANTIC PUBLISHING, INC. a Florida corporation ("GAP"), and
Xxxxxxxxxxxxxx.Xxx, Inc. a Delaware- corporation ("Client").
Whereas, GAP is in the business of planning, developing and implementing
advertising, marketing and promotional campaigns for corporations and other
business entities ("Advertising, Promotional and Marketing Services");
Whereas, the Client desires to retain GAP to provide the Advertising,
Promotional and Marketing Services, and GAP desires to provide such Advertising,
Promotional and Marketing Services to Client, pursuant to the terms, conditions
and provisions contained in this Agreement;
Now, therefore, in consideration of the mutual promises contained herein
and other good and valuable consideration the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Advertising, Promotional and Marketing Services. Subject to Client's
compliance with each of the representations, warranties and covenants and
agreements made by Client in this Agreement, GAP agrees to provide to Client the
Advertising, Promotional and Marketing Services, for the period commencing on
the latter of (the "Effective Date") the date this Agreement is executed and
delivered by Client or the date that GAP receives payment of its fees.
2. Obligations and Responsibilities of Client. As of the date hereof and
during the Term of this Agreement, Client agrees as follows.
1. Representation and Warranties.
Client represents and warrants to GAP that:
(1) Organization. Client is a corporation duly organized, validly
existing and in good standing under the laws of the State of its
incorporation and it is duly qualified to do business as a
foreign corporation in each jurisdiction in which it owns or
leases property or engages in business.
(2) Formal Action. Client has the corporate power and authority to
execute and deliver this Agreement and to perform each of its
obligations hereunder and this Agreement has been duly approved
by Client's Board of Directors.
(3) Valid and Binding Agreement. This Agreement has been duly
executed and delivered by Client and is the valid and binding
obligation of Client enforceable against it in accordance with
its terms.
(4) No Violation. The execution, delivery and performance of this
Agreement does not and will not violate any provisions of the
charter or bylaws of Client or any agreement to which Client is a
party or any applicable law or regulation or order or decree of
any court, arbitrator or agency of government and no action of,
or filing with, any governmental or public body or authority is
required in connection with the execution, delivery or
performance of this Agreement.
(5) Litigation. No action, suit or proceeding is pending against or
affecting the Client or any of its properties before any court,
arbitrator or governmental body or administrative agency and none
of the persons owning beneficially or of record more than 10% of
the outstanding capital stock of the Client or any of the
directors or officers of Client is a party to any action, suit or
proceeding before any federal or state court, arbitrator or
governmental body or administrative agency (other than routine
traffic violations) and no such person has been a party to any
such proceedings for more than the past five years.
Representations and Warranties of GAP:
GAP is validly existing and in good standing in those
jurisdictions in which it engages in business.
This Agreement has been duly authorized and executed by GAP and
constitutes the valid and binding agreement of GAP.
GAP is in compliance with all applicable state and federal laws,
rules and regulations governing the transactions and business
contemplated by this Agreement.
GAP will make no misrepresentation or misstatement of any
material fact, whether by act, concealment or omission, to any
representative of groups, to Client or to any third party in
connection with its Advertising, Promotional and Marketing Services.
2. Covenants and Agreements.
Client covenants and agrees to comply with the following covenants:
(1) Client Certification. Client acknowledges that it is responsible
for the accuracy and completeness of the Information Package and for
all other information furnished to GAP and for the accuracy and
completeness of the contents of all materials prepared by GAP for and
on behalf of Client. The Client hereby designates the individuals
listed on Exhibit B attached hereto and incorporated herein by
reference as the duly authorized representatives of Client for
purposes of certifying to GAP the accuracy of all documents,
advertisements or other materials prepared by GAP for and on behalf of
Client.
2. Compensation. In consideration of the Advertising, Promotional and
Marketing Services to be performed by GAP hereunder, Client hereby agrees to
compensate GAP in the manner and in the amount specified in Exhibit A and B
which is attached hereto and incorporated herein by reference thereto.
3. Indemnity. Client acknowledges that it is responsible for the accuracy
of the Information Package and all other information provided to GAP and for the
contents of all materials, advertorials and other information prepared by GAP
for an on behalf of Client as provided herein and Client agrees to indemnify GAP
in accordance with the Indemnification Agreement set forth in Exhibit D, which
is attached hereto and incorporated herein by reference.
4. Survival of Certain Provisions. The Client's obligations to pay the fees
and expenses of GAP pursuant to Section3 of this Agreement and to comply with
the indemnification provisions pursuant to Section 3 shall remain operative and
in full force and effect regardless of any termination of this Agreement and
shall be binding upon, and shall inure to the benefit of, GAP and, in the case
of the indemnity agreement, the persons, agents, employees, officers, directors
and controlling persons referred to in the Indemnification Agreement, and their
respective successors and assigns and heirs, and no other person shall acquire
or have any right under or by virtue of this Agreement. All amounts paid or
required to be paid under Sections 3 and 4 of this Agreement shall be fully
earned on the Effective Date of this Agreement notwithstanding prior termination
of this Agreement.
5. Termination. Termination: Either party shall have the right in its sole
and absolute discretion to terminate its obligations hereunder and to
immediately cease providing Advertising, Promotional and Marketing Services
pursuant to this Agreement if either party, in the exercise of its reasonable
judgment, believe that the other party has committed a material breach of this
Agreement and after notice to the breaching party. Material breach shall mean:
that the representations and warranties made by either party hereunder are
inaccurate in any material respect or if either party breaches any of its
covenants and agreement contained herein or if any federal or state governmental
agency or instrumentality institutes an investigation or suit against either
party pertaining to the services hereunder. After proper written notice, the
breaching party shall have 20 days to cure the breaching activity. If the breach
is not cured within 20 days of proper notice the non-breaching party may
unilaterally terminate this agreement and its obligations and covenants under
this Agreement.
Upon termination by either party, should GAP be owed money or payment for
work performed under the Agreement, the Client shall remit such due and owing
funds within 30 days of termination. Should GAP be deemed the breaching party,
the company shall be obligated to return any unused portion of prepaid fees
within 30 days as well.
6. Non-Solicitation Covenant. Client agrees that it will not directly or
indirectly during the term of this Agreement or for three years following the
termination or expiration of this Agreement, either voluntarily or
involuntarily, for any reason whatsoever, recruit or hire or attempt to recruit
or hire any employee of GAP or of any of its affiliates or subsidiaries, or
otherwise induce any such employees to leave the employment of GAP or of any of
its affiliates or subsidiaries or to become an employee of or otherwise be
associated with Client or any affiliate or subsidiary of Client. Client
acknowledges that GAP and its affiliates and subsidiaries have invested a
significant amount of time, energy and expertise in the training of their
employees to be able to provide Advertising, Promotional and Marketing Services
and Client therefore agrees that this covenant is reasonable and agrees that the
breach of such covenant is very likely to result in irreparable injury to GAP,
which is unlikely to be adequately compensated by damages. Accordingly, in the
event of a breach or threatened breach by Client of this Section 8, GAP shall be
entitled to an injunction restraining Client and any affiliate, subsidiary or
director or officer thereof from recruiting, or hiring or attempting to recruit
or hire any employee of GAP or of any affiliate or subsidiary of GAP. Nothing
herein shall be construed as prohibiting GAP from pursuing any other remedies
available to GAP for such breach or threatened breach, including recovery of
damages from Client. A penalty in the amount of $250,000 shall be assessed for
breach of this Section. The undertakings herein shall survive the termination or
cancellation of the Agreement for three years.
Miscellaneous.
A. Governing Law. This Agreement shall be governed by the laws of the State
of Florida applicable to contracts executed and performed in the Circuit Court,
Orange County, in the State of Florida (without regard to the principles of
conflicts of laws).
B. Entire Agreement. This Agreement and the Exhibits hereto embody the
entire agreement of the parties with respect to its subject matter. There are no
restrictions, promises, representations, warranties, covenants, or undertakings
other than those expressly set forth or referred to herein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to its subject matter.
C. Amendments to be in Writing. This Agreement may be amended only in a
writing signed by all of the parties.
D. No Waivers by Course of Dealing; Limited Effect of Waivers. No waiver
shall be effective against any party unless it is in a writing signed by that
party. No course of dealing and no delay on the part of GAP in exercising its
rights shall operate as a waiver of that right or otherwise prejudice GAP. GAP's
failure to insist upon the strict performance of any provision of this
Agreement, or to exercise any right or remedy available to GAP, shall not
constitute a waiver by GAP of such provision. No specific waiver by GAP of any
specific breach of any provision of this Agreement shall operate as a general
waiver of the provision or of any other breach of the provision. Client shall
have no right to cure any breach except as specifically provided herein.
E. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
F. Cumulation of Rights and Remedies. No right or remedy of GAP under this
Agreement is intended to preclude any other right or remedy and every right and
remedy shall coexist with every other right and remedy now or hereafter
existing, whether by contract, at law, or in equity.
G. Successors and Assigns. This Agreement shall inure to the benefit of and
be binding upon the parties and their successors and assigns. Client shall not
have any right to assign any of its rights or delegate any of its obligations or
responsibilities under this Agreement except as expressly stated herein.
H. Payment of Fees and Expenses on Enforcing Agreement. In the event of any
dispute between the parties arising out of or related to this Agreement or the
interpretation thereof, at the trial level or appellate level, the prevailing
party shall be entitled to recover from the non-prevailing party all costs and
expenses, including reasonable fees and disbursements of counsel which may be
incurred in connection with such proceeding, without limitation, including any
costs and expenses of experts, witnesses, depositions and other costs.
I. Notices. Any notice or other communication required or permitted to be
given hereunder shall be in writing, and shall be delivered to the parties at
the addresses set forth below (or to such other addresses as the parties may
specify by due notice to the others). Notices or other communications shall be
effective when received at the recipient's location (or when delivered to that
location if receipt is refused). Notices or other communications given by
facsimile transmission shall be presumed received at the time indicated in the
recipient's automatic acknowledgment. Notices or other communications given by
Federal Express or other recognized overnight courier service shall be presumed
received on the following business day. Notices or other communications given by
certified mail, return receipt requested, postage prepaid, shall be presumed
received 3 business days after the date of mailing.
Communicatenow. Com, Inc.
Attn: Xxxxx Xxxxxxx
0000 Xxxx Xxxxx Xxxxxxx #000
Xxxxxx, Xxxxx 00000
Telephone: 000-000-0000
Fax: 000-000-0000
GULF ATLANTIC PUBLISHING, INC.
0000 Xxx Xxxx
Xxxxxx Xxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxxxxxxxx, President
Telephone: 000-000-0000
Fax: 000-000-0000
J. Headings. The headings in this Agreement are intended solely for
convenience of reference. They shall be given no effect in the construction or
interpretation of this Agreement.
K. Severability. The invalidity or unenforceability of any provision of
this Agreement shall not impair the validity or enforceability of any other
provision.
In Witness Whereof, the parties have executed this Agreement as of the date
first above written.
Attest: Xxxxxxxxxxxxxx.Xxx, Inc.
By: By:
----------------------------------- --------------------------------
Secretary Xxxxx Xxxxxxx
[Corporate Seal]
Attest: GULF ATLANTIC PUBLISHING, INC.
(a Subsidiary of Stratcomm Media, Ltd.)
By: By:
----------------------------------- ----------------------------------
Secretary Xxxx x. Xxxxxxxxxx, President
[Corporate Seal]
EXHIBIT A
Advertising and Promotional Services
The services to be provided are as follows:
1. Confidential Fax Alert regarding the company to a minimum of 10,000 U. S.
stock brokers.
2. 50,000 E-Mail Alert to our subscriber database including the Acorn IPO
database.
3. 50,000 Financial Sentinel advertising including One (1) color
brochure"Piggy", and One (1) Express Gram., with our monthly Newsletter.
The parties hereto by signing this Exhibit in the space provided below
signify their agreement regarding the service to be provided by GAP under the
Agreement.
Xxxxxxxxxxxxxx.Xxx, Inc.
By: ________________________________
Xxxxx Xxxxxxx, President
Gulf Atlantic Publishing, Inc.
By: ________________________________
Xxxx Xxxxxxxxxx, President
EXHIBIT B
Client hereby designates the following person or persons to act on its behalf
for the purpose set forth in the Agreement.
------------------------------------ ---------------------------------
DIRECTOR (PLEASE SIGN) DIRECTOR (PLEASE PRINT)
------------------------------------ ---------------------------------
PRESIDENT (PLEASE SIGN) PRESIDENT (PLEASE PRINT)
------------------------------------ ---------------------------------
VICE PRESIDENT (PLEASE SIGN) VICE PRESIDENT (PLEASE PRINT)
Initial_______
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EXHIBIT C
COMPENSATION
1. Client agrees to pay to GAP One Hundred Twenty-five Thousand (125,000)
restricted shares pursuant to Rule 144 of the General Rules and Regulations
under the Securities Act of 1933.
2. The parties agree that this is a 90-day contract, which will commence upon
the signing and payment in full of the contract.
3. The parties also agree that this contract for 90 days is the basis for
expanding said contract to a one (1) year contract. At the time of
expansion of the instant contract the terms and conditions for such
expansion will be agreed upon between the parties.
4. XxxxxxxxxxxXxx.Xxx Inc. understands and acknowledges that GAP is receiving
a payment of 75,000 free trading shares of stock in the Company from a
third party non-affiliate shareholder as further compensation.
The parties hereto by signing this Exhibit in the space provided below signify
their agreement to the compensation provisions contained herein.
XxxxxxxxxxxXxx.Xxx, Inc.
By: _______________________________
Xxxxx Xxxxxxx, President
Gulf Atlantic Publishing, Inc.
By: ______________________________
Xxxx Xxxxxxxxxx, President
