MARKET ACCESS PROGRAM MARKETING AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into this 7th day
of July, 2001, by and between Newport Capital Consultants, an Oklahoma
corporation hereinafter referred to as "NC," and ORYX TECHNOLOGY CORP., a
Delaware corporation hereinafter referred to as the "Company".
WITNESSETH
For and consideration of the mutual promises and covenants contained
herein, the parties hereto agree as follows:
1. Employment. The Company hereby hires and employs NC as an
independent contractor; and NC does hereby accept is position as an independent
contractor to the Company upon the terms and conditions hereinafter set forth.
2. Term. The term of this Agreement shall be from the 15th day of July,
2001 through the 31st day
of December, 2002.
3. Duties and Obligations of NC. NC shall have the following duties and
obligations under this Agreement:
3.1 Establish a financial public relations methodology designed to
increase awareness of the Company within the investment community.
3.2 Assist the Company in accurately disseminating information to
the market place, which information has been provided by the Company.
3.3 Expose the Company to a broad network of active retail brokers,
financial analysts, institutional fund managers, private investors and active
financial newsletter writers.
3.4 Conduct a tele-marketing campaign targeted at the investment
community and brokerage community.
3.5 Fax broadcast press releases, broker updates, Company
newsletters to brokers, institutional fund managers, financial analysts, and
accredited investors.
3.6 E-mail press releases, corporate announcements, broker updates,
Company news developments to a targeted e-mail database of brokers,
institutional fund managers, financial analysts, and accredited investors.
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ALL OF THE FOREGOING NC PREPARED DOCUMENTATION CONCERNING THE COMPANY,
INCLUDING, BUT NOT LIMITED TO, DUE DILIGENCE REPORTS, CORPORATE PROFILE FACT
SHEETS, SHALL BE PREPARED BY NC FROM MATERIALS SUPPLIED TO IT BY THE COMPANY AND
SHALL BE APPROVED BY THE COMPANY PRIOR TO DISSEMINATION BY NC.
4. NC Compensation. Upon the execution of this Agreement, the Company
hereby covenants and agrees to pay NC as follows:
4.1 The Company shall issue a warrant to NC to purchase fifty
thousand (50,000) shares of Oryx Technology Corp. Common Stock as described in
the term sheet attached hereto as Exhibit A. The warrant shall expire 60 months
from the date of issuance and shall have the other terms set forth in the term
sheet. The Company shall grant piggy-back registration rights with respect to
the Common Stock issued upon exercise of such warrant pursuant to a filing of an
SEC Registration Statement on Form S-3, or a replacement form as may be
appropriate, by the Company, which may occur at any time following execution of
this Agreement.
5. NC's Expenses and Costs. The Company shall not pay for any costs and
expenses incurred by NC, its directors, officers, employees or agents in
carrying out its duties and obligations pursuant to the provisions of this
Agreement (except for pre- approved airfare).
6. The Company's Duties and Obligations. The Company shall have the
following duties and obligations under this Agreement:
6.1 The Company will cooperate fully and timely with NC so as to
enable NC to perform its obligations under this Agreement.
6.2 Within ten (10) days of the date of execution of this Agreement,
the Company shall deliver to NC a complete due diligence package with respect to
the Company including all of the Company's filings with the Securities and
Exchange Commission within the last twelve months, the last twelve months of
press releases issued by the Company and all other relevant materials with
respect to such filings, including but not limited to corporate reports,
brochures, and the like; and a list of the brokers and market makers in the
Company's securities and which have been following the Company.
6.3 The Company will act diligently and promptly in reviewing
materials submitted to it from time to time by NC and inform NC of any
inaccuracies contained therein prior to the dissemination of such materials.
6.4 The Company will immediately given written notice to NC of any
change in the Company's financial condition or in the nature of its business or
operations which had or might have an adverse material effect on its operations,
assets, properties or prospects of its business.
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6.5 The Company will provide NC with full disclosure of all material
facts concerning the Company and shall update such information on a timely
basis.
7. Nondisclosure. Except as may be required by law, the Company, its
officers, directors, employees, agents and affiliates shall not disclose the
contents and provisions of this Agreement to any individual or entity without
the expressed written consent of NC, subject to disclosing same further to the
Company's legal counsel, accountants and other persons performing investment
banking, financial, or related functions for the Company.
8. The Company Representations and Warranties. The Company represents
and warrants to NC for the purpose of inducing NC to enter into and consummate
this Agreement as follows:
8.1 The Company has the power and authority to execute, deliver and
perform this Agreement.
8.2 The execution and delivery by the Company of this Agreement have
been duly and validly authorized by all requisite action by the Company. No
license, consent or approval of any person is required for the Company's
execution and delivery of this Agreement.
8.3 This Agreement has been duly executed and delivered by the
Company and is the legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its respective terms, subject
to the effect of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar law affecting creditors' rights generally and to general
principles of equity.
8.4 The execution and delivery by the Company of this Agreement do
not conflict with, constitute a breach of or a default under: (i) any applicable
law, or any applicable rule, judgment, order, writ, injunction, or decree of any
court; (ii) any applicable rule or regulation of any administrative agency or
other governmental authority; (iii) the Certificate of Incorporation or By-Laws
of the Company; or (iv) any agreement, indenture, instrument or contract to
which the Company is now a party or by which it is bound.
8.5 No representation or warranty by the Company in this Agreement
and no information in any statement, certificate, exhibit, schedule or other
document furnished, or to be furnished by the Company to NC pursuant hereto, or
in connection with the transactions contemplated hereby, contains or will
contain any untrue statement of a material fact, or omits or will omit to state
a material fact necessary to make the statements contained herein or therein no
misleading. There is no fact which the Company has not disclosed to NC, in
writing, or in SEC filings or press releases, which materially adversely
affects, nor, so far as the Company can now reasonably foresee, may
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adversely affect the business, operations, prospects, properties, assets,
profits or condition (financial or otherwise) of the Company.
9. Miscellaneous.
9.1 Notices. Any notice or other communication required or permitted
to be given hereunder shall be in writing, and shall be deemed to have been duly
given when delivered personally or sent by registered or certified mail, return
receipt requested, postage prepaid to the parties hereto at their addresses
indicated hereinafter. Either party may change his or its address for the
purpose of this paragraph by written notice similarly given. The Parties'
addresses are as follows:
COMPANY: Oryx Technology Corp.
0000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxx, CFO
NC: Newport Capital Consultants Inc.
3 Xxxxxx
Xxxxxxx Xxxxx, XX 00000
9.2 Entire Agreement. This Agreement represents the entire agreement
between the Parties in relation to its subject matter and supersedes and voids
all prior agreements between such Parties relating to such subject matter.
9.3 Amendment of Agreement. This Agreement may be altered or
amended, in whole or in part, only in a writing signed by both Parties.
9.4 Waiver. No waiver of any breach or condition of this Agreement
shall be deemed to be a waiver of any other subsequent breach or condition,
whether of a like or different nature, unless such shall be signed by the person
making such waiver and/or which so provides by its terms.
9.5 Captions. The captions preparing in this Agreement are inserted
as a matter of convenience and for reference and in no way affecting this
Agreement, define, limit or describe its scope or any of its provisions.
9.6 Status. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
9.7 Benefits. This Agreement shall inure to the benefit of and be
binding upon the Parties hereto, their heirs, personal representatives,
successors and assigns.
9.8 Severability. If any provision of this Agreement shall be held
to be invalid or unenforceable, such invalidity or unenforceability shall attach
only to such
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provision and shall not in any way affect or render invalid or unenforceable any
other provision of this Agreement, and this Agreement shall be carried out as if
such invalid or unenforceable provision were not contained herein.
9.9 Arbitration. Except as to a monetary default by the Company
hereunder, any controversy, dispute or claim arising out of or relating to this
Agreement or the breach thereof shall be settled by arbitration. Arbitration
proceedings shall be conducted in accordance with the rules then prevailing of
the American Arbitration Association or any successor. The award of the
arbitrator shall be binding on the Parties. Judgment may be entered upon an
arbitration award of in a court of competent jurisdiction and confirmed by such
court. Venue for arbitration proceedings shall be any mutually agreeable
location within the State of California. The costs of arbitration, reasonable
attorneys' fees of the Parties, together with all other expenses, shall be paid
as provided in the arbitration award.
10.10 Currency. In all instances, references to monies used in this
Agreement shall be deemed to be United States dollars.
10.11 Multiple Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, and all of
such counterparts shall constitute one (1) instrument.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the day
and year first above written.
ORYX TECHNOLOGY CORP.
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------
Name: Xxxxxxx Xxxxxxxxx
Title: CFO
NEWPORT CAPITAL CONSULTANTS
By: /s/ Xxxx X Xxxxxx
-----------------
Name: Xxxx X Xxxxxx
Title: President
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EXHIBIT A
TERM SHEET
