FINANCIAL PUBLIC & INVESTOR RELATIONS AGREEMENT
THIS FINANCIAL PUBLIC & INVESTOR RELATIONS AGREEMENT (the "Agreement") is made
effective this 3rd day of October, 2005 (the "Effective Date") by and between
Strategic Growth International, Inc., a Delaware corporation whose principal
offices are located at 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx , Xxx Xxxx, XX 00000
(hereinafter referred to as the "Consultant" or "SGI")) and Xxxxx World Trade,
Ltd., a Nevada corporation whose principal offices are located at 000-00 000xx
Xxxxxx, Xxxxxxx, XX 00000 (hereinafter referred to as the "Client" or the
"Company").
RECITALS
A. WHEREAS Consultant is experienced in providing financial public
relations and investor relations services to micro-cap public
companies and has developed relationships with retail stock brokers,
individual investors, institutional investors, investment bankers,
which will assist the Client in enhancing the market recognition of
the underlying fundamental value of the Client's publicly traded
shares and raising debt and/or equity capital.
B. WHEREAS Client wishes to engage the financial public and investor
relations advisory services of Consultant specifically to advise,
assist, consult and provide the services discussed in Sections A.
thru D.
C. Consultant agrees to be retained for the foregoing purposes, subject
to the terms and conditions provided in this Agreement.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are expressly acknowledged, Client and
Consultant agree as follows:
[1] Scope of Representation. Client grants Consultant permission to provide
Client with the investor relations services on a non-exclusive basis described
in Sections [2]a. through [2]d. below.
[2] Engagement and Services of SGI. Strategic Growth International, Inc. will
develop a comprehensive financial relations strategic plan with the following
goals, all of which are designed to achieve increased and sustained share value:
a. Implement a comprehensive and aggressive investor relations program
with the main purpose of introducing the Company to institutional
investors, money managers, and high net worth brokers both in the U.S. and
Europe.
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b. Obtain invitations to and coordinate participation in financial
industry conferences.
c. Assist with day-to-day investor communications (i.e. shareholders
calls, scheduling appointments, sending introductory and follow-up
materials).
d. Provide professional staff services as may be reasonably required to
help the Company carry out its programs and objectives as outlined below:
(i). Develop a coordinated package of financial public relations
materials, including PowerPoint, fact sheet, press releases,
corporate package, etc., that is acceptable to the Company. SGI will
also prepare the initial draft M,D&A material for the Company's Form
10-Q and 10-K reports and review the final draft before filing, and
review and advise on features and functionality of the website in
this regard.
(ii). Immediately introduce the Company to financial intermediaries
with the goal of fulfilling the Company's financial needs.
(iii). Increase liquidity in the Company's stock with the goal of
attaining new market makers and introducing the Company to
professionals in the investment community.
(iv). Develop institutional ownership in the Company's stock.
(v). Assist in obtaining research from reputable institutional sales
boutiques and small cap research analysts.
(vi). Create financial media opportunities for the Company as
appropriate.
(vii). Obtain invitations to and coordinate participation in
financial industry conferences.
(viii). Coordinate all day-to-day investor relation's activities -
press releases, dissemination of information, earnings conference
calls, etc.
(ix). Assist in creating opportunities for European buying in the
Company's stock.
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A. In conducting the foregoing efforts, Consultant will rely on the Client to
provide all necessary information regarding the Client and its business.
The Client will furnish Consultant with all relevant publicly available
material and information regarding the business and financial condition of
Client that will be accurate and complete in all material respects at the
time furnished and will represent their best estimates of future
performance in the context of all applicable U.S. Federal and State
securities laws and the Securities Exchange Act of 1934, as amended
(hereinafter the "Act"), with specific reference to required material
disclosures and standard disclaimers regarding estimates of future
performance. Consultant will be relying, without independent verification,
on the accuracy and completeness of all financial and other information
that is and will be furnished to Consultant by the Client. Any advice
rendered by Consultant pursuant to this Agreement may not be disclosed
publicly in any manner without Consultant's prior written approval and
will be treated by Client and Consultant as confidential. Under no
circumstances shall Consultant be required to provide any services
pursuant to this Agreement that would require registration or other
filings by Consultant under any United States federal or state securities
laws.
B. In the event the Client provides any non-public information to the
Consultant, in connection with this Agreement or otherwise, the Consultant
agrees to maintain such information in confidence in compliance with
Regulation FD.
[3] Consultant's Expenses. Throughout the term of this Agreement, the Consultant
shall provide the types of services set forth in Sections A through E and
Section 2. Consultant shall perform such services at and from its principal
place of business. Consultant shall be entitled to reimbursement by the Company
for ordinary and reasonable expenses incurred during the performance of this
Agreement, provided the Consultant obtains Client's prior written authorization
to incur such expenses.
[4] Independent Contractor: No Power to Bind. Consultant is not an employee of
the Client for any purpose whatsoever, but is an independent contractor. The
Client is interested only in the results obtained by the Consultant, and
Consultant shall have, subject to the terms of this Agreement, sole control of
the manner and means of performing under this Agreement. Consultant does not
have the right or authority to create a contract or obligation either express or
implied, on behalf of, in the name of or binding upon the Client or to pledge
the Client's credit, or to extend credit in the Client's name unless otherwise
agreed in writing. Consultant shall have no right or authority to commit Client
in any manner without the prior written consent of the Client.
[5] Compensation. Client hereby covenants and agrees to pay Consultant the
following compensation:
[a] The Company will pay SGI a monthly retainer fee of $6,000 (six
thousand dollars) per month for the term of this agreement. The first
month will be paid immediately upon execution of this Agreement. The
monthly retainer shall commence on October 3, 2005 for 12 months, unless
the Agreement is terminated by Client as discussed in Section [6].
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[b] The Company will pay SGI(1) two hundred thousand (200,000) newly
issued restricted common shares (the "Shares") after the execution of this
Agreement and the Xxxxx Subscription Agreement for such Shares, and
warrants to purchase four hundred thousand (400,000) restricted shares at
the market price on the day of issuance for a term of five (5) years,
which will be exercisable commencing February 1, 2007. All of the Shares
will be subject to the lock up agreement attached to this Agreement as
"Schedule A", and will have piggy-back registration rights for one year
(as provided in Schedule B, "Registration Rights Provisions," annexed
hereto) and can be transferred in whole or part to one or more officers of
SGI. The Company shall instruct its transfer agent to issue the necessary
stock certificates, and shall instruct its counsel to issue the necessary
written opinion of counsel for the Company confirming that said shares are
validly issued, fully paid and non-assessable and that the issuance and
eventual transfer of them to Consultant has been duly authorized by the
Company. Company warrants that all common shares issued to Consultant
pursuant to this Agreement shall have been validly issued, fully paid and
non-assessable and that the Company's board of directors shall have duly
authorized the issuance, and any transfer of them to Consultant.
[c] The Company shall review the performance of the Consultant under this
agreement on May 1, 2006. If the Company's review concludes that
Consultant's performance is not satisfactory to the Company, the Company
may cancel one hundred thousand (100,000) of the Shares, and shall send
notice to the Consultant of the results of its review.
[6] Term. The term of this Agreement shall be from the Effective Date (October
3, 2005) of the execution of this Agreement through October 2, 2006. This
Agreement and Consultant's engagement hereunder may be terminated by either
party, without cause after 119 days with 10 days prior notice in writing. This
Agreement can be terminated at any time by Client if Consultant is guilty of
gross negligence, willful misconduct and/or malfeasance, upon 30 days prior
written notice thereof to the other party, provided however, that: a) any
termination of Consultant's engagement hereunder shall not effect the Company's
obligation to pay the full fees provided for and referred to in paragraph 5[b]
hereof at the times and amounts specified therein for a minimum one year (12
months), and; b) any termination of Consultant's engagement hereunder shall not
affect the Company's obligation to reimburse Consultant for expenses incurred in
the performance of its engagement prior to such termination.
[7] Warranties and Representations. Consultant's services are provided on a best
effort basis and are based on Consultant's personal experience and expertise.
There are no guarantees, warranties and representations of any kind that
Consultant's advice or services will produce any specific results for the
benefit of the Client. Actual results may substantially and materially differ
from those suggested by Consultant. Consultant represents and warrants to the
Client that:
__________________
(1) The Company will actually issue 180,000 of the Shares to SGI, 18,000 of the
Shares to Xxxx Xxxxxxxxxx, as a referral fee, and 2,000 shares to Westcap
Securities, Inc.
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(a) Consultant is under no contractual restriction or other restrictions
or obligations that are inconsistent with this Agreement, the performance
of its duties and the covenants hereunder,
(b) Consultant's management is under no physical or mental disability that
would interfere with its keeping and performing all of the agreements,
covenants and conditions to be kept or performed hereunder;
(c) Consultant is familiar with all federal and state securities laws
applicable to the performance of its services as contemplated in this
Agreement, including Sections 17(b) of the Securities Act of 1933, as
amended (the "Securities Act"), Sections 9 and 10(b) of the Exchange Act
and Regulation FD;
(d) Consultant will comply with all applicable federal and state
securities laws in the performance of the services under this Agreement;
and
(e) The Client acknowledges that the Consultant is in the will provide
financial public relations and investor relations services and consulting
advice (of the type contemplated by this Agreement) to others and that
nothing herein contained shall be construed to limit or restrict the
Consultant in providing the aforesaid services to others, or rendering
such advice to others.
[8] Notice. Except as otherwise specifically provided, any notices to be given
hereunder shall be deemed given upon personal delivery, upon the next business
day immediately following the day sent if sent by overnight express carrier, or
upon the third business day following the day if sent by fax and separately by
postage prepaid by certified or registered mail, return receipt requested, to
the following addresses (or such other address as shall be specified in any
notice given):
In case of Consultant: Strategic Growth International, Inc.
Attn: Mr. Xxxxxxx Xxxxxx, Chairman
000 Xxxx 00xx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
Fax : 000 000-0000
In case of Client: Xxxxx World Trade, Ltd.
Attn: Xx. Xxxxx X. Xxxxxxxx, Chairman & CEO
000-00 000xx Xxxxxx
Xxxxxxx, XX 00000
Fax: 000 000-0000
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[9] Hold Harmless; Indemnification. Client and Consultant agree to hold each
other harmless and indemnify each other from and against any liability, loss,
cost, expenses or damages, including attorney's fees, howsoever caused by reason
of any injury or loss sustained by or to any person or property by reason of any
actual or alleged wrongful act, misrepresentation or omission except for gross
negligence, willful misconduct or malfeasance of, or breach of any
representation, warranty or covenant.
[10] Applicable Law. This Agreement shall be construed as whole and in
accordance with its fair meaning. This Agreement shall be interpreted in
accordance with the laws of the State of New York.
[11] Entire Agreement. This Agreement, together with the documents and exhibits
referred to herein, embodies the entire understanding among the parties and
merges all prior discussions or communications among them, and no party shall be
bound by any definitions, conditions or warranties, or representations other
than as expressly stated in this Agreement, or as subsequently set forth in
writing, signed by the duly authorized representatives of all of the parties
hereto. This Agreement, when executed shall supersede and render null and void
any and all preceding oral or written understandings and agreements.
[12] Conflict of Interest. Consultant represents that it is not presently aware
of any conflicts of interest. The parties, however, acknowledge that, in the
course of Consultant's services during the term thereof, Consultant may now or
in the future have certain potential or actual conflicts of interest. In the
event Client and/or Consultant become aware of a potential or actual conflict of
interest, the parties agree to, in good faith, utilize their best efforts to
resolve such conflict of interest, waive such conflict of interest ( which shall
only be effective if contained in a written instrument executed by both parties)
or, in the event the conflict of interest cannot be resolved to the mutual
satisfaction of the parties or waived, then the party complaining of such
conflict of interest or who may be harmed by such conflict of interest shall
have a right to terminate this contract . Nothing in this Agreement shall be
construed to prohibit or interfere with the Company retaining any investment
banker or corporate financial advisor it chooses at its sole discretion at any
time.
[13] Waiver of Breach. The waiver by a party hereto of a breach of any provision
of this Agreement shall not operate or be construed as a waiver of any
subsequent breach of this Agreement.
[14] Assignment. Except as otherwise provided herein, the rights and benefits of
the parties contained in this Agreement shall inure to the benefit of and be
binding upon the successors, assigns, administrators, and personal
representatives of the parties hereto. Consultant's duties under this Agreement
can be delegated to third parties who agree to act in accordance with the terms
and conditions of this Agreement.
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[15] Compliance with Law. During the term, the Consultants shall comply with all
laws and regulations applicable to the Consultants in the conduct of its
business and performance of its obligations hereunder. The Agreement is subject
to the jurisdiction of and laws of the State of New York.
[16] No Oral Change: Waiver. This Agreement may only be changed, modified, or
amended in writing by the mutual consent of the parties hereto. The provisions
of this Agreement may only be waived in or by writing signed by the party
against whom enforcement of any waiver is sought.
[17] Severability. If any provision of this Agreement shall be held or deemed to
be, or shall in fact be, inoperative or unenforceable as applied in any
particular case because it conflicts with any other provision or provisions
hereof, or any other provision or provisions hereof, or any constitution or
statute or rule of public policy, or for any other reason, such circumstances
shall not have the effect of rendering the provision in question inoperative or
unenforceable to any extent whatsoever. The invalidity of any one or more
phrases, sentences, clauses, sections or subsections of this Agreement shall not
affect the remaining portions of this Agreement.
[18] Interpretation. Each of the parties acknowledge that it has been
represented by independent counsel of its choice throughout all negotiations
that have preceded the execution of this Agreement, and that it has executed the
same with consent and upon the advice of said independent counsel. Each party
and its counsel cooperated in the drafting and preparation of this Agreement and
the documents referred to herein, and any and all drafts relating thereto shall
be deemed the work product of the parties and may not be construed against any
party by reason of its preparation. Accordingly, any rule of law, including but
not limited to any decision that would require interpretation of any ambiguities
in this Agreement against the party that drafted it, is of no application and is
hereby expressly waived. The provisions of this Agreement shall be construed as
a whole and in accordance with its fair meaning to affect the intentions of the
parties and this Agreement.
IN WITNESS WHEREOF, the parties hereto have agreed, accepted and executed this
Agreement on March 10, 2005:
XXXXX WORLD TRADE, LTD.
By: /s/Xxxxx X. Xxxxxxxx
------------------------------------
Xxxxx X. Xxxxxxxx, Chairman & CEO
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STRATEGIC GROWTH INTERNATIONAL, INC.
By: /s/Xxxxxxx Xxxxxx
---------------------------
Xxxxxxx Xxxxxx, Chairman
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SCHEDULE A
March 10, 2006
Xxxxx World Trade, Ltd.
000-00 000xx Xxxxxx
Xxxxxxx, XX 00000
Re: Lock-Up Agreement for Shares of the $.001 Par Value Common Stock of
-------------------------------------------------------------------
Xxxxx World Trade, Ltd. Being Issued Pursuant to the
-----------------------------------------------------
Agreement with Strategic Growth International, Inc.
---------------------------------------------------
Gentlemen:
Pursuant to, and in consideration for, the Financial Public & Investor
Relations Agreement dated as of October 3, 2005 (the "Agreement") by and between
Xxxxx World Trade, Ltd. ("Xxxxx"), a Nevada corporation with its principal place
of business at 000-00 000xx Xxxxxx, Xxxxxxx, XX 00000, Jamaica, NY, Strategic
Growth International, Inc. ("SGI"), a Delaware corporation with its principal
place of business at 000 Xxxx 00xx Xxxxxx, XX 00000, XXX hereby agrees that for
a period from this date to February 1, 0000 (xxx "Xxxx-Xx Xxxxxx"), XXX will
not, directly or indirectly, offer, sell, transfer, pledge, assign, hypothecate
or otherwise encumber or dispose of (either pursuant to Rule 144 of the rules
and regulations issued under the Securities Act of 1933, or otherwise) any
interest in the Shares of the $.001 par value common stock of Xxxxx as defined
in Section [5][b] of the Agreement which the undersigned owns of record or
beneficially.
Notwithstanding the provisions of this Lock-Up Agreement, the undersigned
shall have the right to transfer Shares to Xxxx Xxxxxxxxxx, Westcap Securities,
Inc., family trusts and registered charities, provided that those transferred
Shares (the "Transferred Shares") remain subject to restrictions described
herein from further sale, transfer or hypothecation until the expiration of the
Lock-Up Period.
In order to enable effective enforcement the provisions of this Lock-Up
Agreement, the undersigned hereby consents to the placing of appropriate
restrictive legends and stop-transfer instructions with the transfer agent of
Janel's securities with respect to the Shares subject to this Lock-Up Agreement.
This Lock-Up Agreement shall be governed by, construed and enforced in
accordance with the terms and provisions of the Agreement, and the laws of the
State of New York without giving effect to choice of law or conflict of laws
principles.
Strategic Growth International, Inc.
By /s/ Xxxxxxx Xxxxxx
----------------------------
Xxxxxxx X. Xxxxxx, Chairman and
Chief Executive Officer
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51075.doc;1
SCHEDULE B
REGISTRATION RIGHTS PROVISIONS
1. Definitions. The following terms have the following meanings:
(a) "Act" means the Securities Act of 1933, "Exchange Act" means the
Securities Exchange Act of 1934, and the respective rules and regulations
promulgated under the Act and the Exchange Act.
(b) "Commission" means the United States Securities and Exchange
Commission.
(c) "Registrable Securities" means the Shares of Xxxxx World Trade,
Ltd. (the "Company") $.001 par value common stock owned by the "Holder," as set
forth in the Xxxxx subscription agreement of the Holder, to which these
provisions are attached.
(d) "Registration," "register" and like words mean compliance with
all of the laws, rules and regulations (federal, state and local), and
provisions of agreements and corporate documents pertaining to the public
offering of securities, including registration of any public offering of
securities on any form under the Act.
Piggyback Registration. At any time prior to (date to come), the Company
shall advise Holder by written notice at least ten (10) days prior to the filing
of any registration statement under the Act by the Company (other than a
registration statement on Form X-0, Xxxx X-0 or subsequent similar forms), and
will upon the provision of written notice from Holder as described below include
in any such registration statement (the "Initial Registration") such information
as may be required to permit a public offering of the Registrable Securities
desired to be registered by Holder. If Holder desires to have Registrable
Securities included in such registration statement, the Holder must so advise
the Company in writing within ten (10) days after the date of receipt of the
Company's notice of registration, setting forth the amount of Registrable
Securities for which registration is requested; provided, however, that if the
sole underwriter or managing underwriters advise the Company that the inclusion
in the offering of securities proposed to be sold by Holder would adversely
affect the ability of the Company to complete the offering, then the Company
shall have the right to reduce the number of Shares for which Holder is seeking
Registration on a pro rata basis with all other selling shareholders seeking
Registration in any such registration statement. The Company shall use its best
efforts to cause such registration statement to be filed and to become effective
and, for a period of six (6) consecutive months from the date such registration
statement is declared effective by the Commission and to keep current the
prospectus included in such registration statement, either through the filing of
periodic reports under the Exchange Act, or by filing post-effective amendments
to the registration statement, so as to permit the public sale of the Shares.
Prior to executing any sales of the Shares, Holder will confirm with the Company
that the Prospectus included in the Initial Registration is up-to-date and that
such Shares may be lawfully sold.
2. Information to be Furnished by Holder. Holder shall furnish to the
Company in writing all information within its possession or knowledge required
by the applicable rules and regulations of the Commission and by any applicable
state securities or Blue Sky Laws concerning Holder, the proposed method of sale
or other disposition of the shares of Common Stock being sold by Holder in such
offering, and the identity of and compensation to be paid to any proposed
underwriter or underwriters to be employed in connection with such offering.
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3. Costs and Expenses. The Company shall pay all costs and expenses in
connection with the Registration; provided, however, that Holder shall bear the
fees and expenses of their own counsel and accountants and any selling expenses
relating to Registrable Shares registered on behalf of Holder in connection with
such offering, including without limitation, any transfer taxes, underwriting
discounts or commissions.
5. Notices. All notices and other communications must be in writing and
shall be deemed to have been given on the same day when personally delivered or
sent by confirmed facsimile transmission or on the next business day when
delivered by receipted courier service or on the third business day when mailed
with sufficient postage, certified mail, return receipt requested, to the
following addresses: (a) if to the Company, to Xxxxx World Trade, Ltd., 000-00
000xx Xxxxxx, Xxxxxxx, XX 00000, tel. (000) 000-0000, Attention Xxxxx X.
Xxxxxxxx, Executive Vice President; and (b) if to Holder, at the Holder's
address in the subscription agreement, or to such other address as it may be
changed from time to time on the books of the Company by written notice. Copies
of all notices to the Company shall be simultaneously given to Xxxxxxx X. Xxxxx,
Esq., Scheichet & Xxxxx, P.C., 000 Xxxxx Xxxxxx - 00xx Xxxxx, Xxx Xxxx, XX
00000, fax (000) 000-0000, e-mail xxxxxxx@xxxxxxxxxxxxxx.xxx. Each person
receiving notice may from time to time change the address to which notices to it
are to be delivered or mailed hereunder by notice in writing.
7. Governing Law. Registration Rights shall be governed by and construed
and enforced in accordance with the laws of the State of New York without giving
effect to the choice of law or conflict of laws principles. The New York state
and federal courts in New York shall have jurisdiction over any and all disputes
arising out of or relating to the Registration Rights.
- END -
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