EXHIBIT 10.4
FINANCIAL PUBLIC RELATIONS
CONSULTING AGREEMENT
This Financial Public Relations consulting Agreement made as of the 28th
day of October, 1998, by and between MILAN CAPITAL GROUP, INC., having its
principal office located at 000 Xxxxxxxxxxx Xxxx, Xxxxx 000x Xxxxxxxx, Xxx Xxxx
00000 (hereinafter referred to as the "Consultant") and ERHC (the "Company"), an
environmental remediation corporation having its principal office located at 0-0
Xxxxxx Xxxxxx, Xxxxxx Xxx, Xxx Xxxx 00000.
Recitals
WHEREAS, the Company, a public company, requires financial public relations
services and assistances and desires to employ Consultant, as an independent
contractor Consultant, to provide such services, and Consultant is agreeable to
such employment, and the parties desire a written document formalizing their
relationship and evidencing the terms of their agreement:
Agreement
NOW, THEREFORE, intending to be legally bound and in consideration of the
mutual promises and covenants, the parties have agreed as follows:
1. Appointment: The Company hereby retains the Consultant as its financial
public relations counsel and hereby retains and employs Consultant, on the terms
and conditions of this Agreement. The consultant accepts such appointment and
agrees to perform the services in accordance with the terms and conditions of
this Agreement.
2. Term: The term of this Agreement shall begin on October 28, 1998 and
shall terminate on October 28, 1999.
3. Services:
(A) Consultant shall act, generally, as an financial
public relations counsel essentially. Acting: (1) as
a liaison between the Company and its stockholders;
(2) as an advisor to the company with respect to
existing and potential market makers, broker-dealers,
underwriters, and investors as well as being a
liaison between the Company and such persons; and (3)
as an advisor to the company with respect to
communications and information (e.g. interviews,
press releases, shareholder reports, etc.).
As well as planning, designing, developing,organizing
writing and distributing such communications and
information as the company may request or direct.
(B) As the Company shall request or direct, Consultant
shall assist in establishing, and advise the company
with respect to: shareholder meetings, interviews of
Company officers by analysts, market makers,
broker-dealers, and other members of the financial
community, both in the United States and in Europe.
(C) Consultant shall seek to make the Company, its
management, its products, and its financial situation
and prospects known to the financial press and
publications, broker-dealers, and other members of
the financial community, both in the United States
and Europe.
(D) As the Company shall request or direct, Consultant
shall act, generally as a financial public relations
counselor to the Company, including: (1) introducing
the Company to broker-dealers, market makers, banks,
financial advisors, financial institutions and
potential investors, both in the United States and in
Europe; (2) introducing the Company to potential
business partners and customers; and (3) arranging
interviews and analyst meetings, and securing
invitation of the Company to appropriate conferences
and busines events, and similar financial public
relations events.
(E) The initial services to be rendered by Consultant,
at COMPANY'S expense, shall be (1) securing of TV and
radio interviews and placement of at least one
magazine profile; (2) the fulfillment and
distribution of leads generated by promotions
throughout the broker network; (3) weekly conference
call with brokers and investors; (4) 1,2, and 3 shall
be mutually agreed upon by both Consultant and the
Company. The funds required to fulfill these
obligations are to be expended out and mutually
agreed upon by both Consultant and the Company prior
to expenditure.
4. Limitations on Services: The parties recognize that certain
responsibilities and obligations are imposed by other U.S. and foreign
securities laws as well as by the applicable rules and regulations of the MASD,
in-house "due diligence" or "compliance" departments of brokerage house, etc.
Accordingly, Consultant agrees:
(A) Consultant shall NOT release any financial or other
information or data about the Company without the
consent and approval of the Company.
(B) Consultant shall NOT conduct any meeting with
financial analyst without informing and receiving
approval by the Company in advance of the proposed
meeting and the format or agenda of such meeting and
the Company may elect to have a representative of the
Company attend at such meeting.
(C) Consultant shall NOT release any information or data
about the company to any selected or limited
person(s), entity, or group, if the Consultant is
aware that such information or data has not been
generally released or promulgated.
5. Duties of the Company
(A) The Company shall supply Consultant, on a regular and
timely basis, with all approved data and information
about the Company, its management, its products, and
its operations and the Company shall be responsible
for advising Consultant of any facts which would
affect the accuracy of any prior data and information
previously supplied to Consultant so that Consultant
may take corrective action.
(B) The Company shall, from time to time as applicable,
promptly supply Consultant: (i) with full and
complete copies of any and all filings with the
Securities and Exchange Commission and all foreign
securities agencies; (ii) with full and complete
copies of all filings with any stock exchanges; (iii)
with full and complete copies of all shareholder
reports and communications whether or not prepared
with CONSULTANT'S assistance; (iv) with all data and
information supplied to any analyst, broker-dealer,
market maker, or other member of the financial
community; (v) with all consulting agreements signed
by the Company; and (vi) with all product/services
brochures, sales materials, etc.
(C) During the term of this Agreement, Company shall
notify Consultant prior to issuing any shares under
Regulations S, or a form S-8, or under any other
method which results in free trading shares during
the term of this Agreement.
(D) The company shall promptly notify Consultant of any
event which triggers any restricitons on publicity,
together with a statement as to coountires included
within the publicity restriction requirements.
(E) The Company shall, contemporaneously with supplying
information or data to Consultant, notify consultant
if any information or data being supplied to
Consultant has not been generally released or
promulgated.
6. Representation and Indemnification:
(A) The Company shall be deemed to make a continuing
representation of the accuracy of any and all
material facts, material information ,a nd material
data which it supplies to Consultant and the Company
acknowledges its awareness that Consultant will rely
on such continuing representation in disseminating
such information and otherwise performing their
public relations functions.
(B) Consultant, in the absence of notice in writing from
Company, will rely on the continuing accuracy of
material, information, and data supplied by the
Company.
(C) The Company hereby agrees to indemnify Consultant
against, and to hold
Consultant harmless from, any claims, demands, suits,
losses, damages, etc. arising out of CONSULTANT'S
reliance on the general availability of information
supplied to Consultant unless Consultant has been
negligent in fulfilling their duties and obligations
hereunder.
(D) The Company hereby authorizes Consultant to issue
corrective, amendatory, supplemental, or explanatory
press releases, shareholder communications and
reports, or data supplied to analysts,
broker-dealers, market makers, or other members of
the financial community after approval by the Company
7. Compensation: For all financial public relations services rendered
hereunder during the term hereof, Company and/or certain stockholders
("STOCKHOLDERS") shall issue Consultant as follows:
(A) COMPANY shall pay Consultant $12,500 U.S. per month
for the twelve (12) months beginning October 28, 1998
and ending October 28, 1999; payable two (2) months
within ten (10) days of the signing of this
Agreement. This amount will be satisfied in U.S.
dollars.
(B) COMPANY shall issue to Consultant or its assignee Xxx
Xxxxx immediately following execution hereof, 150,000
free trading shares of the common stock of ERHC
through S-8 registration and 100,000 shares of the
common stock of ERHC in thirty (30) days.
(C) COMPANY and/or STOCKHOLDERS shall issue to CONSULTANT
or its assignee Xxx Xxxxx immediately following
execution hereof, the following stock options to
purchase from the Company. These options shall be at
the following strike prices:
75,000 @ 0.75
75,000 @ 1.00
75,000 @ 1.25
75,000 @ 1.50
All options shall be exercisable for a 24-month
period commencing October 28, 1998 and ending October
28, 2000. These options shall be fully registered and
have the same registration rights as any stock
registered by the company following execution of this
Agreement. ERHC (COMPANY) shall take whatever steps
that are necessary to register the shares issued as a
result of the exercise of these options if no other
registration occurs within twelve (12) months hereof.
(D) The parties acknowledge that in negotiating these
fees they recognize that the services contemplated
under this Agreement may not be performed in equal
monthly segments, but may be substantial during the
earlier portion of the term of this Agreement, but
less after the relationships and communication lines
are established directly by the Company. Accordingly,
the lessening of the proportion of services over the
later portion of this Agreement shall not constitute
a breach of Agreement or termination.
(E) The Company shall pay its own costs and expenses
incurred by Consultant in providing the contemplated
financial public relations services, including, but
not limited to: wire service distribution cost (i.e.,
Business Wire). Out-of- pocket expenses for
telephone/facsimile charges, and postage and delivery
services charges as well as compensation to third
party vendors, copywriters, xxxxx xxxxxxx, art and
graphic personnel, printing, etc. provided such
expenses have been approved by the Company. In
addition, all travel and entertainment
expenses of the Consultant on behalf of the Company
shall be approved by the Company prior to the
expenditure.
(F) For all special services, not within the scope of
this Agreement, Company shall pay Consultant such
fees, costs, and expenses as, and when, the parties
shall determine in advance of performance of the
special services provided that the Company has agreed
in advance of the special services.
8. Billing and Payment: For all services compemplated to be rendered
hereunder, and the costs and expenses thereof, the Company shall pay Consultant
on the 1st day of each month as outlined in paragraph 7A, B, C, D, E and F.
9. Relationship of Parties: Consultant is an independent contracts,
responsible for compensation of its own affiliates, agents, employees and
representatives, as well as all applicable withholding therefrom and taxes
thereon (including unemployment compensation) and all workmen's compensation
insurance. This Agreement does not establish any partnership, joint venture, or
other business entity or association between the parties and no party is
intended to have any interest in the business or property of the other by reason
of this Agreement.
10. Termination: This Agreement may be terminated by either the Company or
the Consultant prior to the expiration of the term provided in Paragraph 2 above
as follows:
(A) Upon failure of the other party to cure default
under, or a breach of, this Agreement within ninety
(90) days after written notice is given to such
default of breach by the terminating party. In the
event the Company terminates this Agreement for
breach, the Company will not be obligated to register
Consultant's shares if the Company files a
registration statement;
(B) Upon the bankruptcy or liquidation of the other party
whether voluntary or involuntary;
(C) Upon the other party taking the benefit of any
insolvency law; and/or
(D) Upon the other party having or applying for a
receiver appointed for all or a substantial part of
such party's assets or business.
(E) The Company may terminate this Agreement with ninety
(90) days notice. All monthly cash payments will
cease upon the date of termination. The options
issued under section 7B in the Agreement are exempt
from this clause and remain effective for twenty-four
(24) months.
11. Waiver of Breach: The waiver by a party of a breach of any provision of
this Agreement by another party shall not operate or be construed as a waiver of
any subsequent breach by the breaching party.
12. Assignment: The rights and obligations of the parties under this
Agreement shall endure to the benefit of, and shall be binding upon, the
successors and assigns of the parties.
13. Notices: Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing, and if sent by certified mail,
return receipt requested, to the principal office of the party being notified.
14. Entire Agreement: This instrument contains the entire Agreement of the
parties and may be modified only by agreement in writing, signed by the party
against whom enforcement of any waiver, change, modification, extension or
discharge is sought. If any provision of this Agreement is declared void, such
provision shall be severed from this Agreement, which shall otherwise remain in
full force and effect.
15. Governing Law: This Agreement shall be a contract made in the State of
New York and shall be interpreted and governed by, and construed in accordance
with, the laws of the State of New York.
16. Taxes: Any and all taxes, excises, assessments, levies, interest and
penalties, which may be assessed, levied, demanded, or imposed by any
governmental agency in connection with this Agreement, shall be paid by the
party upon which they are imposed and shall be the sole obligation of such
party.
17. Arbitration: Any controversy or claim arising out of or relating to
this Agreement shall be settled by arbitration in the State of New York in
accordance with the applicable rules of the American Arbitration Association.
18. 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 instrument.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have
executed this Agreement.
ENVIRONMENTAL REMEDIATION
HOLDING CORPORATION (ERHC)
By: Xxx X. Xxxxxxxxx, Xx.
President and CEO
By: Xxxxx X Xxxxxxx
Corporate Secretary
MILAN CAPITAL GROUP, INC.
By: Xxx X. Xxxxx
Managing Director
