Exhibit 10.16
Agreement between the Registrant and
Visual Response Media Group, Inc., dated
February 3, 2004
Agreement
New Millennium Media International, Inc.
Visual Response Media Group Inc.
THIS AGREEMENT is effective the 3 day of February 2004 between New Millennium
Media International, Inc., (hereafter referred to as "NMMI") with its principal
place of business at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇ and Visual Response Media Group, Inc., (hereafter referred to as "VRMG")
with its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Tel:
▇▇▇ ▇▇▇ ▇▇▇▇, Fax:▇▇▇ ▇▇▇ ▇▇▇▇
WHEREAS, NMMI is the business of supplying, distributing and placing electronic
and static display boards (including upgrades, sings, containers, attachments,
accessories and artwork contained in the display boards) hereafter referred to
as EyeCatcherPlus displays.
WHEREAS, throughout the past few years the status of VRMG as a distributor of
NMI, locates, places and sells advertisements, in EyeCatcherPlus Display Boards
within various locations, stores, offices an businesses in select locations in
the states of Michigan;
WHEREAS, throughout the past few years the status of VRMG as contracting party
with NMMI regarding the EyeCatcherPlus displays has grown from that of
distributor, to licensee to sales general management and now the terms as noted
in this Agreement
WHEREAS, NMMI and VRMG have negotiated this Agreement as a total novation and
substitute for all contracts and agreements among the parties hereto currently
in existence
NOW THEREAFTER, for in consideration of the mutual covenants and undertakings
described herein and one dollar and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. NMMI hereby conveys an assigns to VRMG all right, title and interest that
NMMI has relating to EyeCatcherPlus and Drive Times Network along with all
collateral material, manuals, etc. excluding, however, the inventory of
EyeCatcherPlus displays consisting of EyeCatcherPlus attached hereto. This
conveyance is subject to a security interest held by NMMI on all assets
and property rights conveyed hereby. NMMI will provide to VRMG all
necessary and pertinent information in its possession relating the
EyeCatcherPlus displays to assist VRMG in marketing the EyeCatcherPlus
displays. VRMG will be responsible for all costs of printing of all
marketing, sales and solicitation literature.
2. _______ NMMI owns and possesses the EyeCatcherPlus display as shown on the
attached inventory of various sizes and condition. NMMI hereby grants to
VRMG the absolute and exclusive right to place 50 of the NMMI
EyeCatcherPlus displays currently in the NMMI inventory at such host venue
locations as are suitable for the sale of advertising posters to be
displayed in the EyeCatcherPlus displays.
3. VRMG shall be responsible for all display and will assure that each site
location (host venue) has proper insurance to cover each display against
fire and theft in amounts and terms no less beneficial to NMII as the
beneficiary than the current fair market value of each individual display.
VRMG shall produce, upon request, proof of insurance coverage for all
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displays under VRMG's control. VRMG shall Indemnify NMMI from any and all
liability arising out of the advertisements a placement of any such
display boards.
4. No later than at the time of delivery of the EyeCatcherPlus display at
each host venue, VRMG shall have the owner or legal occupant of each host
venue where documents. Such fully executed Partners in Profit documents
that contain no less than the name and address of the host, the length of
the term for placement of the EyeCatcherPlus display and the monetary
remuneration arrangement between VRMG and the host and signatures of VRMG
and the host. A fully executed copy of said Partners in Profit shall be
sent to NMMI within 30 days of delivery of the EyeCatcherPlus display to
the host venue
5. As advertisements are sold for the posters to be displayed in the
EyeCatcherPlus displays, within 30 days from the execution of each
advertising sale contract, copies of all advertising sales contracts along
with payment to NMMI of 5% of the gross advertising sale revenue shall be
delivered to NMMI.
6. VRMG represents that it will have fully authority from the advertiser to
utilize any trademark, logo, or copyrighted material used in the proposed
advertisement. VRMG agrees to hold harmless and defend NMMI against any
and all legal actions that arise from any such dispute and/or
infringement. NMMI reserves the right to refuse or withdraw any
advertisement copy that, in its discretion, is considered unlawful,
detrimental or otherwise in the reasonable discretion of NMMI is
determined to be objectionable
7. When average of at least four annual advertisements per EyeCatcherPlus
display for each of the 50 display have been sold and paid, the next 50
displays shall be available to VRMG for placement and all of the same
terms and conditions shall apply to the second 50 EyeCatcherPlus displays
as stated herein for the first 50 displays. No further release of
EyeCatcherPlus display to VRMG shall be permitted until the said minimum
of 4 annual paid advertisements average per display is maintained. This
same procedure shall be followed for groups of 50 EyeCatcherPlus displays
until all of the display of NMMI in inventory have been placed at host
venue locations.
8. VRMG shall notify NMMI in writing regarding any and all changes regarding
any matter relating to host venue and/or advertising, including, but not
limited to relocation of any EyeCatcherPlus display and/or changes
relating to advertising contract and advertising rates.
9. Although NMMI shall continue to retain ownership of the displays until
contingencies as noted hereafter occur, VRMG shall maintain all
EyeCatcherPlus display once the display leave the NMMI warehouse in Safety
Harbor Florida prior to shipment to VRMG designated destination
10. Once the NMMI inventor of displays is depicted, parties, NMMI and VRMG,
shall negotiate regarding the purchase of additional display to be paid
for by without obligation to pay NMMI any percentage of sales
11. VRMG shall inform NMMI by monthly accountings regarding the statue of each
display relating the host venue location contracts, advertising sales
contracts and current location of all displays
12. VRMG shall pay monthly to NMMI 5% of all gross advertising sales revenue
received from the placement of the EyeCatcherPlus displays and all
advertising space sold. The 5% shall be paid monthly and verified by month
accountings sent to NMMI along with the monthly payment remittance.
Because the 5% remittance to NMMI is of all gross revenues received by
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VRMG from the placement of the EyeCatcherPlus displays and all advertising
space sold, VRMG may pay any percent sales commission and host venue fees
that it chooses without any effect on the 5% gross entitlement to NMMI.
NMMI shall receive the 5% of all gross revenue until which time the net
cost $ mount to be determined per the inventory attached hereto is
recovered by NMMI through the 5% remittance noted above. VRMG is not
obligated to purchase additional display products from NMMI other than the
pre-agreed listed inventory.
13. At the closing on this agreement, VRMG shall issue in the name of NMMI 15%
equity ownership by NMMI in VRMG. This 15% equity ownership position shall
be non-dilutive an shall apply to any and all entities that come into
existence by or though VRMG and its principals, officers and directors for
any purpose relating directly or indirectly, to the EyeCatcherPlus display
business
14. All books of account, accounting records, bank account records, corporate
records, and business contracts shall be open for inspection by an
authorized representative of NMMI at all reasonable times and places.
15. NMMI is in the process of negotiating for the return to NMMI from
international Marketing Systems, Inc. certain shares for common stock and
stock warrants. Upon receipt by NMMI from international Marketing Systems,
Inc., NMMI shall issue to VRMG warrants to purchase up to 200,00 shares of
NMMI common stock at a per share price of $0.50 for two years. NMMI shall
use its best effort to affect the return of the shares and warrants from
International Marketing System, Inc.
16. NMMI shall contribute to VRMG the monthly sum of $5,000 for a period of 5
months beginning within 3 days from delivery of a fully executed copy of
this agreement to NMMI, provided that VRMG continues to place displays and
continues to diligently work to build the EyeCatcherPlus display business
by placing the EyeCatcherPlus displays at host venues and placing paid
advertising posters in said displays in accord with the terms of this 50
displays within 180 days from delivery of the first 50 displays
17. All graphic design and printing shall be by NMMI or VRMG as agreed by the
parties from time-to-time. The NMMI charges for graphic design and
printing shall be the standard and customary charge that NMMI charges
other advertising customers. The charges are as follow:
Regarding the from-lit display boards:
11x17 and 17x22 poster, exact duplicates without any additional work are $15
each.
20x30 and 27x40 poster size-the charge for printing that requires no creative
work is $75 per poster exact duplicated without any additional work are $25
each.
40x60 and 48x72 poster size-the charge for printing that requires no creative
work is $75 per poster, exact duplicated without any additional work are $55
each
Regarding back-lit display board:
18x24 poster sizes-the charge for printing that requires no creative work is $35
per poster, exact duplicates without any additional work are $25 each.
24x36 poster sizes-the charge for printing that requires no creative work is $55
per poster, exact duplicates without any additional work are $35 each.
36x48 poster sizes-the charge for printing that requires no creative work is $95
per poster, exact duplicates without any additional work are $65 each.
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48x60 poster sizes-the charge for printing that requires no creative work is
$125 per poster, exact duplicates without any additional work are $95 each.
Creative artwork services supplied by NMMI in designing, compiling and/or
touchup of existing artwork shall be billed at the hourly rate of $45 in minimum
increments of 30 minutes each. Before this additional charge is uncured. NMMI
shall retain ownership of all artwork created by NMMI. NMMI reserves the right
in its sole discretion to reject an unsuitable artwork.
All Artwork fees are subject to an annual increase at a rate of five percent
(5%) over the prior year's amount beginning January 1, 2005. Please note that
all monetary amounts are in US dollar f.o.b. Safety Harbor, Florida; these
prices do not include duty, tariff and sales tax (if applicable)
18. VRMG hereby releases, remises and forever discharges NMMI and the
respective, successors, assigns, officers subsidiaries, affiliated,
directors and employees of NMMI (hereafter referred to collectively as
"NMMI") from any and all rights, claims, demands, actions, and causes of
action, whether known or unknown, suspected of unsuspected, contingent or
otherwise which VRMG may have or may claim to have against NMMI as of the
date of this General Release (hereafter referred o as "Claims"). VRMG
represents and warrants o NMMI that: (a) no entity in which VRMG has an
equity interest has any Claims released in this General Release. VRMG
agrees to indemnify, defend, and hold harmless NMMI from all loss,
liability, claim, damage or expense involving third party claims, arising
from or in connection with: (i) the assertion by or on behalf of VRMG of
any Claim purported to be released hereunder, (ii) the assertion by any
third party or any claim against NMMI which claim arises from an assertion
by or on behalf of VRMG against such third part of an Claims or other
matters purported to be released hereunder, and (iii) any assignment or
transfer or Claims. The Releasing Part agrees to keep confidential all
matters related to this General Release and agrees not to discuss with
anyone or otherwise communicate orally or in writing concerning any of the
Release Parties, except for disclosure to the Releasing Party's lawyer or
accountant and disclosure pursuant to judicial or administrative order
19. If, at any time VRMG becomes delinquent in any of its payments to NMMI
pursuant to any of the term of this agreement and all other agreements and
ancillary pursuant to any of the terms to this agreement, NMMI, in
addition to any other remedy to which may be entitled shall the right, at
its sole discretion, remove any EyeCatcherPlus display at the expense of
VRMG. There is no grace period and time is of the essence for all payments
due under this Agreement. VRMG hereby releases and holds harmless NMMI
from any and all liability and/or legal action and damage resulting from
removal of any EyeCatcherPlus displays because of non-payment
20. Any notice, demand or request required or permitted to be given hereunder
shall be in writing and shall be deemed effective five (5) business days
after having been deposited in the United States Mil, postage prepaid,
registered or certified and addressed VRMG or NMMI to the address listed
in this Agreement by written notice given in accordance herewith.
21. Either party shall have the right to terminate this Agreement upon the
occurrence of any of the following events:
a. Breach or default by the other party of any of term, obligations,
covenants, representations or warranties under this Agreement. In
such case, the non-defaulting party shall notify the other party of
such alleged beach or default and that party shall have 5 days to
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cure the default except for the payment of money which shall be
deemed to be a default if not promptly paid when due as stated
herein
b. The party is declared insolvent or bankrupt or makes an assignment
for the benefit of creditors or a receiver is appointed or any
proceeding is demanded by, for or against the other party under any
provision of the Bankruptcy Code or any amendment thereof Upon
termination of this Agreement. VRMG will immediately supply to NMMI
an assignment of benefits pertaining to all accounts relating to
this Agreement as well as up-to-date documents, books of account,
leases, invoices and all records pertinent and relevant for NMMI to
determine the then present status of the leases, payments, receipts
and all terms of all agreements with dealer and site location owners
22. VRMG shall not, during the effective terms of this Agreement including all
extensions and renewals thereto, and for one year thereafter, either
individually or though agents or employees, directly or indirectly; (a)
abstain the EyeCatcherPlus displays or any product that competes with the
EyeCatcherPlus displays for resale or lease or placement from any person
or entity other than NMMI and (b) within the geographical territory of
Michigan, place any product that competes with the EyeCatcherPlus displays
and pace any advertising material that competes with the EyeCatcherPlus
displays
23. The Effective date of this Agreement shall expire exactly ten (10) years
after the date of this contract unless extended in writing signed by both
parties hereto
24. VRMG covenants and agrees to defend, indemnify and hold harmless NMMI and
its officer, directors, employees, attorneys, accountants, affiliates and
agents from and against, and pay or reimburse NMMI for any and all
liabilities, obligations, losses, costs, deficiencies or damages (whether
absolute or accrued or consequential including interest, penalties and
reasonable attorneys' fees and expense uncured in the investigation or
defense of any of the same or in asserting any of their respective rights
hereunder (collectively, "Losses') resulting from or arising our of:
(i) Any act of negligence or willful misconduct by VRMG or any of its
agents, employees or franchises, or as a result of VRMG'S Breach of
contract with any third party, unless such breach resulted from the
acts or omissions of NMMI or NMMI' supplier(s) and
(ii) Any and all liability losses resulting from VRMG's performance under
this Agreement except to the extent that such losses arise out of or
related to NMMI's or its suppliers' negligence or willful
misconduct, including, without limitation, a manufacturing or design
defect or the EyeCatcherPlus displays.
In the case of any claim asserted by a third party against NMMI, notice
shall be given by NMMI to VRMG promptly after NMMI has actual knowledge of
any claim to which indemnity may be sought and NMMI shall permit VRMG (at
the expense of VRMG to assume the defense of any claim or any litigation
resulting her from provided that:
(i) Counsel for VRMG, who shall conduct the defense of such claim or
litigation, shall be reasonable satisfactory to NMMI< and NMMI may
participate in such defense, but only at NMMI's expense and without
any indemnification for such expense pursuant to this Section and
(ii) The omission by NMMI to give notice as provided herein shall not
relive VRMG of its indemnification obligation under this Agreement
except to the extent that such omission results in a failure or
actual notice to VRMG and VRMG is damaged as a result of such
failure of actual notice to VRMG
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VRMG, in the defense of any such claim or litigation, shall not, except
with the consent of NMMI:
(i) Consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by the
claimant or plaintiff to NMMI of a release from all liability with
respect to such claim or litigation or
(ii) Pursue any course of defense of any claim subject to indemnification
hereunder, if NMMI shall reasonably and in good faith determine that
the liability or ability to conduct its business. In the event that
NMMI shall reasonably and in good faith determine that any proposed
settlement of any claim subject to indemnification hereunder by VRMG
might be expected to affect adversely NMMI's tax liability or
ability to conduct its business, NMMI shall have the right at all
times to take over and assume control over the settlement,
negotiations, or lawsuit relating to any such claim at the sole cost
of VRMG, provided that if NMMI does so take over and assume control,
the amount of the indemnity required to be paid by VRMG shall be
limited to the amount VRMG is able to reasonably demonstrate that it
could have settled the matter for immediately prior to the time of
assumption. Adverse tax consequence or words of similar meaning in
he context as used above mean any increase in tax liability of NMMI
In the event that VRMG does not accept the defense of any matter as above
provided, NMMI shall have the full right to defend against any such claim
or demand shall be entitled to Settle or agree to pay in full such claim
or demand, in its reasonable discretion. NMMI shall not Settle any action
without VRMG's prior written consent, which consent will not unreasonable
be withheld. In any event, all parties shall cooperate in the defense of
any action or claim subject to this Agreement and the records or each
shall be available to the other with respect to such defense
25. General Provisions
(a) This Agreement shall be constructed in accordance with the laws of
the State of Florida and all actions an o disputes involving or
surrounding this Agreement shall have the venue of Pinellas County,
Florida.
(b) This Agreement may be modified or amended only in writing signed by
all parties
(c) Any notice, demand or request required or permitted to be given by
the parties hereto pursuant to the terms of this Agreement shall be
in writing and shall be deemed given when delivered personally
evidenced by signed receipt or deposited with a national overnight
courier service or deposited in the U.S. mail certified, return
receipt requested, with postage prepaid and addressed to the parties
at the addresses of the parties set forth herein or such other
address as a part may notify the other in writing in accordance with
terms hereof
(d) This Agreement constitutes the entire Agreement between the parties
concerning the subject matter hereof and supersedes all prior and
contemporaneous agreements between the parties. Neither party is
relying upon any warranties, representations or inducements not set
forth herein.
(e) The rights and obligations of the parties to this Agreement may only
be assigned with the prior written consent of the other party to
this Agreement
(f) Any party's failure to enforce any provision or provisions of this
Agreement shall not in a way be construed as a waiver of any such
provision or provisions, or shall it prevent that party thereafter
from enforcing each and every other provision of this Agreement. The
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rights granted both parties herein are cumulative and shall not
constitute a waiver of any party's right to asset all other legal
remedies available to such party under the circumstances
(g) Each of the parties to this Agreement agrees upon request to execute
any further documents or instrument necessary or desirable to carry
out the purpose or intent of this Agreement, provided that no
additional obligations or cost shall be incurred as a result of such
document or instrument
(h) This Agreement may be executed in separate counterparts, each of
which is deemed to be an original and all of which taken together
constitute one and the same Agreement
(i) Except as otherwise prided herein, this Agreement hall bind and
inure to the benefit of and be enforceable by the parties and their
respective successors and assigns and any person or entity
acquiring, whether by merger, consolidation, purchase of assets or
otherwise, all or substantially all of the party's assets and
business. VRMG shall not assign any of its rights nor obligations
provided in this Agreement without the prior written consent of
NMMI. Said consent shall not be unreasonable withheld
(j) Each person signing this Agreement on behalf of the parties hereof
represents that he has full and proper legal authority to bind the
entity for which he singed this Agreement and that the said entity
is fully bound by the terms of this Agreement
(k) Nothing set forth in this Agreement shall be deemed to constitute or
be constructed to crate a partnership, principal-agent, or joint
venture relationship between the parties. Neither part has the
authority to act on behalf of the other party or to bind the other
party by contract or otherwise, uses expressly permitted by this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth above
New Millennium Media International, Inc.
By________________________________
▇▇▇▇ "JT" Thatch, President/CEO
Visual Response Media Group, Inc.
By____________________________
▇▇▇▇▇▇ Garahott, President
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GENERAL RELEASE
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
FOR VALUE RECEIVED, the undersigned, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the "Releasing Party"),
hereby releases, remises and forever discharges new Millennium Media
International, Inc. (NMMI), each entity in which ▇▇▇▇ "JT" Thatch holds or held
an equity interest or serves or served as an officer, director, agent, or
employee, and the respective heirs, personal representatives, successors,
assigns, officer, subsidiaries, affiliates, directors, and employees of each of
the foregoing (collectively the "Released Parties) from any and all rights,
claims, demands, actions, and causes of action, whether known or unknown,
suspected or unsuspected, contingent or otherwise which the Releasing Party may
have or may claim to have against any of the Released Parties (Collectively
"Claims") as of the date of this General Release.
Releasing Party Represents and warrants to NMMI that; (a) no entity in which
Releasing Party has an equity interest has any Claims against NMMI and (b)
Releasing Party has not assigned or transferred to any person or entity any
Claims released in this General Release. Releasing Part agrees to indemnify,
defend, and hold harmless NMMI from all loss, liability, claim, damage or
expense involving their party claims, arising from or in connection with: (i)
the assertion by or on behalf of Releasing Party of any Claim purported to be
released hereunder, (ii) the assertion by any third party of any claim against
NMMI which claim arises from any assertion by or on behalf of Releasing Party
against such third party of any Claims or other matters purported to be released
hereunder, and (iii) any assignment or transfer of claims. The Release and
agrees not to discuss with anyone or otherwise communicate orally or in writing
concerning any of the Released Parties, except for disclosure to the Releasing
Party's lawyer or accountant and disclosure pursuant to judicial or
administrative order
IN WITNESS WHEREOF, the undersigned has executed this General Release this 3rd
day of February 2004
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