Exhibit 10.29
AGREEMENT
THIS AGREEMENT (the "Agreement") is entered into as of this 1st day of
April 2007, by and between Emerging Markets Consulting, LLC, a Florida limited
liability company (herein referred to as "EMC") and Intraop Medical Corporation,
a Nevada corporation (herein referred to as "the Company").
RECITALS
A. Whereas, the Company routinely provides information about its business to
various parties to further its business and opportunities ("the Company
Information");
B. Whereas, the Company requires assistance with the design, development, and
dissemination of the Company Information;
C. Whereas, EMC has experience in assisting entities similar to the Company in
developing and disseminating the Company Information; and
D. Whereas, the Company desires to engage EMC to assist in the development and
dissemination of the Company Information and EMC desires to accept the
engagement upon the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises contained herein,
the parties agree as follows:
1. Appointment and Engagement. The Company hereby appoints and engages EMC
as and EMC hereby accepts such appointment and engagement, subject to the terms
and conditions set forth in this Agreement.
2. Services to be provided by EMC. EMC shall provide the services described
on Exhibit A attached hereto and incorporated herein by reference (the
"Description of Services"). EMC and the Company shall update the Description of
Services on a periodic basis, as necessary. EMC shall perform such services in a
professional and timely manner as described in the Description of Services.
3. Term of Agreement. This Agreement shall become effective upon execution
hereof and remain in effect for a period of six months thereafter. This
Agreement shall automatically be renewed for one additional six (6) month term
("the Renewal Term") unless either the Company or EMC delivers written notice to
the other party not less than ten (10) days prior to the expiration of the
current term that it intends to terminate the Agreement at the end of such term.
Notwithstanding the foregoing, the Company may terminate this Agreement in its
entirety on the three (3) month anniversary of the date of this Agreement if the
Company, in its reasonable discretion, is not satisfied with the performance of
EMC under this Agreement by delivering written notice of such termination to EMC
not less than five (5) days prior to the end of such three (3) month term.
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4. Compensation. The Company hereby agrees to pay EMC the following
compensation ("the fee") during the term of this Agreement
(a) Ten thousand dollars ($10,000) per month payable on the first day
of each month in advance of each respective month for which services are to be
rendered during the six month term of this agreement; and if this agreement is
renewed, ten thousand dollars ($10,000) per month payable on the first day of
each month in advance of each respective month for which services are to be
rendered for each month for the Renewal Term.
(b) Two hundred thousand (200,000) restricted shares of the Company's
common stock (the "Shares") as follows: (i) 100,000 shares shall be delivered to
EMC upon the execution of this Agreement; and (ii) one hundred thousand
(100,000) shares shall be delivered to EMC upon the first day of the Renewal
Term;
(c) 100,000 cashless common stock purchase warrants (the "Warrants").
The Warrants shall vest upon execution hereof, have an exercise price of $0.40
per share and be exercisable from the date of execution hereof until the
expiration of five years. The form of Warrant is attached hereto as Exhibit B.
(d) Upon the first day of the Renewal Term of this agreement, EMC
shall receive 100,000 cashless common stock purchase warrants (the "Warrants")
which shall vest immediately, have an exercise price of $1.00 per share and be
exercisable by EMC from the date of execution hereof until the expiration of
five years.
(e) Upon the execution of this agreement, all amounts due and unpaid
under the prior agreement between EMC and the Company dated April 1, 2006 must
be paid in full.
The Shares, the Warrants and the shares of Common Stock issuable upon
exercise of the Warrants are collectively referred to herein as "the
Securities."
(f) Upon delivery of any portion of the fee paid either in cash or
securities to EMC, that portion of the fee shall be deemed earned and
non-refundable and is paid to EMC for the purpose of assuring EMC's availability
to perform the services set forth on Exhibit A hereto.
5. Securities Matters. EMC hereby represents, warrants and agrees as
follows:
(a) Purchase Entirely for Own Account. The Securities will be acquired
for investment for EMC's own account, not as a nominee or agent, and not with a
view to the resale or distribution of any part thereof, and that EMC has no
present intention of selling, granting any participation in, or otherwise
distributing the Securities.
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(b) Reliance on Representations. EMC understands that the Securities
are not registered under the Securities Act of 1933, as amended (the "1933 Act")
on the grounds that the sale provided for in this Agreement and the issuance of
Securities hereunder is exempt from registration under the Act pursuant to
Section 4(2) thereof and Rule 506 of Regulation D promulgated thereunder, and
that the Company's reliance on such exemption is predicated on EMC's
representations set forth herein.
(c) Disclosure of Information. EMC believes it has received all the
information it considers necessary or appropriate for deciding whether to
purchase the Securities. EMC further represents that it has had an opportunity
to ask questions and receive answers from the Company regarding the terms and
conditions of the offering of Securities and the business, properties, prospects
and financial condition of the Company.
(d) Investment Experience. EMC is a sophisticated investor and
acknowledges that it is able to fend for itself, himself or herself, can bear
the economic risk of its investment, and has such knowledge and experience in
financial or business matters that it is capable of evaluating the merits and
risks of the investment in the Securities. EMC has not been organized for the
purpose of acquiring the Securities.
(e) Accredited Investor. EMC is an "accredited investor" within the
meaning of Securities and Exchange Commission ("SEC") Rule 501 of Regulation D,
as presently in effect.
(f) Restricted Securities. EMC understands that the Securities it is
purchasing are characterized as "restricted securities" under the federal
securities laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration under
the 1933 Act, only in certain limited circumstances. In this connection, EMC
represents that it is familiar with SEC Rule 144, as presently in effect, and
understands the resale limitations imposed thereby and by the 1933 Act.
(g) Further Limitations on Disposition. For a period of two years from
the date hereof, without in any way limiting the representations set forth
above, EMC further agrees not to make any disposition of all or any portion of
the Securities unless and until:
(i) There is then in effect a registration statement under the
1933 Act covering such proposed disposition and such disposition is made in
accordance with such registration statement; or
(ii) EMC shall have notified the Company of its proposed
disposition in reliance upon Rule 144, and (ii) if reasonably requested by the
Company, EMC shall have furnished the Company with an opinion of counsel,
reasonably satisfactory to the Company, that such disposition will not require
registration of such shares under the 1933 Act. It is agreed that the Company
will not require opinions of counsel from EMC for transactions made pursuant to
Rule 144, except in unusual circumstances and in such instance, the cost of such
opinion shall be borne by the Company.
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(iii) Notwithstanding the provisions of Subsections (i) and (ii)
above, no such registration statement or opinion of counsel shall be necessary
for a transfer by EMC that is a partnership to a partner or affiliated
partnership or fund, of such partnership or a retired partner of such
partnership who retires after the date hereof, or to the estate of any such
partner or retired partner or the transfer by gift, will or intestate succession
of any partner to his or her spouse or to the siblings, lineal descendants or
ancestors of such partner or his or her spouse, if the transferee agrees in
writing to be subject to the terms hereof to the same extent as if he or she
were an original purchaser hereunder.
(h) Legends. It is understood that the certificates evidencing the
Securities may bear a legend in substantially the following form:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES
UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED."
(i) Rule 144 and Resale. Upon EMC notifying the Company and providing,
at its expense, an opinion of counsel that the Securities are eligible for
resale under Rule 144 promulgated under the 1933 Act (including any Rule adopted
in substitution or replacement thereof), the Company will allow such sale or
transfer and not interfere in any way with such sale or transfer. If any
certificate representing the Securities is presented to the Company's transfer
agent for registration or transfer in connection with any sales theretofore made
in compliance with the securities laws, whether because the Securities are
subject to an effective registration statement under the 1933 Act or are
eligible for resale under Rule 144 provided such certificate is duly endorsed
for transfer by the appropriate person or accompanied by a separate stock power
duly executed by the appropriate person and guaranteed by an eligible guarantor
institution (banks, stockbrokers, savings and loan associations and credit
unions with membership in an approved signature guarantee Medallion program),
pursuant to SEC Rule 17Ad15. in each case, the Company will promptly instruct
its transfer agent to allow such transfer and to issue one or more new
certificates representing such Securities to the transferee. All costs of such
transfer shall be borne by the Company including the costs of any legal opinion.
The Company shall fully comply with any and all federal or state securities
laws, rules and regulations governing the issuance of any such Securities or the
resale by EMC.
6. Reports Under Securities Exchange Act of 1934. With a view to making
available to EMC the benefits of Rule 144 promulgated under the 1933 Act and any
other rule or regulation of the SEC that may at any time permit EMC to sell
securities of the Company to the public without registration, the Company agrees
to:
(a) use its best efforts to make and keep public information
available, as those terms are understood and defined in Rule 144;
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(b) use its best efforts to file with the SEC in a timely manner all
reports and other documents required of the Company under the 1933 Act and the
Securities Exchange Act of 1934, as amended (the "1934 Act"); and
(c) furnish to EMC, so long as EMC owns any Securities, forthwith upon
request: (i) a written statement by the Company that it has complied with the
reporting requirements of Rule 144, the 1933 Act and the 1934 Act; (ii) a copy
of the most recent annual or quarterly report of the Company and such other
reports and documents so filed by the Company; and (iii) such other information
as may be reasonably requested in order to permit EMC to avail itself of any
rule or regulation of the SEC or any state securities authority which permits
the selling of any such securities without registration.
7. Company Information.
(a) For purposes of this Agreement, the Company Information shall be
deemed to include all information involving the Company provided to or
disseminated in any fashion by EMC or the Company or which is in the public
domain, including but not limited to information used in electronic media, web
casts, information provided verbally or in writing, information provided to
persons or entities in EMC's email address database, data and information
provided to Wall Street Capital Funding, information contained in press releases
concerning the Company, and information disseminated about the Company at any
seminar or trade show. EMC acknowledges and agrees that the Company shall have
final approval with respect to the dissemination of the Company Information
including, without limitation, the nature and format of the Company Information
distributed, the means of distribution and the parties to whom such Company
Information is distributed.
(b) The Company shall provide EMC, on a regular and timely basis, with
all approved data and information about the Company, its management, its
products and/or services, and its operations, as reasonably requested by EMC for
performance of its services under this Agreement. The Company shall be
responsible for advising EMC of any facts that would affect the accuracy of any
prior data and information previously supplied to EMC.
(c) The Company shall promptly provide EMC with full and complete
copies of all: (a) Form 8-K, 10-QSB and 10-KSB filings with the SEC; (b) all
stockholder reports and communications and press releases; (c) data and
information supplied to any analyst, broker-dealer, market maker, or other
member of the financial community; and (d) product/service brochures and sales
materials.
(d) EMC's services and any print or advertorial materials developed by
EMC will only be used for training purposes of EMC's employees and/or for
educational purposes or in connection with the Company's products and/or
services and will not be used in the offer or sale of the Company's securities
or in connection with any type of promotion or the Company's securities.
(e) The Company will notify EMC contemporaneously if any information
or data being supplied to EMC has not been generally released or promulgated.
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8. Duties and Representations of Company
a. No Pending Material Litigation or Proceedings. There are no actions,
suits or proceedings pending or, to the best of the Company's knowledge,
threatened against or affecting the Company at law or in equity or before or by
any federal, state, municipal or other governmental department, commission,
court, board, bureau, agency or instrumentality, domestic or foreign, or
affecting any of the officers or directors or principal stockholders of the
Company in connection with the business, operations or affairs of the Company,
which might result in any adverse change in the business of the Company, or
which might prevent the Company from performing the services contemplated by
this Agreement.
b. Compliance with Law and Government Regulations. The Company is in
compliance, and during the term of this Agreement will be in compliance, with
all applicable statutes, regulations, decrees, orders, restrictions, guidelines
and standards, whether mandatory or voluntary, imposed by the United States of
America, any state, county, municipality or agency of any thereof, and any
foreign country or government to which the Company is subject. Without limiting
the generality of the foregoing, the services contemplated by this Agreement do
not and will not: (a) involve effecting transactions in any security, or
inducing, or attempting to induce the purchase or sale of any security which
would require the Company or its officers or employees to register under the
1934 Act; (b) activities which would require the Company or its agents to
register under the Investment Advisors Act of 1940, as amended; or (c)
activities which would under state regulation relating to broker-dealers or
investment advisors require registration or licensing.
c. Certain Business Practices. No officer, director, shareholder, employee,
agent or other representative of the Company, or any person acting on behalf of
the Company, has or will directly or indirectly, given or agreed to give or give
any illegal, unethical or improper gift or similar benefit to any broker,
dealer, governmental employee or other person who is or may be in a position to
help or hinder the Company or influence the price of a security.
d. The Company shall act diligently and promptly in providing materials to
EMC and shall promptly inform EMC of any requested changes, misprints, errors or
inaccuracies in any materials provided to or prepared by EMC. Prior to
dissemination of any Company Information, the Company will review and verify all
information contained therein is true and accurate in all material respects. The
Company acknowledges that EMC is relying exclusively upon the information it
receives from the Company and the Company acknowledges that it is responsible
for the truthfulness, completeness and reliability of the information provided
to the Company.
9. Activities of EMC. EMC's activities pursuant to this Agreement or as
contemplated by this Agreement do not constitute and shall not constitute acting
as a securities broker or dealer or finder. Further, EMC shall not receive any
compensation of any form for introducing or locating a potential investor or
investor or members of the financial community to the Company.
10. Compliance with 1933 Act Section 17(b). The Company will ensure that
publishers of any publications containing the Company Information will comply
with Section 17(b) of the 1933 Act regarding any publication, notice, circular,
advertisement, newspaper, article, letter, investment service, or communication
describing the Company or its securities which is disseminated, released,
circulated, or published by EMC or any other party by use of any means or
instruments of transportation or communication in interstate commerce or by the
use of the mails.
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11. Where Services shall be performed. EMC's services shall be performed at
EMC's main office location or other such designated location as EMC deems the
most advantageous for the services to be performed.
12. EMC as an Independent Contractor, Third Parties and Conflicts. EMC is
an independent contractor, and not an employee of the Company. EMC shall be
responsible for all out-of-pocket costs it incurs in connection with the
performance of its services under this Agreement. EMC has no authority to bind
the Company or any affiliate of the Company in any manner including any legal
action, contract, agreement, or purchase, and such action cannot be construed to
be made in good faith. EMC is not entitled to any medical coverage, life
insurance, savings plans, health insurance, or any and all other benefits
afforded Company employees. EMC shall be solely responsible for any Federal,
State or local taxes. EMC may use subcontractors and third parties to provide
the services set forth herein at its discretion, with the prior written approval
of the Company. The Company hereby acknowledges that EMC does, and shall,
represent and service other and multiple clients in the same manner as it does
the Company. Additionally, the Company hereby acknowledges that EMC may
represent companies which compete with the Company and that this Agreement is
non-exclusive with regard to EMC's services.
13. Termination of Agreement. This Agreement may be terminated prior to the
expiration of the term set forth in Section 10 herein as follows:
(a) Upon the bankruptcy or liquidation of the other party; whether
voluntary or involuntary;
(b) Upon the other party taking the benefit of any insolvency law;
(c) Upon the other party having or applying for a receiver appointed
for either party: or
(d) In the event the other party is unable to perform or is in breach
of any material term of this Agreement. In such instances, any
fees paid to EMC shall be non-refundable.
14. Returning Company Documents. EMC agrees that, upon termination of this
Agreement, EMC shall deliver to the Company (and will not keep in EMC's
possession or deliver to anyone else) any and all records, data, notes, reports,
proposals, lists, correspondence, other documents or property, or reproductions
of any of the aforementioned items belonging to the Company, its successors or
assigns.
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15. Representations of EMC. EMC makes no representation to the Company that
any Company Information will result in any enhancement or benefit to the
Company.
16. Agreement not to Solicit EMC Employees. The Company acknowledges that
EMC has expended considerable time, effort and expense in training its
respective employees, advisors, independent contractors, subcontractors and EMC
in methods of operation, and that the foregoing will acquire confidential
knowledge and information as to accounts, customers, business patrons,
databases, as well as confidential knowledge and information concerning the
methods, forms, contracts and negotiations of EMC. As such, the Company is
prohibited during the term of this Agreement and for a period of one (1) year
after the termination of this Agreement from soliciting any employee of EMC as a
potential employee or consultant with the Company without the prior written
consent of EMC, which shall not be unreasonably withheld.
17. Miscellaneous.
(a) Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and
delivered to the other party. This Agreement, once executed by a party, may be
delivered to the other parties hereto by facsimile transmission of a copy of
this Agreement bearing the signature of the party so delivering this Agreement.
In the event any signature is delivered by facsimile transmission, the party
using such means of delivery shall cause the manually executed Execution Page(s)
hereof to be physically delivered to the other party within five (5) days of the
execution hereof, provided that the failure to so deliver any manually executed
Execution Page shall not affect the validity or enforceability of this
Agreement.
(b) Headings. The headings of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of, this
Agreement.
(c) Severability. If any provision of this Agreement shall be invalid
or unenforceable in any jurisdiction, such invalidity or unenforceability shall
not affect the validity or enforceability of the remainder of this Agreement or
the validity or enforceability of this Agreement in any other jurisdiction.
(d) Entire Agreement; Amendments. This Agreement and the instruments
referenced herein contain the entire understanding between EMC and the Company
with respect to the matters covered herein and therein and, except as
specifically set forth herein or therein, neither the Company nor EMC makes any
representation, warranty, covenant or undertaking with respect to such matters.
No provision of this Agreement may be waived other than by an instrument in
writing signed by the party to be charged with enforcement and no provision of
this Agreement may be amended other than by an instrument in writing signed by
the Company and EMC.
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(e) Notices. Any notices required or permitted to be given under the
terms of this Agreement shall be sent by certified or registered mail (return
receipt requested) or delivered personally, by responsible overnight carrier or
by confirmed facsimile, and shall be effective five (5) days after being placed
in the mail, if mailed, or upon receipt or refusal of receipt, if delivered
personally or by responsible overnight carrier or confirmed facsimile, in each
case addressed to a party. The addresses for such communications shall be:
If to the Company:
Name: Xx. Xxxxxx X. Goer
Intraop Medical Corporation
000 Xxx Xxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
If to EMC:
Emerging Markets Consulting, LLC
000 Xxxxx Xxxxx Xxx, #X
Xxxxxxx, Xxxxxxx 00000 XXX
Attn: Xxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
(f) Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties and their successors and assigns.
(g) Third Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and their respective permitted successors and
assigns, and is not for the benefit of, nor may any provision hereof be enforced
by, any other person.
(h) Further Assurances. The Company and EMC shall do and perform, or
cause to be done and performed, all such further acts and things, and shall
execute and deliver all such other agreements, certificates, instruments and
documents, as the other party may reasonably request in order to carry out the
intent and accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
(i) Law and Arbitration. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida applicable to
contracts executed and performed in such State, without giving effect to
conflict of law principles. All controversies, claims and matters of difference
arising between the parties under this Agreement shall be submitted to binding
arbitration in Orange County, Florida under the Commercial Arbitration Rules of
the American Arbitration Association ("the AAA") from time to time in force (to
the extent not in conflict with the provisions set forth herein). This Agreement
to arbitrate shall be specifically enforceable under applicable law in any court
of competent jurisdiction. Notice of the demand for arbitration shall be filed
in writing with the other parties to this Agreement and with the AAA. Once the
arbitral tribunal has been constituted in full, a hearing shall be held and an
award rendered as soon as practicable. The demand for arbitration shall be made
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within a reasonable time after the claim, dispute or other matter in question
has arisen, and the parties are not making progress toward a resolution. In no
event shall it be made after the date when institution of legal or equitable
proceedings based on such claim, dispute or other matter would be barred by the
applicable contractual or other statutes of limitations. The parties shall have
reasonable discovery rights as determined by the arbitration. The award rendered
by the arbitrators shall be final and judgment may be entered in accordance with
applicable law and in any court having jurisdiction thereof. The decision of the
arbitrators shall be rendered in writing and shall state the manner in which the
fees and expenses of the arbitrators shall be borne.
(j) Waivers. No delay on the part of any party in exercising any
right, power, or privilege hereunder shall operate as a waiver thereof. Nor
shall any waiver on the part of any party of any such right, power or privilege,
nor any single or partial exercise of any such right, power or privilege,
preclude any further exercise thereof or the exercise of any other such right,
power or privilege. The rights and remedies of any party based upon, arising out
of or otherwise in respect of any inaccuracy in or breach by any other party of
any representation, warranty, covenant or Agreement contained in this Agreement
shall in no way be limited by the fact that the act, omission, occurrence or
other state of facts upon which any claim of any such inaccuracy or breach is
based may also be the subject matter of any other representation, warranty,
covenant or Agreement contained in this Agreement (or in any other Agreement
between the parties) as to which there is no inaccuracy or breach.
(k) Variations in Pronouns. Wherever the context shall so require, all
words herein in the male gender shall be deemed to include the female or neuter
gender and vice versa, all singular words shall include the plural, and all
plural words shall include the singular. All pronouns and any variations thereof
refer to the masculine, feminine or neuter, singular or plural, as the context
may require.
(l) Presumption Against Scrivener. Each party waives the presumption
that this Agreement is presumed to be in favor of the party which did not
prepare it, in case of a dispute as to interpretation.
(m) Attorney's Fees. In the event either party is in default of the
terms or conditions of this Agreement and legal action is initiated or suit be
entered as a result of such default, the prevailing party shall be entitled to
recover all costs incurred as a result of such default including all costs,
reasonable attorney fees, expenses and court costs through trial, appeal and to
final disposition.
(n) Authority. Each of EMC and the Company has the full legal right
and power and all authority and approval required to enter into, execute and
deliver this Agreement and to perform fully the obligations hereunder including
all requisite manager, member or director approvals, as applicable. This
Agreement has been duly executed and delivered and is the valid and binding
obligation of EMC and the Company enforceable in accordance with its terms,
except as may be limited by bankruptcy, moratorium, insolvency, or other similar
laws generally affecting the enforcement of creditors' rights. Each of EMC and
the Company represents that except with respect to existing Company Information
and properly licensed materials, the performance, distribution, or use of
anticipated materials will not violate the rights of any third parties. The
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execution and delivery of this Agreement and the other agreements contemplated
hereunder, and the consummation of the transactions contemplated hereby and
thereby, and the performance of this Agreement by EMC and the Company, in
accordance with their respective terms and conditions, will not: (i) require the
approval or consent of any foreign, federal, state, county, local, or other
governmental or regulatory body or the approval or consent of any other person;
(ii) conflict with or result in any breach or violation of any of the terms and
conditions of, or constitute (or with notice or lapse of time or both would
constitute) a default under any order, judgment, or decree applicable to EMC or
the Company, as applicable, or any instrument, contract, or other agreement to
which EMC or the Company is a party or by or to which EMC or the Company is
bound or subject; or (iii) result in the creation of any lien or other
encumbrance on the assets or properties of EMC or the Company.
(o) Failure to Perform. In the event EMC fails to perform its work or
services hereunder for any reason, its entire liability to the Company shall not
exceed the actual damage to the Company as a result of such non-performance. In
no event shall EMC be liable to the Company or any other party for any indirect,
special or consequential damages.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have
executed this Agreement as of the date set forth below:
EMC:
Emerging Markets Consulting, LLC
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Executive Officer
Date: April 9, 2007
COMPANY:
Intraop Medical Corporation
By: /s/ Xxxxxx X. Goer
------------------
Name: Xx. Xxxxxx X. Goer
Title: Chief Executive Officer
Date: April 9, 2007
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EXHIBIT A
Description of Services
Services provided by EMC to the Company may include the following, as requested
by the Company:
(a) Arranging for and providing electronic media and web cast services
to enable the Company to conduct conference calls between it and the public on a
monthly basis starting no later than three weeks after signing this Agreement.
(b) Drafting and/or editing and/or designing and/or assembling the
Company Information (as defined in Section 7), including but not limited to
information used in electronic media, web casts, information provided verbally
or in writing, information provided to persons or entities in EMC's email
address database, data and information provided to Wall Street Capital Funding,
information contained in press releases concerning the Company, and information
disseminated about the Company at any seminar or trade show. The Company and EMC
shall review and mutually agree on the specific services to be provided under
this paragraph (b).
(c) Make calls to and attend meetings with registered brokers selected
by EMC, with the prior written consent of the Company. The initial call to the
registered brokers will provide a brief explanation of the Company. The phone
call will be followed promptly by a fax or email to the registered brokers in a
bullet sheet format that provides more detail for the registered broker to
review. The initial call to the registered brokers will be followed up by a
number of follow up calls to the registered brokers over time, not less than 1-5
follow-up calls per month, which will discuss Company developments reflected in
news releases and SEC filings. EMC will make a minimum of 200 and maximum of 450
contacts a week to registered brokers during the term of this Agreement and will
provide the Company with adequate documentation to verify the number of contacts
and identity of brokers contacted.
(d) Dissemination of one Wall Street News Alerts by Wall Street
Capital Funding no later than April 15th.
(e) Dissemination of a Company profile approved by the Company to
EMC's existing email address database no later than 2 business days after
signing this Agreement and distribute updates to such profile on a quarterly
basis thereafter.
(f) Edit up to 20 press releases per quarter, as provided by the
Company.
(g) Dissemination of the Company Information Package at trade shows
that will be attended by EMC. Provide the Company with a list of trade shows EMC
plans on attending in the six months following the signing of this agreement.
(h) Provide the Company with a monthly report on or before the 5th
business day of each month summarizing EMC's services performed under this
Agreement for the preceding month and its planned services for the current
month. Such report will be in form and substance satisfactory to the Company and
EMC.
EXHIBIT B
Form of Warrant
(see attached)
