AGREEMENT
THIS AGREEMENT ("Agreement"), dated April 3, 2002 and effective as of March
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1, 2002, is between BRIGHTCUBE, INC., a corporation organized under the laws of
the State of Nevada (the "Company"), and INFUSION CAPITAL INVESTMENT
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CORPORATION, a North Carolina corporation ("Infusion"), with its principal
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office at 000 Xxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxx Xxxxxxxx 00000.
WHEREAS, simultaneous with the execution and delivery of this Agreement,
the Company has entered into a consulting agreement (the "Consulting Agreement")
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with Investor Relations Services, Inc. ("IRSI") pursuant to which Consulting
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Agreement IRSI has agreed to provide investor and public relations services to
the Company (the "Services"); and
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WHEREAS, IRSI has requested that Infusion reimburse IRSI, promptly upon
request, for all or a substantial portion of the actual out-of-pocket costs and
expenses which will be incurred by IRSI in performing the Services under the
Consulting Agreement; and
WHEREAS, Infusion is willing to promptly reimburse IRSI, upon request, for
all of the foregoing costs and expenses, up to a maximum of $500,000 in the
aggregate, in consideration for IRSI assigning to Infusion all rights to receive
the Compensation described in Section 5(a) of the Consulting Agreement; and
WHEREAS, the Company is willing to pay such Compensation to Infusion,
subject to its execution and delivery of this Agreement.
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. REIMBURSEMENT FOR COSTS AND EXPENSES.
(a) In consideration for payment of the Compensation described in
Section 3 below, Infusion hereby agrees to promptly pay or reimburse IRSI upon
requests for all actual out-of-pocket costs and expenses incurred by IRSI on
behalf of the Company in connection with the performance of the Services
described in the Consulting Agreement, up to a maximum of $500,000 of such costs
and expenses in the aggregate to be incurred over the one year term of such
Consulting Agreement.
(b) Subject to Infusion's compliance with the terms and conditions
of this Agreement, the Company agrees to assign to Infusion all of the
Compensation otherwise payable by the Company to IRSI, and IRSI hereby agrees to
such assignment of the Compensation.
2. RELATIONSHIP AMONG THE PARTIES.
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Infusion acknowledges that it is not an officer, director or agent 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. The
Company represents that the Infusion does not have, through stock ownership or
otherwise, the power to control the Company, nor to exercise any dominating
influences over its management.
3. COMPENSATION.
The Company agrees to issue to Infusion, or its designee, an aggregate of
Ten Million (10,000,000) shares of common stock of the Company (the "Stock").
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The Stock will not be registered for resale and will be restricted securities
under Rule 144, as promulgated under the Securities Act of 1933, as amended (the
"Act"). Certificates evidencing all of the shares of the Stock shall be issued
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in the name of Infusion, and delivered to Infusion within five business days of
execution and delivery of this Agreement. Upon delivery of the certificates
evidencing the Stock, as aforesaid, the Company shall have no further payment
obligations of any kind to IRSI under the terms of the Consulting Agreement.
4. INVESTMENT REPRESENTATION.
(a). The Company represents and warrants that it has provided
Infusion with access to all publicly available information regarding the
Company, and other available information requested by Infusion, concerning the
Company's condition, financial and otherwise, its management, its business and
its prospects. The Company represents that it has provided Infusion with all
copies of the Company's filings for the prior twelve (12) months, if any, (the
"Disclosure Documents") made under the rules and regulations promulgated under
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the Act, as amended, or the Securities Exchange Act of 1934, as amended.
Infusion acknowledges that the acquisition of the securities to be issued to
Infusion involves a high degree of risk. Infusion represents that it and its
advisors have been afforded the opportunity to discuss the Company with its
management. The Company represents that it has and will continue to provide
Infusion with any information or documentation necessary to verify the accuracy
of the information contained in the Disclosure Documents, and will promptly
notify Infusion upon the filing or any registration statement or other periodic
reporting documents filed pursuant to the Act or the Exchange Act. This
information will include DTC sheets, which shall be provided to Infusion no less
than every two (2) weeks. The Company hereby represents that it does not
currently have any of its securities in registration.
(b) Infusion represents that neither it nor its officers,
directors, or employees is not subject to any disciplinary action by either the
National Association of Securities Dealers or the Securities and Exchange
Commission by virtue of any violations of their rules and regulations and that
to the best of its knowledge neither is its affiliates nor subcontractors
subject to any such disciplinary action.
(c) If required by United States law or regulation, Infusion will
take
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necessary steps to prepare and file any necessary forms to comply with the
transfer of the shares of stock from Company to Infusion, including, if
required, form 13(d).
5. REGISTRATION OF SECURITIES AND LIQUIDATED DAMAGES.
The Company hereby acknowledges that time is of the essence with respect to
removal of the 144 restriction legend from the Shares. Subject to the volume
restrictions of Rule 144 and the availability of current public information
concerning the Company and provided that Infusion complies with the resale
provisions of Rule 144, in the event the legend is not removed from the
certificate(s) evidencing the Stock within thirty (30) days after written demand
made following one year from the issuance date, the Company agrees to issue
either an additional number of shares of common stock equal to ten percent (10%)
of the total number of shares of Stock issued herein for each additional thirty
(30) day delay in removing any Rule 144 legend, or the cash equivalent of such
shares. In the event of a delay of less than a full thirty (30) day period,
Infusion shall be entitled to a pro-rata allocation of additional shares.
Notwithstanding the foregoing, Infusion recognizes that the Company's counsel
will only be able to issue an opinion to the Company's transfer agent to remove
the 144 restriction legend from the Shares if the Company and Infusion shall
then comply with all of the applicable provisions of Rule 144.
6. MISCELLANEOUS PROVISIONS.
(a) Time. Time is of the essence of this Agreement.
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(b) Presumption. This Agreement or any section thereof shall not
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be construed against any party due to the fact that said Agreement or any
section thereof was drafted by said party.
(c) Computation of Time. In computing any period of time pursuant
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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.
(d) Titles and Captions. All article, section and paragraph
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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.
(e) Pronouns and Plurals. All pronouns and any variations thereof
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shall be deemed to refer to the masculine, feminine, neuter, singular or plural
as the identity of the Person or Persons may require.
(f) Further Action. The parties hereto shall execute and deliver
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all
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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.
(g) Good Faith, Cooperation and Due Diligence. The parties hereto
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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.
(h) Savings Clause. If any provision of this Agreement, or the
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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.
(i) Assignment. This Agreement may not be assigned by either
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party hereto without the written consent of the other, but shall be binding upon
the successors of the parties.
(j) Arbitration.
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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.
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.
The situs of the arbitration shall be Los Angeles County, California.
In the event that a dispute results in arbitration, the parties agree that
the prevailing party shall be entitled to reasonable attorneys fees to be fixed
by the arbitrator.
(k) Notices. All notices required or permitted to be given under
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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.
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(l) Governing law. The Agreement shall be construed by and
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enforced in accordance with the laws of the State of North Carolina.
(m) Entire agreement. This Agreement contains the entire
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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.
(n) Waiver. A delay or failure by any party to exercise a right
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under this Agreement, or a partial or single exercise of that right, shall not
constitute a waiver of that or any other right.
(o) Counterparts. This Agreement may be executed in duplicate
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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.
(p) Successors. The provisions of this Agreement shall be binding
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upon all parties, their successors and assigns.
(q) Counsel. The parties expressly acknowledge that each has been
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advised to seek separate counsel for advice in this matter and has been given a
reasonable opportunity to do so.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement to be effective as of the day and year provided herein.
BRIGHTCUBE, INC. INFUSION CAPITAL INVESTMENT CORP.
By: /s/ Xxxx Xxxxxx By: /s/ Xxx Xxxxxxxxxxx
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Xxxx Xxxxxx Xxx Xxxxxxxxxxx, President
Chief Financial Officer
INVESTOR RELATIONS SERVICES, INC.
By: /s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx, President
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