NOBLE HOUSE OF BOSTON, INC.
ADVERTISING AND PROMOTIONAL SERVICES AGREEMENT
This Agreement (the "Agreement") is made on this 24th day of April
2001, between NOBLE HOUSE OF BOSTON, INC., a Florida Corporation ("NHOB")
and., WIZZARD SOFTWARE CORPORATION (WIZD), a Colorado Corporation ("Client").
Whereas, NHOB is in the business of planning, developing and
implementing advertising, marketing and promotional campaigns for corporations
and other business entities ("Advertising and Promotional Services"); and
Whereas, Client wants to engage NHOB to prepare and implement an
advertising and promotional campaign for Client.
Now, therefore, in consideration of the mutual promises contained herein
and other good and valuable consideration, the receipt and sufficiency of
which are acknowledged, the parties, intending to be legally bound, agree as
follows:
1) Advertising and Promotional Services; Term. Subject to Client's compliance
with each of the representations, warranties and covenants and agreements
made by Client in the Agreement, NHOB agrees to provide to Client the
Advertising and Promotional Services identified on Exhibit A to this
Agreement and incorporated herein by reference, for the period commencing
on the later of the date that this Agreement is executed and delivered by
Client or the date that NHOB receives payment of its fees as provided below
(the "Effective Date") and expiring on the 365th day following the
effective date of this Agreement (the "Term").
a) At Noble House of Boston, Inc.'s sole discretion it can extend the
campaign at no charge to WIZD for 4-6 months if it is determined by Noble
House of Boston, Inc. that the market conditions were such during the one
year term of the agreement that Noble House of Boston, Inc. was not able to
perform up to its own reasonable expectations.
2) Obligations and Responsibilities of Client. As of the date hereof and
during the Term of this Agreement, Client agrees as follows.
a) Representation and Warranties.
Client represents and warrants to NHOB that:
i) Organization. Client is a corporation duly organized, validly
existing and in good standing under the laws of the State of its
incorporation and is duly qualified to do business as a foreign
corporation in each jurisdiction in which it owns or leases property
or engages in business.
ii) Formal Action. Client has the corporate power and authority to
execute and deliver this Agreement and to perform each of its
obligations hereunder. The Client has taken all necessary action to
approve the execution and delivery of this Agreement and performance
of all obligations of Client in this Agreement.
iii) Valid and Binding Agreement. Client has duly executed and
delivered this Agreement, which is the valid and binding obligation
of Client, enforceable against it in accordance with its terms.
iv) No Violation. The execution, delivery and performance of this
Agreement by Client does not and will not violate any provisions of
the certificate of incorporation or bylaws of Client or any
agreement to which Client is a party or any applicable law or
regulation or order or decree of any court, arbitrator or
government. Client is not required to request action of, or filing
with, any governmental or public body or authority in connection
with the execution, delivery or performance of this Agreement.
v) Litigation. No action, suit or proceeding is pending against,
threatened or otherwise affecting the Client or any of its
properties before any court, arbitrator or governmental body or
administrative agency, or against any of the directors or officers
of Client (other than routine traffic violations).
vi) Accuracy of Information. The Client has furnished information to
NHOB regarding the business, operations, financial condition
(including financial statements), business plans and biographical
information regarding the Client's directors and officers
(collectively referred to as the "Information Package"). Client
represents and warrants that the Information Package is true,
complete and accurate in all material respects and does not contain
any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under
which they were made, not misleading.
3) Covenants and Agreements.
Client covenants and agrees to the following:
a) Client Certification. Client acknowledges that it is responsible for
the accuracy and completeness of the Information Package and for all
other information furnished to NHOB and for the accuracy and
completeness of the contents of all materials prepared by NHOB for and
on behalf of Client, provided that such latter materials have received
Client's prior written approval. The Client hereby designates the
individuals listed on Exhibit B to this Agreement as the duly authorized
representatives of Client for purposes of certifying to NHOB the
accuracy of all documents, advertisements or other materials prepared by
NHOB for and on behalf of Client. The Client agrees to promptly advise
NHOB in writing of any condition, event, circumstance or act that would
constitute a material adverse change in the business, properties,
financial condition or business prospects of the Client or which would
make any of the information contained in the Information Package or in
any document prepared by NHOB for and on behalf of Client misleading in
any material respect.
b) Client hereby agrees that NHOB and its directors, officers, agents and
employees may rely on the Information Package and on all other
information furnished by Client, and on each and every certification
provided by an authorized representative of Client, until NHOB is
advised in writing by an authorized representative of Client that the
information previously furnished to NHOB is inaccurate or incomplete in
any material respect. Client acknowledges that NHOB shall have no
obligation to provide services hereunder until it has received a written
certificate from an authorized representative of Client as follows: NHOB
shall prepare proofs and/or tapes of the agreed upon materials and
information, as set for dissemination, for the Client's review and
approval and Client shall sign and return such materials marking all
corrections and changes that the Client believes appropriate. Client
acknowledges that NHOB will make oral representations based on the
information furnished hereunder and the Client authorizes such
representations.
i) Books and Records. Client shall maintain true and complete books,
records and accounts in which true and correct entries shall be made
of its transactions in accordance with generally accepted accounting
principals consistently applied ("GAAP").
ii) Financial and Other Information. Client agrees to furnish to NHOB
the following information:
(1) Annual Financial Statements. As soon as practicable, and in
any event within 90 days after the close of the Client's fiscal
year, annual financial statements including a balance sheet, an
income statement, a statement of cash flows, and a statement of
stockholder's equity, and all notes thereto prepared in accordance
with GAAP and audited by an independent certified public
accountant.
(2) Quarterly Financial Statements. As soon as practicable, and
in any event within 45 days after the end of each fiscal quarter,
quarterly financial statements, including a balance sheet, a
quarterly and year-to-date income statement, a statement of cash
flows, and a statement of stockholder's equity, prepared by Client
in accordance with GAAP and certified by the chief financial
officer and chief executive officer of Client as fairly
presenting, subject to normal year-end audit adjustments, the
Client's financial position as of and for the periods indicated.
(3) Noble House of Boston, Inc. Reliance on Client's Full
Disclosure. Client will provide, or cause to be provided, to NHOB
all financial and other information requested by NHOB for
rendering its services pursuant to this Agreement. Client
recognizes and confirms that NHOB will use such information in
performing the services contemplated by this Agreement without
independently verifying such information and that NHOB does not
assume any responsibility for the accuracy or completeness of such
information. The persons executing this Agreement on behalf of
Client certify that there is no fact known to them which
materially adversely affects or may (so far as the Client's senior
management can now reasonably foresee) materially adversely affect
the business, properties, condition (financial or other) or
operations (present or prospective) of the Client which has not
been set forth in written form delivered by Client to NHOB.
(4) The persons executing this Agreement on behalf of Client
agree to keep NHOB promptly informed of any facts hereafter know
to Client which materially adversely affects or may (so far as the
Client's senior management can now reasonably foresee) materially
adversely affect the business, properties, condition (financial or
other) or operations (present or prospective) of Client.
(5) Legal Representation. Client acknowledges and agrees that
it has been and will continue to be, represented by legal counsel
experienced in corporate and securities laws and Client
acknowledges that it has been advised as to the obligations
imposed on it pursuant to such laws and understands that it will
have the obligation and responsibility to see that all such laws
are complied with at all times during the Term of this Agreement.
4) Compensation. In consideration of the Advertising and Promotional Services
to be performed by NHOB hereunder, Client hereby agrees to compensate NHOB
in the manner in the amount specified in Exhibit C which is attached hereto
and incorporated herein by reference thereto. In addition to the
compensation to be paid to NHOB as provided in Exhibit C, Client shall
reimburse NHOB promptly after a written request therefor accompanied by
appropriate documentation, for all pre-approved reasonable out-of-pocket
expenses (including reasonable fees and disbursements of NHOB's counsel, if
any) incurred in connection with providing services hereunder or to the
extent provided in Exhibit C.
5) Indemnity. Client acknowledges that it is responsible for the accuracy of
the Information Package and all other information provided to NHOB and for
the contents of all materials, advertorials and other information prepared
by NHOB for and on behalf of Client which has received Client's prior
written approval as provided herein and Client agrees to indemnity NHOB in
accordance with the Indemnification Agreement set forth in Exhibit D, which
is attached hereto and incorporated herein by reference. NHOB acknowledges
its responsibility for its acts and/or omission with respect to the subject
matter of this Agreement, and NHOB agrees to indemnify Client for its
wrongful acts or omissions in accordance with the said Indemnification
Agreement set forth in Exhibit D.
6) Relationship of the Parties. This Agreement provides for the providing of
marketing, promotional and advertising services by NHOB to Client and the
provisions herein for compliance with financial covenants, delivery of
financial statements, and similar provisions are intended solely for the
benefit of NHOB to provide it with information on which it may rely in
providing services hereunder and nothing contained in the Agreement shall
be construed as permitting or obligating NHOB to act as a financial or
business advisor or consultant to Client, as permitting or obligating NHOB
to participate in the management of client's business, as creating or
imposing any fiduciary obligation on the part of NHOB with respect to
provisions of services hereunder and NHOB shall have no such duty or
obligation to client, as providing or counseling Client as to the
compliance by Client with any federal or state securities or other laws
effecting the services to be provided hereunder, or as creating any joint
venture, agency, or other relationship between the parties other than
explicitly and specifically stated in the Agreement. The Client
acknowledges that it has had the opportunity to obtain the advice of
experienced counsel of its own choosing in connection with the negotiation
and execution of the Agreement, the provision of services hereunder and
with respect to all matters contained herein, including, without
limitation, the provisions of Section 4 hereof.
7) Survival of Certain Provisions. The Client's obligations to pay the fees
and expenses of NHOB pursuant to Section 3 of this Agreement and to comply
with the indemnification provisions pursuant to Section 4 shall remain
operative and in full force and effect regardless of any termination of
this Agreement and shall be binding upon, and shall inure to the benefit
of, NHOB and in the case of the indemnity agreement, the persons, agents,
employees, officers, directors and controlling persons referred to in the
Indemnification Agreement, and their respective successors and assigns and
heirs, and no other person shall acquire or have any right under or by
virtue of this Agreement. All amounts paid or required to be paid under
Sections 3 and 4 of this Agreement shall be full earned on the Effective
Date of this Agreement notwithstanding prior termination of this Agreement.
8) Termination. NHOB shall have the right in its sole and absolute discretion
to terminate its obligations hereunder and to immediately cease providing
Advertising and Promotional Services pursuant to this Agreement if NHOB, in
the exercise of its reasonable judgement, believes that the representations
and warranties made by Client hereunder are inaccurate in any material
respect or if Client breaches any of its covenants and agreements continued
herein or if any federal or state governmental agency or instrumentally
institutes an investigation or suite against Client or pertaining to the
services hereunder. The Client shall have the same right, mutatis
mutandis, if NHOB breaches any of its covenants and agreements continued
herein or if any federal or state governmental agency instrumentally
institutes an investigation or suite against NHOB or pertaining to the
services hereunder.
9) Non-Solicitation Covenant. Client agrees that it will not directly or
indirectly during the term of this Agreement or for three years following
the termination or expiration of this Agreement, either voluntarily or
involuntarily, for any reason whatsoever, recruit or hire or attempt to
recruit or hire any employee of NHOB or of any of its affiliates or
subsidiaries, or otherwise induce any such employees to leave the
employment of NHOB or of any of its affiliates or subsidiaries or to become
an employee of or otherwise be associated with Client or any affiliate or
subsidiary of Client. Client acknowledges that NHOB and its affiliates and
subsidiaries have invested a significant amount of time, energy and
expertise in the training of their employees to be able to provide
Advertising and Promotional Services and Client therefore agrees that this
covenant is reasonable and agrees that the breach of such covenant is very
likely to result in irreparable injury to NHOB which is unlikely to be
adequately compensated by damages. Accordingly, in the event of a breach
or threatened breach by Client of this Section 8, NHOB shall be entitled to
an injunction restraining Client and any affiliate, subsidiary or director
or officer thereof from recruiting, or hiring or attempting to recruit or
hire any employee of NHOB or of any affiliate or subsidiary of NHOB.
Nothing herein shall be construed as prohibiting NHOB from pursuing any
other remedies available to NHOB for such breach or threatened breach,
including recovery of damages from Client. The undertaking herein shall
survive the termination or cancellation of the Agreement for three years
10) Miscellaneous.
a) Governing Law. This Agreement shall be governed by the laws of the
State of Florida applicable to contracts executed and performed in the
Circuit Court, Seminole County, in the State of Florida (without regard
to the principles of conflicts of laws)
b) Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
c) Cumulation of Rights and Remedies. No right or remedy of NHOB under
this Agreement is intended to preclude any other right or remedy and
every right and remedy shall coexist with every other right and remedy
now or hereafter existing, whether by contract, at law, or in equity.
d) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the parties and their successors and assigns.
Client shall not have any right to assign any of its rights or delegate
any of its obligations or responsibilities under this Agreement except
as expressly stated herein.
e) Payment of Fees and Expenses on Enforcing Agreement. In the event of
any dispute between the parties arising out of or related to this
Agreement or the interpretation thereof, at the trial level or appellate
level, the prevailing party shall be entitled to recover from the non-
prevailing party all costs and expenses, including reasonable fees and
disbursements of counsel which may be incurred in connection with such
proceeding, without limitation, including any costs and expenses of
experts, witnesses, depositions and other costs.
f) Notices. Any notice or other communication required or permitted to be
given hereunder shall be in writing, and shall be delivered to the
parties at the addresses set forth below (or to such other addresses as
the parties may specify by due notice to the others). Notices or other
communications shall be effective when received at the recipient's
location (or when delivered to that location if receipt is refused).
Notices or other communications given by facsimile transmission shall be
presumed received at the time indicated in the recipient's automatic
acknowledgement. Notices or other communications given by Federal
Express or other recognized overnight courier service shall be presumed
received on the following business day. Notices or other communications
given by certified mail, return receipt requested, postage prepaid,
shall be presumed received three business days after the date of
mailing.
WIZZARD SOFTWARE CORPORATION (WIZD)
000 Xxxx Xxx
Xxxxxxxxxx. XX 00000
Attn.: Xxxxx Xxxxxxx, CEO
Office: (000) 000-0000 Fax: (000) 000-0000
NOBLE HOUSE OF BOSTON, INC.
000 Xxxxx Xxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, President
Office: (000) 000-0000 Fax: (000) 000-0000
g) Headings. The headings in this Agreement are intended solely for
convenience of reference. They shall be given no effect in the
construction or interpretation of this Agreement.
h) Severability. The invalidity or unenforceability of any provision of
this Agreement shall not impair the validity or enforceability of any
other provision.
In Witness Whereof, the parties have executed this Agreement as of the
date first above written.
Attest: WIZZARD SOFTWARE CORPORATION
By: ______________________ By: ________________________________
Secretary Xxxxx Xxxxxxx, CEO
[Corporate Seal]
Attest: NOBLE HOUSE OF BOSTON, INC.
By: /S/Xxxxxxx X. Xxxxxx By:/s/Xxxxxxx X. Xxxxxx
Secretary Xxxxxxx X. Xxxxxx, President
[Corporate Seal]
EXHIBIT A
Advertising and Promotional Services
The services to provided are as follows:
1. NHOB will contact market makers, money managers, fund managers,
hedge fund managers and retail stock brokers who will review
Client's company. This process will begin immediately upon NHOB
receiving the compensation and expense advancement as set forth in
Exhibit "C" and the Client's current shareholder list and printed
materials. Follow-up with shareholders, brokers, funds and
institutions will be done as well.
2. NHOB will distribute the Information Package to all inquiring
brokers. The Client shall supply the necessary materials for the
Information Package and update it on a continual basis at Client's
cost. If Client requests assistance from NHOB in assembling and/or
creating a typical Information Package, then NHOB will charge Client
for its assistance. NHOB's charges for assisting Client in
assembling and/or creating the Information Package shall be an
expense item. The cost of mailing the Information Package to all
inquiring brokers shall be an expense item. Clients shall be billed
on a monthly basis on expensed items.
3. NHOB will update customized Client "Bullet Sheet," a one-page
investor fact sheet, is to be sent to every broker who shows
interest in the Client's stock.
4. NHOB will provide assistance in review of documentation to be sent
to brokers. If travel is required, the Client will pay
transportation and hotel expenses for NHOB's employees, with prior
authorization from Client. The transportation and hotel expenses
shall be an expense advancement item.
5. NHOB's media arm, will provide Client with a number of channels to
market:
A)NHOB will provide public relations exposure on Client's press
releases to newsletter writers, trade publications and financial
gurus. Client is responsible for the cost of the press releases
with (Business Wire and/or PR News Wire). NHOB shall prepare and
forward all approved releases to the appropriate agency.
6. Performance by Client.
A)Client is required to do a Standard & Poor's listing at the
Client's expense.
B)Client is required to provide NHOB with a list of every state that
Client has blue-sky in on their attorney's letterhead.
C)Client will provide its shareholders and NHOB with audited
financials on a yearly basis and unaudited financials on
quarterly basis.
D)Client will use its reasonable best efforts to register or qualify
any shares of common stock of Client under the securities or
blue sky laws of such jurisdictions as any broker or market
maker may reasonably request and do any and all other acts and
things which may be reasonably necessary or advisable to
enable such broker or market maker to consummate the
disposition in such jurisdictions of shares of common stock of
Client, provided that the Client will not be required to (1)
qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this
Section (2) subject itself to taxation in any such
jurisdiction or (3) consent to general service of process in
any such jurisdiction.
E)Client is required to provide NHOB with Business Plans and Media
Kits, as needed.
F)Client is required to provide NHOB with weekly DTC reports.
G)Client is required to provide NHOB with an updated shareholders
list, shareholders list may not be over thirty (30) days old.
h)Client is required to provide NHOB with all News Releases prior to
release on all news wire services.
The parties hereto by signing this Exhibit in the space provide below signify
their agreement regarding the service to be provided by NHOB under the
Agreement.
WIZZARD SOFTWARE CORPORATION
By:/S/Xxxxx Xxxxxxx
Xxxxx Xxxxxxx, CEO
NOBLE HOUSE OF BOSTON, INC.
By:/S/Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx, President
EXHIBIT B
Client hereby designates the following person or persons to act on its
behalf for the purpose set forth in Section 3.B. (1) of the Agreement.
/S/Xxxxxx X. Xxxxx Xxxxxx X. Xxxxx
DIRECTOR (PLEASE SIGN) DIRECTOR (PLEASE PRINT)
/s/Xxxxx Xxxxxxx Xxxxx Xxxxxxx
PRESIDENT (PLEASE SIGN) PRESIDENT (PLEASE PRINT)
/s/Xxxxx Xxxxxxxx Xxxxx Xxxxxxxx
VICE PRESIDENT (PLEASE SIGN) VICE PRESIDENT (PLEASE PRINT)
EXHIBIT C
COMPENSATION
1. Upon the execution and delivery of the Agreement, Client agrees to
remit to NHOB shares of Clients common stock in symbol (WIZD), Two-
hundred fifty thousand (250,000) shares of unrestricted SB-2 WIZD
stock, which Shares shall be duly and validly issued within one
hundred and fifty (150) days of May 30, 2001. The Shares will be
issued in compliance with the requirements of the Securities Act of
1933 (the "Act) and the General Rules and Regulation promulgated
under the Act and shall be unrestricted, unencumbered and freely
tradable on the stock exchange or other electronic trading system on
which the Shares are listed for trade.
2. Client shall issue as additional compensation to NHOB of one-hundred
thousand (100,000) restricted 144 WIZD Shares within 10 days of
initiation of contract and one-hundred thousand (100,000) registered
warrants within ten (10) days of initiation of contract with a
strike price of $2.00 and expiration date of May 30, 2006. Client
will execute and deliver the Registration Rights Agreement, under
which the Client agrees to register the Shares for sale in
compliance with the Act and to comply with all conditions necessary
or required to enable the Shares to be sold pursuant to the General
Rules and Regulation under the Act.
3. The Shares, if any, to be issued to NHOB shall be approved for
issuance in accordance with the rules and regulations of any stock
exchange or other electronic trading system on which the Shares are
listed for trading and shall be issued in compliance with all
appropriate federal or state governmental rules and regulations.
4. Client acknowledges that the consideration to be paid to NHOB shall
be fully earned on the date that NHOB commences providing services
under the Agreement.
5. Client agrees to pay or reimburse NHOB for all expenses arising out
of or related to the provision of services by NHOB under the
Agreement to the extent provided in the Agreement and/or in Exhibit
A thereto.
The parties hereto by signing this Exhibit in the space provided below signify
their agreement to the compensation provisions contained herein.
WIZZARD SOFTWARE CORPORATION
By:/S/Xxxxx Xxxxxxx
Xxxxx Xxxxxxx, CEO
NOBLE HOUSE OF BOSTON, INC.
By:/s/Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx, President
EXHIBIT D
INDEMNIFICATION
Client agrees to indemnify and hold NHOB harmless against any losses,
claims, damages or liabilities, joint or several, as incurred and occasioned
thereby, to which NHOB may become subject in connection with the services or
matters which are the subject of or arise out of the Agreement; provided,
however, that Client shall not be liable under the foregoing indemnity in
respect of any loss, claim, damage or liability to the extent that a court
having jurisdiction shall have determined by a final judgment that such loss,
claim, damage or liability is a consequence of intentional fraudulent acts,
willful wrongful conduct, or negligent acts or omissions committed by NHOB, in
which event NHOB shall indemnify and hold Client harmless against any losses,
claims, damages or liabilities, joint or several, as incurred and occasioned
thereby. In the event that the foregoing indemnity is unavailable by
operation of law, the Client or NHOB, as the case may be, shall contribute to
amounts paid or payable by the indemnified party in respect of such losses,
claims, damages and liabilities in the proportion that Client's and/or NHOB's
interest, as the case may be, bears to the indemnified party's interest in the
matters contemplated by the Agreement. If, however, the allocation provided
by the immediately preceding sentence is not permitted by applicable law, or
otherwise, the Client and/or NHOB, as the case may be, shall contribute to
such amount paid or payable by the indemnified party in such proportion as is
appropriate to reflect not only such relative interests but also the relative
fault of Client on the one hand and NHOB on the other hand in connection with
the matters as to which such losses, claims, damages or liabilities relate and
other equitable considerations.
Promptly after NHOB 's receipt of notice of the commencement of any
action or of any claim, NHOB will, if a claim in respect thereof is to be made
against Client under this Indemnity Agreement, notify Client of the
commencement thereof. In case any such action or claim is brought against
NHOB, Client will be entitled to participate thereinThe foregoing agreements
shall apply to any modification of the Agreement, shall remain in full force
and effect following the completion or termination of NHOB's engagement under
the Agreement and shall be in addition to any rights that NHOB may have at
common law or otherwise. The agreements in this Indemnification Agreement
shall extend to and inure to the benefit of each person, if any, who may be
deemed to control NHOB, be controlled by NHOB or be under common control with
NHOB and to NHOB 's, and to each such other person's respective affiliates,
directors, officers, employees and agents. This Indemnification Agreement
shall be binding on any successor Client.
Client and NHOB represents that the Indemnification Agreement contained
herein is the legal, valid, binding and enforceable obligation of Client
and/or NHOB, as the case may be, enforceable against Client and/or NHOB as the
case may be according to its terms.
This Indemnification Agreement shall be governed by, and construed in
accordance with, the laws of the State of Florida without regard to principles
of conflicts of law, and the forum for resolution of legal and interpretative
issues shall be the Federal District courts in the State of Florida.
The parties hereto by signing this Exhibit in the space provided below
signify their agreement to the indemnification provisions contained herein.
WIZZARD SOFTWARE CORP.
By:/S/Xxxxx Xxxxxxx
NOBLE HOUSE OF BOSTON, INC.
By:/s/Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx, President
