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Exhibit 10.85
MEDIA RELATIONS AND CONSULTING AGREEMENT
This agreement ("Agreement") is made and entered into this 23rd day of June,
1998 between American Artists Film Corporation, a Missouri corporation (the
"Company"), Xxxxxxxxxxxxx.xxx, Inc., a Florida Corporation ("Consultant"),
Australian Advisors Corp., a _______________ corporation and Icon
International, Inc., a Connecticut corporation (collectively "Third Parties").
In consideration of and for the mutual promises and covenants contained herein,
and for the good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. PURPOSE.
The Company hereby retains the Consultant on a non-exclusive basis during the
term specified to render media relations and consulting advice to the Company,
as the Company may reasonably request, upon the terms and conditions as set
forth herein.
2. TERM AND COMPENSATION.
This Agreement shall be effective for a period of six months commencing upon
the date first written above (the "Engagement Period"); provided, however, that
this Agreement may be terminated by either the Company or Consultant upon ten
days (10) written notice. The Third Parties shall pay the Consultant a
non-refundable fee upon execution of this Agreement consisting of 223,225
shares of registered Class A common stock of the Company. The Third Parties
shall pay these shares as follows: Australian Advisors Corp. - 150,000 shares
and Icon International, Inc. - 73,225 shares.
The term of this agreement may be extended upon mutual written consent of all
parties for an additional six-month period ("Extended Engagement Period"),
commencing on the date of expiration of the initial Engagement Period. The
Company and/or Third Parties shall, upon mutual written consent of the parties,
pay the Consultant a non-refundable fee consisting of shares of registered
Class A common stock. The number of shares shall be determined by the parties
prior to the end of the Engagement Period.
3. DUTIES OF THE CONSULTANT.
During the term of this Agreement, the Consultant will provide the Company with
such regular and customary non-exclusive media relations and consulting
services as is reasonably requested by the Company, provided that the
Consultant shall not be required to undertake duties not reasonably within the
scope of the media relations and consulting services contemplated by this
Agreement. In performance of these duties, the Consultant shall provide the
Company with the benefits of its best judgment and efforts. It is understood
and acknowledged by the parties that the value of the Consultant's services is
not measurable in any quantitative manner, and that the Consultant shall not be
obligated to spend any specific amount of time doing so. The Consultant's
duties may, at the direction of the Company include, but not necessarily be
limited to on a non-exclusive basis, the following:
A. Develop World Wide Web site ("Web Site") for the Company, its
divisions and its subsidiaries, including First Light Entertainment
Corporation, Diversity Filmworks, Inc., First Draft Films, American
Artists Films, Video Communications Network, LLC, and Diversity
Entertainment Television/Atlanta, LLC.
B. Maintain and update Web Site, with information supplied by the
Company, for the term of this Agreement. Such information shall be
limited to information that is considered "public information" by the
Company, in its sole discretion. Upon expiration of the term of this
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Agreement, the Company shall assume sole ownership of the Web Site and
domain name and responsibility for its maintenance.
C. Prepare independent analysis of the Company based upon available
"public information" and meetings with the Company's senior
management.
D. Feature independent analysis ("Company Profile") on the
Consultant's investor service web site located at Xxxxxxxxxxxxx.xxx on
the World Wide Web. Such Company Profile shall be featured at
Xxxxxxxxxxxxx.xxx for the month of July 1998 and shall provide a link
to the Company homepage on the World Wide Web.
E. Provide updates to initial Company Profile, on a monthly basis,
based upon new "public information", additional meetings with the
Company's senior management and additional independent analysis by the
Consultant.
F. Provide exposure in connection with the dissemination of
corporation information regarding the Company to the investment
community at large.
G. Provide other business consulting services including, introductions
to capital resources, market makers and broker/dealer firms.
4. COMPANY PROFILE.
The Company Profile shall include both factual information based upon available
"public information" and subjective information based upon independent analysis
performed by the Consultant.
A. Factual information shall be provided by the Company and shall be
subject to prior approval by a member of senior management. Factual
information may include information regarding the Company, including
corporate structure, management's experience, business segments,
historical market prices and other "public information".
B. Subjective information shall be provided by the Consultant and will
be based upon an independent analysis performed by the Consultant. All
such subjective information included in the Company Profile shall be
clearly marked as such, along with an indication that such subjective
information has not been reviewed by the Company and that the Company
takes no responsibility for its content.
5. CONSULTANT'S LIABILITY.
In the absence of gross negligence or willful misconduct on the part of the
Consultant or the Consultant's breach of this Agreement, the Consultant shall
not be liable to the Company or to any officer, director, employee, stockholder
or creditor of the Company, for any act or omission in the course of or in
connection with the rendering or providing of services hereunder. Except in
those cases where the gross negligence or willful misconduct of the Consultant
or the breach by the Consultant of this Agreement is alleged and proven, the
Company agrees to defend, indemnify, and hold the Consultant harmless from and
against any and all reasonable costs, expenses and liability (including
reasonable attorney's fees paid in the defense of the Consultant) which may in
any way result from services rendered by the Consultant pursuant to or in any
connection with this Agreement. This indemnification expressly excludes any and
all damages as a result of any actions or statements, on behalf of the Company,
made by the Consultant without the prior approval or authorization of the
Company.
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6. COMPANY'S LIABILITY.
The Consultant agrees to defend, indemnify, and hold the Company harmless from
and against any and all reasonable costs, expenses and liability (including
reasonable attorney's fees paid in defense of the Company) which may in any way
result pursuant to its gross negligence or willful misconduct or in any
connection with any actions or statements, on behalf of the Company, without
the prior approval or authorization of the Company or which are otherwise in
violation of applicable law.
7. THIRD PARTY INDEMNIFICATION.
The Company agrees to defend, indemnify, and hold the Third Parties harmless
from and against any and all reasonable costs, expenses and liability
(including reasonable attorney's fees paid in defense of the Third Parties)
which may in any way result pursuant to or in any connection with this
Agreement, except for such Third Parties' gross negligence or willful
misconduct.
8. EXPENSES.
The Company, upon receipt of appropriate supporting documentation, shall
reimburse the Consultant for any and all reasonable and actual out-of-pocket
expenses incurred in connection with the services provided to the Company,
subject in each case to prior written approval of the Company. The Consultant
will be solely responsible for its expenses related to its initial due
diligence meetings with the Company.
9. REPRESENTATIONS
Consultant makes the following representations to the parties to this
Agreement:
(a) The Consultant shall not make any statements about the Company, in
any capacity, without the prior approval of the Company, unless such
statement is clearly marked as an opinion of the Consultant, which the
Company has not reviewed and for which the Company bears no
responsibility.
(b) Consultant shall clearly and adequately disclose the nature and
amount of compensation received under this Agreement (including the
existence of this Agreement) on its Web Site and on all other
disclosures to the public.
(c) Consultant shall clearly and adequately disclose on its Web site
and on all other disclosures to the public that it "may from time to
time have a long or short position in or be a purchaser or seller of
the securities of the Company."
(d) Consultant shall not offer or make payment of any consideration to
brokers, dealers, or others for purposes of inducing the purchase or
recommendation for the purchase of the Company's securities.
(e) Consultant is not currently the subject of an investigation or
inquiry by the Securities and Exchange Commission, the NASD, or any
state securities commission.
(f) Consultant's activities and operations fully comply with all
applicable state and federal securities laws and regulations.
(g) Consultant is either properly registered as, or exempt from
registration, as a broker-dealer or an investment advisor.
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(h) Consultant understands that, as a result of its services, it may
come to possess material non-public information about the Company, and
that it has implemented internal control procedures designed to
reasonably insure that it, and none of its employees, agents,
consultants or affiliates, trade in the securities of client companies
while in possession of material non-public information.
The Company makes the following representations to the parties to this
Agreement:
(a) The Company is not currently the subject of an investigation or
inquiry by the Securities and Exchange Commission, the NASD, or any
state securities commission.
(b) The Company is in good standing in its state of incorporation,
Missouri.
(c) The Company is a "reporting company" under the Securities Act of
1934 and has timely filed all of its required reports.
(d) The Company and its senior management are not aware of any
materially adverse events not previously disclosed in the Company's
annual and quarterly reports with the Securities and Exchange
Commission.
10. SEVERABILITY.
Every provision of this Agreement is intended to be severable. If any term or
provision hereof is deemed unlawful or invalid for any reason whatsoever, such
unlawfulness or invalidity shall not affect the validity of this Agreement.
11. MISCELLANEOUS.
(a) Any notice or other communication between parties hereto
shall be sufficiently given if sent by certified or
registered mail, postage prepaid, or faxed and confirmed at
the following locations:
COMPANY:
American Artists Film Corporation
0000 Xxxxxx Xxxxxx, XX
Xxxxxxx, Xxxxxxx 00000
(000) 000-0000
Attn Xxxxxx X. Xxxxx
CONSULTANT:
Xxxxxxxxxxxxx.xxx, Inc.
000 Xxxxxxx Xxx Xxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
(000) 000-0000
Attn: Xxxxxx Xxxx
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THIRD PARTIES:
AUSTRALIAN ADVISORS CORP.
Bay & Xxxxxxx St. 2nd Fl.
P.O. Box N-1000
Nassau, Bahamas
ICON INTERNATIONAL, INC.
Two Xxxxxxxx Xxxxx, 0xx Xxxxx
000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
(000)000-0000
Attn: Xxxxx Xxxxxxxx
Such notice or other communication shall be deemed to be given on the date of
receipt.
(b) If the Consultant shall cease to do business, the provisions
hereof relating to duties of the Consultant and compensation by the
Company as it applies to the Consultant shall thereupon cease to be in
effect, except for the registered Class A common stock paid by the
Third Parties to Consultant hereunder as of the date hereof.
(c) This Agreement embodies the entire agreement and understanding
between the Company, Consultant and Third Parties and supersedes any
and all negotiations, prior discussions and preliminary and prior
agreements and understandings related to the primary subject matter
hereof.
(d) This Agreement has been duly authorized, executed and delivered by
and on behalf of the Company, Consultant and Third Parties.
(e) This Agreement shall be construed and interpreted in accordance
with the laws of the State of Georgia, without giving effect to
conflicts of laws.
(f) There is no relationship, partnership, agency, employment,
franchise or joint venture between the parties. The parties have no
authority to bind the other or incur any obligations on their behalf.
(g) This Agreement and the rights hereunder may not be assigned by the
parties (except by operation of law or merger) and shall be binding
upon and inure to the benefit of the parties and their respective
successors, assigns and legal representatives.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date hereof.
AMERICAN ARTISTS FILM CORPORATION
By: /s/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx, CEO/Chairman
XXXXXXXXXXXXX.XXX, INC.
By: /s/ XXXXXX XXXX
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Xxxxxx Xxxx, President
AUSTRALIAN ADVISORS CORP.
By:
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ICON INTERNATIONAL, INC.
/s/ XXXXX XXXXXXXX
By: ------------------------------------------
Xxxxx Xxxxxxxx, President
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