Exhibit 10.10
AGREEMENT
THIS AGREEMENT ("Agreement"), dated May 13, 2002, is between ZENASCENT,
INC., a corporation organized under the laws of the State of Delaware whose
address is 0 Xxxxxxx Xxxxxxx, Xxxxxxxxxxx, Xxx Xxxx 00000 (the "Company"), and
SUMMIT TRADING LIMITED, with its principal office at Charlotte House, Charlotte
Street, Nassau, Bahamas ("Summit").
WHEREAS, simultaneous with the execution and delivery of this Agreement,
the Company has entered into a consulting agreement (the "Consulting Agreement")
with Investor Relations Services, Inc. ("IRSI") pursuant to which Consulting
Agreement IRSI has agreed to provide certain investor and public relations
services to the Company (the "Services"); and
WHEREAS, IRSI has requested that Summit 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, Summit is willing to promptly reimburse IRSI, upon request, for
all of the foregoing costs and expenses, up to a maximum of $600,000 in the
aggregate, in consideration for IRSI assigning to Summit 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 Summit,
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, Summit 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 $600,000 of such costs
and expenses in the aggregate to be incurred over the term of such Consulting
Agreement.
(b) Subject to Summit's compliance with the terms and conditions of
this Agreement, the Company agrees to issue to Summit all of the Compensation
otherwise payable
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by the Company to IRSI, and IRSI hereby agrees to such issuance of the
Compensation.
2. RELATIONSHIP AMONG THE PARTIES.
Summit 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 Summit 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 Summit, or its designee, an aggregate of
2,631,580 unregistered and restricted shares of common stock, $.001 par value
per share, of the Company, or shares of preferred stock of the Company which are
convertible into such number of shares of common stock (the "Stock"). The
Consultant acknowledges that the Company may not currently have sufficient
shares of common stock authorized and unissued to allow the issuance of such
number of shares of Common Stock or, if applicable, the conversion of such
preferred stock. The Company agrees to use its reasonable commercial efforts to
amend its structural documents to all for such issuance or conversion.
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 in the name of Summit, and delivered to Summit 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.
Summit agrees that it will not, directly or indirectly, pledge,
hypothecate, encumber, sell or transfer in any fashion 1,315,790 of the shares
of the Stock prior to August 1, 2003.
4. INVESTMENT REPRESENTATION.
(a) The Company represents and warrants that it has provided Summit
with access to all publicly available information regarding the Company and
other available information requested by Summit concerning the Company's
condition, financial and otherwise, its management, its business and its
prospects. The Company represents that it has provided Summit 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 the Act, as
amended, or the Securities Exchange Act of 1934, as amended. Summit acknowledges
that the
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acquisition of the securities to be issued to Summit involves a high degree of
risk. Summit 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 Summit with any information or
documentation necessary to verify the accuracy of the information contained in
the Disclosure Documents, and will promptly notify Summit upon the filing or any
registration statement or other periodic reporting documents filed pursuant to
the Act or the Exchange Act. The Company hereby represents that it does not
currently have any of its securities in registration.
(b) Summit represents that neither it nor its officers, directors,
or employees are 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 are subject to any
such disciplinary action.
(c) If required by United States law or regulation, Summit will take
necessary steps to prepare and file any necessary forms to comply with the
transfer of the shares of stock from Company to Summit, 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 Summit 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 (i) one year from the issuance date with respect to 1,315,790 of
the shares of the Stock and (ii) after August 1, 2003 with respect to 1,315,790
of the shares of the Stock, 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 with respect to which the failure to remove the legend arises
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, Summit shall be entitled to a pro-rata allocation of
additional shares. Notwithstanding the foregoing, Summit 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 Summit shall then comply with all of the applicable provisions of
Rule 144 and a failure by Summit to provide the appropriate information and
documents reasonably requested by the Company's counsel shall relieve the
Company of its obligation to issue such additional shares or make such
additional payment, as the case may be.
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6. MISCELLANEOUS PROVISIONS.
(a) Time. Time is of the essence of this Agreement.
(b) Presumption. This Agreement or any section thereof shall not be
construed against any party due to the fact that said Agreement or any section
thereof was drafted by said party.
(c) Computation of Time. In computing any period of time pursuant to
this Agreement, the day of the act, event or default from which the designated
period of time begins to run shall be included, unless it is a Saturday, Sunday
or a legal holiday, in which event the period shall begin to run on the next day
which is not a Saturday, Sunday or a legal holiday, in which event the period
shall run until the end of the next day thereafter which is not a Saturday,
Sunday or legal holiday.
(d) Titles and Captions. All article, section and paragraph titles
or captions contained in this Agreement are for convenience only and shall not
be deemed part of the context nor affect the interpretation of this Agreement.
(e) Pronouns and Plurals. All pronouns and any variations thereof
shall be deemed to refer to the masculine, feminine, neuter, singular or plural
as the identity of the Person or Persons may require.
(f) Further Action. The parties hereto shall execute and deliver all
documents, provide all information and take or forbear from all such action as
may be necessary or appropriate to achieve the purposes of this Agreement.
(g) Good Faith, Cooperation and Due Diligence. The parties hereto
covenant, warrant and represent to each other good faith, complete cooperation,
due diligence and honesty in fact in the performance of all obligations of the
parties pursuant to this Agreement. All promises and covenants are mutual and
dependent.
(h) Savings Clause. If any provision of this Agreement, or the
application of such provision to any person or circumstance, shall be held
invalid, the remainder of this Agreement, or the application of such provision
to persons or circumstances other than those as to which it is held invalid,
shall not be affected thereby.
(i) Assignment. This Agreement may not be assigned by either party
hereto without the written consent of the other, but shall be binding upon the
successors of the parties.
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(j) Arbitration.
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 New York, New York.
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
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.
(l) Governing law. The Agreement shall be construed by and
enforced in accordance with the laws of the State of New York.
(m) Entire agreement. This Agreement contains the entire
understanding and agreement among the parties. There are no other agreements,
conditions or representations, oral or written, express or implied, with regard
thereto. This Agreement may be amended only in writing signed by all parties.
(n) Waiver. A delay or failure by any party to exercise a right
under this Agreement, or a partial or single exercise of that right, shall not
constitute a waiver of that or any other right.
(o) Counterparts. This Agreement may be executed in duplicate
counterparts,
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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 upon all parties, their successors and assigns.
(q) Counsel. The parties expressly acknowledge that each has been
advised to seek separate counsel for advice in this matter and has been given a
reasonable opportunity to do so.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement to be effective as of the day and year provided herein.
ZENASCENT, INC. SUMMIT TRADING LIMITED
By: /s/ Xxx XxXxxxxxx By: /s/ Xxxxxxx Xxxxxxx
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Xxx XxXxxxxxx Xxxxxxx Xxxxxxx, Attorney-in-Fact
Executive Vice President
INVESTOR RELATIONS SERVICES, INC.
By: /s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx, President
