EXHIBIT 10.48
CONSULTING AGREEMENT
THIS AGREEMENT dated as of January 5, 2002 is among COMMERCIAL
CONSOLIDATORS CORP., a corporation organized under laws of the Province of
Alberta, Canada (hereinafter referred to as the "Company"), having its principal
executive offices located at 0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxx X0X 0X0; and
INVESTOR RELATIONS SERVICES, INC., a Florida corporation (hereinafter referred
to as the "Consultant"), having its principal executive offices located at 000
Xxxxxxx Xxxxxx, Xxx Xxxxxx Xxxxx, XX 00000.
WHEREAS, the Consultant is in the business of assisting public
companies in financial advisory, strategic business planning, and investor and
public relations services designed to make the investing public knowledgeable
about the benefits of stock ownership in the Company; and
WHEREAS, the Consultant may, during the period of time covered by this
Agreement, present to the Company one or more plans of public and investor
relations to utilize other business entities to achieve the Company's goals of
making the investing public knowledgeable about the benefits of stock ownership
in the Company; and
WHEREAS, the Company's common shares are listed on the Canadian Venture
Exchange ("CDNX") under the symbol "CCZ" and on the Frankfurt exchange under the
symbol "CJ9" and under the symbol "ZCC".
WHEREAS, the Company recognizes that the Consultant is not in the
business of stock brokerage, investment advice, activities which require
registration under either the Securities Act of 1933 (hereinafter "the Act") or
the Exchange Act, underwriting, banking, is not an insurance Company, nor does
it offer services to the Company which may require regulation under federal or
state securities laws; and
WHEREAS, the Company acknowledges that, notwithstanding the execution
of this Agreement, the Consultant has been advising the Company and otherwise
providing certain services to the Company prior to the date hereof (the "Prior
Services") which Prior Services it is acknowledged have value to the Company;
and
WHEREAS, the parties agree, after having a complete understanding of
the services desired and the services to be provided, that the Company desires
to retain Consultant to provide such assistance through its services for the
Company, and the Consultant is willing to provide such services to the Company;
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NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the receipt and sufficiency of which is hereby acknowledged,
the parties agree as follows:
1. Duties and Involvement.
The Company hereby engages Consultant to provide one or more plans, and
for coordination in executing the agreed-upon plan, for using various investor
and public relations services as agreed by both parties. The plan description of
the services as described below is attached hereto as Exhibit A and included
herein as if fully set out. Such services (hereinafter referred to as the
"Services") may include, without limitation, the following: (a) consulting with
the Company's management concerning marketing surveys, (b) investor
accreditation, (c) availability to expand investor base, (d) investor support,
(e) strategic business planning, (f) broker relations, (g) conducting due
diligence meetings, (h) attendance at conventions and trade shows, (i)
assistance in the preparation and dissemination of press releases and
stockholder communications, (j) consulting on mergers with companies, (k) review
and assistance in updating a business plan, (l) review and advise on the capital
structure for the Company, (m) assist in the development of an acquisition
profile and structure, (n) recommend financing alternatives and sources, (o)
production of a corporate profile and fact sheets, (p) personnel consulting
services, (q) financial analyst and newsletter campaigns, (r) conferences,
seminars and national tour, including, but not by way of limitation, due
diligence meetings, investor conferences and institutional conferences, (s)
preparation of printed media advertising design, and newsletter production, (t)
broker solicitation campaigns, (u) electronic public relations campaigns, (v)
direct mail campaigns, and (w) placement of articles about the Company in
investment publications and press releases.
2. Relationship Among the Parties.
(a) Consultant acknowledges that it is not an agent or
employee of the Company, it is not, and will not, be responsible for any
management decisions on behalf of the Company, and may not commit the Company to
any action or bind the Company to any agreement, understanding or commitment of
any kind. The Company represents that the Consultant does not have, through
stock ownership or otherwise, the power neither to control the Company, nor to
exercise any influences over its management.
(b) Consultant understands and acknowledges that this
Agreement shall not create or imply any agency relationship among the parties,
and Consultant will not commit the Company in any manner except when a
commitment has been specifically authorized in writing by the Company. The
Company and the Consultant agree that the relationship among the parties shall,
at all times, be that of independent contractor.
(c) In connection with providing its Services hereunder, the
Consultant intends to utilize the services of various employees and agents,
including, without limitation, the following: Xxxxxxx Xxxxxxx, Xxxxxx X. Xxxxx,
Xxxxxx Xxxxxxx; Xxxxxx Xxxxx; Xxxx Xxxxxxxx; Xxxxxxxx Xxxx; Xxxxxxxx Xxxxxx;
Xxxxxxx Xxxxx; and Xxx Xxxxxxxxxx.
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3. Effective Date, Term and Termination.
This Agreement shall be effective on January 1, 2002 (the "Effective
Date") and will continue until June 30, 2002. This Agreement can only be
modified if mutually agreeable and in writing.
4. Option to Renew and Extend.
The Company may renew this Agreement on the same terms by providing
written notice to Consultant at any time prior to the expiration hereof.
5. Compensation and Payment of Consultant's Expenses.
(a) In full consideration of all Services to be provided by
the Consultant hereunder and in full consideration of the Prior Services, the
Company agrees to issue to the Consultant or its designee an aggregate of Three
Hundred Thousand (300,000) shares of its Common Stock (the "Stock"). An
aggregate of One Hundred and Fifty Thousand (150,000) shares of Stock shall be
issued to the Consultant or its designee concurrent with the execution of this
Agreement and an additional One Hundred and Fifty Thousand (150,000) shares of
Stock shall be issued on or about June 30, 2002. If for any reason, other than a
breach by the Consultant of its obligation to actually incur the minimum amount
of Consultant's Expenses described in Section 5(c) below in connection with the
performance of its Services hereunder, the Company shall, after written request
by Consultant, fail or refuse to deliver the shares of the Stock, when due, in
addition to and not in lieu of any equitable remedies of specific performance
which the Consultant or its designee may have, the Company shall be liable to
pay the Consultant the sum of $10,000 per day in damages for each day following
January 5, 2002 and June 30, 2002, until certificates evidencing the shares of
such Stock are delivered to Consultant or its designee.
(b) The Stock shall not be registered under the Securities Act
and shall contain a Rule 144 restriction. The Consultant has agreed to assign
all of its rights to the Stock to Summit Trading Limited, an independent
international business corporation ("Summit"), and all certificates evidencing
the shares of Stock shall be registered in the name of Summit as record owner
thereof. The record owner shall deliver an appropriate representation
restriction letter to the Company upon the execution of this Agreement.
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(c) The Company agrees to pay for all actual out-of-pocket
costs and expenses incurred by employees of the Company that work with the
Consultant and its representatives, including lodging, meals, and travel as
necessary. All expenses of the Consultant in performing its Services hereunder,
including expenses of employees and agents of the Consultant and other expenses
described in Addendum A annexed hereto for the fulfillment of the Services
described in this Agreement shall be borne solely by the Consultant or by third
parties engaged by it in connection with the performance of the financial and
public relations services provided for herein (collectively, the "Consultant's
Expenses"). In such connection, the Consultant represents and warrants that the
aggregate amount of Consultant's Expenses to be incurred by it over the one year
term of this Agreement shall be not less than U.S. $400,000; of which not less
than U.S. $100,000 shall be incurred during the first six months of this
Agreement.
6. Services Not Exclusive.
Consultant shall devote such of its time and effort necessary to the
discharge of its duties hereunder. The Company acknowledges that Consultant is
engaged in other business activities, and that it will continue such activities
during the term of this Agreement. Consultant shall not be restricted from
engaging in other business activities during the term of this Agreement.
7. Confidentiality.
Consultant acknowledges that it may have access to confidential
information regarding the Company and its business. Consultant agrees that it
will not, during or subsequent to the term of this Agreement, divulge, furnish
or make accessible to any person (other than with the written permission of the
Company) any knowledge or information or plans of the Company with respect to
the Company or its business, including, but not by way of limitation, the
products of the Company, whether in the concept or development stage, or being
marketed by the Company on the effective date of this Agreement or during the
term hereof.
8. Covenant Not to Compete.
During the term of this Agreement, Consultant warrants, represents and
agrees that it will not directly participate in the information developed for
and by the Company, and will not compete directly with the Company in the
Company's primary industry or related fields.
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9. Indemnification.
Company agrees to indemnify and hold harmless the Consultant
and its respective agents and employees, against any losses, claims, damages or
liabilities, joint or several, to which either party, or any such other person,
may become subject, insofar as such losses, claims, damages or liabilities (or
actions, suits or proceedings in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact contained
in the registration statement, any preliminary prospectus, the prospectus, or
any amendment or supplement thereto; or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not misleading; and
will reimburse the Consultant, or any such other person, for any legal or other
expenses reasonably incurred by the Consultant, or any such other person, in
connection with investigation or defending any such loss, claim, damage,
liability, or action, suit or proceeding.
10. Registration.
If the Company proposes to register any equity securities
under the Securities Act for sale to the public for cash, whether for its own
account or for the account of other security holders, or both, on each such
occasion the Company will give written notice to Consultant, no less than
fifteen (15) business days prior to the anticipated filing date, of its
intention to do so. Upon the written request of Consultant, received by the
Company no later than the tenth (10th) business day after receipt by the
Consultant of the notice sent by the Company, to register, on the terms and
conditions as the securities otherwise being sold pursuant to such registration,
any of its Stock (which request shall state the intended method of disposition
thereof), the Company will cause the Stock as to which registration shall have
been so requested to be included in the securities to be covered by the
Registration Statement proposed to be filed by the Company, on the same terms
and conditions as any similar securities included therein, all to the extent
requisite to permit the sale or other disposition by the Consultant (in
accordance with its written request) of such Stock so registered; provided,
however, that the Company may, at any time prior to the effectiveness of any
such Registration Statement, in its sole discretion and with the consent of the
Consultant, abandon the proposed offering in which the Consultant had requested
to participate.
11. Miscellaneous Provisions
Section a Time. Time is of the essence of this Agreement.
Section b Presumption. This Agreement or any section thereof shall not
be construed against any party due to the fact that said Agreement or any
section thereof was drafted by said party.
Section c Computation of Time. In computing any period of time pursuant
to this Agreement, the day of the act, event or default from which the
designated period of time begins to run shall be included, unless it is a
Saturday, Sunday or a legal holiday, in which event the period shall begin to
run on the next day which is not a Saturday, Sunday or a legal holiday, in which
event the period shall run until the end of the next day thereafter which is not
a Saturday, Sunday or legal holiday.
Section d Titles and Captions. All article, section and paragraph titles
or captions contained in this Agreement are for convenience only and shall not
be deemed part of the context nor affect the interpretation of this Agreement.
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Section e Pronouns and Plurals. All pronouns and any variations thereof
shall be deemed to refer to the masculine, feminine, neuter, singular or plural
as the identity of the Person or Persons may require.
Section f Further Action. The parties hereto shall execute and deliver
all documents, provide all information and take or forbear from all such action
as may be necessary or appropriate to achieve the purposes of this Agreement.
Section g Good Faith, Cooperation and Due Diligence. The parties hereto
covenant, warrant and represent to each other good faith, complete cooperation,
due diligence and honesty in fact in the performance of all obligations of the
parties pursuant to this Agreement. All promises and covenants are mutual and
dependent.
Section h Savings Clause. If any provision of this Agreement, or the
application of such provision to any person or circumstance, shall be held
invalid, the remainder of this Agreement, or the application of such provision
to persons or circumstances other than those as to which it is held invalid,
shall not be affected thereby.
Section i Assignment. This Agreement may not be assigned by either party
hereto without the written consent of the other, but shall be binding upon the
successors of the parties.
Section j Arbitration.
(i) If a dispute arises out of or relates to this Agreement,
or the breach thereof, and if said dispute cannot be settled through direct
discussion, the parties agree to first endeavor to settle the dispute in an
amicable manner by mediation under the Commercial Mediation Rules of the
American Arbitration Association before resorting to arbitration. Thereafter,
any unresolved controversy or claim arising out of or relating to this Agreement
or a breach thereof shall be settled by arbitration in accordance with the rules
of the American Arbitration Association, and judgment upon the award rendered by
the Arbitrator may be entered in any court having jurisdiction thereof.
(ii) Any provisional remedy, which would be available from a
court of law, shall be available to the parties to this Agreement from the
Arbitrator pending arbitration.
(iii) The situs of the arbitration shall be Volusia County,
Florida.
(iv) In the event that a dispute results in arbitration, the
parties agree that the prevailing party shall be entitled to reasonable
attorney's fees to be fixed by the arbitrator.
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Section k Notices. All notices required or permitted to be given under
this Agreement shall be given in writing and shall be delivered, either
personally or by express delivery service, to the party to be notified. Notice
to each party shall be deemed to have been duly given upon delivery, personally
or by courier (such as Federal Express or similar express delivery service),
addressed to the attention of the officer at the address set forth heretofore,
or to such other officer or addresses as either party may designate, upon at
least ten (10) days' written notice, to the other party.
Section l Governing law. The Agreement shall be construed by and
enforced in accordance with the laws of the State of Florida.
Section m Entire agreement. This Agreement contains the entire
understanding and agreement among the parties. There are no other agreements,
conditions or representations, oral or written, express or implied, with regard
thereto. This Agreement may be amended only in writing signed by all parties.
Section n Waiver. A delay or failure by any party to exercise a right
under this Agreement, or a partial or single exercise of that right, shall not
constitute a waiver of that or any other right.
Section o Counterparts. This Agreement may be executed in duplicate
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same Agreement. In the event that the
document is signed by one party and faxed to another the parties agree that a
faxed signature shall be binding upon the parties to this agreement as though
the signature was an original.
Section p Successors. The provisions of this Agreement shall be binding
upon all parties, their successors and assigns.
Section q Counsel. The parties expressly acknowledge that each has been
advised to seek separate counsel for advice in this matter and has been given a
reasonable opportunity to do so.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement to be effective as of the 5th day of January, 2002.
COMPANY: CONSULTANT:
COMMERCIAL CONSOLIDATORS CORP. INVESTOR RELATIONS
SERVICES, INC.
By: By:
---------------------- ----------------------
Xxxxxxx Xxxxxxxxxx, Xxxxxxx X. Xxxxxxx,
Chairman President & CEO
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ADDENDUM A
CORPORATE PROFILE AND FACT SHEET
A two-page, two color broker fact sheet, and a four-page, full color
Company profile will be created, each highlighting the Company and the benefits
of owning the Company's stock. These pieces are included in broker/dealer
information packages for dissemination to prospective investors, and may also be
targeted to stock analysts and newsletter editors. Consultant's services include
creative writing, artwork, layout and design and printing. Materials updated
four times per year, as applicable.
PERSONAL CONSULTANT SERVICES
A Personal Consultant will supervise and actively assist in every facet
of the Company's overall marketing campaign. In addition to coordinating all
above-listed services, the Personal Consultant will maintain daily contact with
investor relations office staff, Company officers and active brokers; he will be
available for consultation 24 hours per day, every day, via cellular telephone,
to address urgent needs as well as general strategic planning. The Personal
Consultant will travel extensively to meet qualified brokers one-on-one, and
will arrange specially scheduled conference calls with audiences of brokers,
analysts and money managers. The Personal Consultant will personally arrange
invitation-only due diligence broker meetings, and will directly supervise all
logistics and follow-up. The Consultant will pay the cost of the Personal
Consultant.
BROKER SOLICITATION CAMPAIGN
Specialized professional financing public relations services will be
provided through an ongoing telemarketing campaign soliciting new broker
dealers, to generate interest in the Company and its stock. This campaign will
include direct personal telephone follow-up with retail brokers in active
contact with Company executives and investor relation's staff. Supervised
in-house personnel will be assigned specifically to guide Company interactions
with brokers and field representatives.
PRESS RELEASES
Company press releases will be written and disseminated to news wire
services. Press releases will also be disseminated to the at-large broker
community by fax and mail, plus telephone and fax follow-up with 500-1,000
active brokers. Press releases may be reproduced in national financial magazines
such as Investor's Business Daily, Xxxxxx'x.
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PRINT MEDIA ADVERTISING
An advertisement, targeted to both brokers and investors, will be
created and inserted in a major financial and investment magazine or newspaper
at the Consultants cost. Publications which target and deliver large numbers of
active brokers, qualified investors and other niche groups interested
specifically in the Company's product or industry category will be emphasized.
Consultant's services include creative writing, artwork, layout and design, and
coordination of magazine/newspaper inserts.
FINANCIAL ANALYST and NEWSLETTER CAMPAIGN
The Financial Analyst and Newsletter Campaign will be intertwined with
our Broker Solicitation Campaign, which provides an essential link to increasing
investor awareness for the Company. Each Company is presented to our carefully
developed network of financial analysts and newsletter publications that
specialize in identifying emerging growth companies and presenting buy
recommendations to their loyal following of investors. Utilization of direct
mail pieces, e-mail, broadcast faxing and phone contacts will ensure effective
and prompt coverage for our clientele. In order to best expose the Company, this
campaign may include personal meetings with editors, analysts and writers for a
number of publications and research houses nationwide.
CONFERENCES, SEMINARS AND NATIONAL TOURS
Due Diligence Meetings: Opportunities for Company exposure before
broker/dealer audiences will be provided in New York, Boston, Chicago, Atlanta,
Orlando, Boca Raton, Denver, San Francisco, southern California and other major
metro areas. Consultant's services include overall meeting coordination and
implementation; room rental, catering (hot and cold hor d'oeuvres and snacks),
alcoholic and non-alcoholic beverages, broker/dealer invitations (printing, mail
coordination, postage and telephone contact), transportation (coach air fare and
hotel accommodations, as applicable), additional broker meetings and telephone
follow-up.
Investor Conferences: Opportunities for Company exposure before large
audiences of qualified, wealthy investors will be provided in various locations
across North America. These conferences provide executives of participating
companies with unique forums for sharing the spotlight with top financial and
investment experts while making personal contact with wealthy investors and
presenting the benefits of the companies. The most popular package for
conference participants includes an exhibit booth, private workshop, broker
presentation and distribution of collateral materials. Among the most popular
and established conferences are those produced by Xxxxxxxxx'x Investment
Conferences, Financial Fest, and Discovery Expo.
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Institutional Conferences: Opportunities for Company exposure before
representatives of major financial institutions may be arranged for any of the
following conferences: North American Corporate Forum, Xxxxxxxxxxx Waldorf
Conference Series, Boston Stockholders Club, Hartford Stockholders Club,
Equities Conferences and Investment Research Institute. The conferences
sponsored by the North American Corporate Forum and Xxxxxxxxxxx Waldorf
Conference Series are three-day events held in New York, designed to allow
participating companies to meet and consult with Investment analysts and
portfolio managers representing all primary investment centers in the United
States and Canada.
ELECTRONIC MEDIA
A coordinated mix of financial and investment radio and television
programming, covering major markets across the United States and designed to
serve as Company marketing and lead generation conduits, will be arranged. The
Company may be featured on talk shows, special interview segments and
commercials. Program duplicates may be distributed to select brokers and
investors to heighten Company awareness.
DIRECT MAIL CAMPAIGN
A four-page, full color direct mail lead generation piece, highlighting
the Company and the benefits of owning the Company's stock, will be created.
This lead generator will be mailed to 100,000 selected, qualified investors, in
one large mailing or in smaller increments. Printed on heavy gloss stock, the
piece includes a postage-paid business reply card, plus an identifying telephone
number enabling investors to respond immediately. Additionally, market makers
names and phone numbers may be listed directly on the mailing piece for all-in
lead generation. The piece includes a postage-paid business reply card, plus an
identifying telephone number enabling investors to respond immediately.
Consultant's services include creative writing, artwork, layout and design,
printing, list rentals, mail handling, postage and business reply card
coordination.
INVESTMENT PUBLICATIONS
Bull & Bear is a tabloid-style newspaper distributed six to nine times
per year to approximately 60,000 active investors in the United States and
Canada.
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