EXHIBIT 10.9
AGREEMENT FOR INVESTOR RELATIONS SERVICES
THIS AGREEMENT FOR INVESTOR RELATIONS SERVICES ("Agreement") is made and entered
in duplicate effective this 15th day of October 2001, ("Effective Date") by and
among Westin Communications Inc., a British Columbia corporation ("Consultant"),
and Blade Internet Ventures Inc., a corporation ("Client").
RECITALS
A. Client desires to retain the services of Consultant to provide
Client certain investor relations and related services, on the terms and subject
to the conditions specified in this Agreement.
B. Consultant desires to furnish to Client certain investor
relations and related services, on the terms and subject to the conditions
specified in this Agreement.
C. Client is in the process of obtaining funding from investors
and anticipates a first closing on approximately $2,000,000 ("First Financing"),
and a second closing of approximately $3,000,000 ("Second Financing").
NOW, THEREFORE, IN CONSIDERATION OF THE RECITALS SPECIFIED ABOVE THAT SHALL BE
DEEMED TO BE A SUBSTANTIVE PART OF THIS AGREEMENT, AND THE MUTUAL COVENANTS,
PROMISES, UNDERTAKINGS, AGREEMENTS, REPRESENTATIONS AND WARRANTIES SPECIFIED IN
THIS AGREEMENT AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND
SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, WITH THE INTENT TO BE OBLIGATED
LEGALLY AND EQUITABLY, THE PARTIES DO HEREBY COVENANT, PROMISE, AGREE, REPRESENT
AND WARRANT AS FOLLOWS:
1. Term of Agreement. The respective duties and obligations of
the parties to this Agreement shall commence on the Effective Date and shall
continue for a period of one (1) year thereafter.
2. Services to be performed by Consultant. Consultant shall
consult with Client regarding the investor relations policy of Client and
coordinate for Client the consistent, accurate and timely dissemination of
information regarding Client to enable the public to make informed investment
decisions regarding Client's securities. In that regard, Consultant shall
consult with Client regarding all communications by and on behalf of Client with
the public regarding the financial performance, financial prospects, business
prospects or business plans of Client or any subsidiaries or any part of Client.
As used in this Agreement the term "public" shall contemplate and be defined as
any person outside of Client, including, but not limited to, a customer,
prospect, business partner, employee of entities with which Client has entered
into relationships or agreements, employee of a corporate investor, journalist,
news reporter, analyst of any kind whatsoever (including securities analyst,
industry analyst, and technical analysts, stock brokers, fund managers, friend
or family member). The services contemplated by the provisions of this Agreement
also contemplate that Consultant shall arrange, schedule and attend meetings and
conferences with analysts, brokers, managers and any other interested persons
and preparing
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information and materials regarding Client for distribution to those brokers,
analysts, investment advisors, managers and other persons and causing that
information and those materials to be distributed to brokers, managers,
analysts, advisors and other related and interested persons. Upon request
therefore, Client shall provide to Consultant sufficient information and
materials to enable Consultant to perform these services contemplated by the
provisions of this Agreement. The services contemplated by the provisions of
this Agreement also contemplate that Consultant shall consult with Client
regarding meaningful forward looking safe harbor cautionary statements, the
review of information provided to Client by financial and other analysts and the
review and editing of information posted on Client's website. Consultant shall
also consult with Client with respect to rumors regarding Client, its business
or prospects.
3. Completion Times. Consultant shall furnish to Client the
completed work at times to be mutually agreed upon by the parties. Working
schedules shall be predicated on normal working conditions and are subject to
adjustment at any time in the event of any cause or causes beyond the control of
Consultant.
4. Compensation. As compensation for services to be provided by
Consultant to Client pursuant to the provisions of the Agreement, Client shall
pay Consultant the principal amount of $400,000 upon closing of the First
Financing, and a further $500,000 upon closing of the Second Financing as
advances for services to be provided by the Consultant in accordance with
written budgets to be submitted to the Client. The Consultant will render
services to the Client in accordance with the written budgets unless the parties
otherwise agree. The $900,000 to be advanced to the Consultant shall constitute
the entire amount payable to the Consultant for compensation and reimbursement
of expenses hereunder.
5. Management Power of Consultant. The business affairs of Client
and the operation of Client's business shall be conducted by the officers,
administrative staff and employees of Client. It is the intention of Client not
to confer on Consultant, and Consultant shall not have, any power of direction,
management, supervision or control of the administrative staff or other
employees of Client, or otherwise be involved with the management of the
business of Client.
6. Services of Consultant not Exclusive. Consultant may
represent, perform services for, and be employed by, any additional persons as
Consultant, in Consultant's sole and absolute discretion, determines to be
necessary or appropriate.
7. Employment of Assistants. If it is necessary for Consultant to
have the aid of assistants or the services of any other person to perform the
duties and obligations required of Consultant pursuant to the provisions of this
Agreement, Consultant may from time to time employ, engage or retain the
services of such other person. Any and all costs to Consultant for those
services shall be chargeable to Consultant.
8. Failure to Act by Representative of Consultant. Any direction
given or service performed by any representative of Consultant, pursuant to the
provisions of this Agreement, shall constitute the direction, consultation or
the performance by Consultant. In the event, for any reason whatsoever, any
representative of Consultant is unable or unwilling to act or perform pursuant
to the provisions of this Agreement, that event shall not void this Agreement or
diminish its effect and the performance by any other representative of
Consultant shall constitute full and complete performance of Consultant's
obligations pursuant to the provisions of this Agreement.
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9. Governmental Rules and Regulations. The provisions of this
Agreement and the relationship contemplated by the provisions of this Agreement
are subject to any and all present and future orders, rules and regulations of
any duly constituted authority having jurisdiction of that relationship.
10. Confidential Information.
(a) Any and all confidential information communicated to
Consultant by Client, identified as such, regarding Client and its business
("Confidential Information"), including any Confidential Information gained by
Consultant or any of its agents, counsel, personnel, accountants, employees or
other representatives ("Consultant's Representatives"), whether or not that
Confidential Information was communicated directly or indirectly or
intentionally or inadvertently, is confidential.
(b) During the term of this Agreement and at all times
thereafter Consultant shall use its best efforts to prevent inadvertent
disclosure to any other person of any Confidential Information. Consultant shall
instruct Consultant's Representatives to keep that information confidential by
using the same care and discretion Consultant's Representatives use with similar
information and data designated by Consultant as confidential.
(c) Any and all Confidential Information constitutes an
exceptionally invaluable trade secret of Client.
(d) The Confidential Information shall belong exclusively
to, and shall be the property of, Client.
11. Copies of Confidential Information. Copies of any and all
Confidential Information may not be made without the express written permission
of Client. Any and all such copies shall be returned to Client with the
originals of that Confidential Information.
12. Return of Confidential Information. Consultant shall return to
Client, promptly at request of Client, any and all Confidential Information
which Client shall have provided to Consultant.
13. Ownership of Books, Records, and Papers. All books and records
relating to shareholders of client shall be the exclusive property of Client.
All such books and records shall be returned immediately to Client by Consultant
on any termination of this Agreement.
14. Registration Status of Consultant. Consultant is not engaged
in the business of affecting transactions in securities. Neither Consultant nor
any of its officers, directors, shareholders or employees is registered with any
agency as a broker-dealer, investment advisor or investment manager and, as
result, is precluded by law from providing to Client services which would be
considered to be those of a broker-dealer, investment advisor or investment
manager. In that regard, Consultant shall not offer, offer to sell, offer for
sale, sell, or attempt to induce the purchase or sale of any securities. None of
the services to be provided by Consultant pursuant to the provisions of this
Agreement are intended to be, or shall be construed as, offering or selling
securities, or providing investment, legal or tax advice. Consultant makes no
guarantees or promises to Client regarding the results of Consultant's services
to be provided pursuant to the provisions of this Agreement.
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15. Information to be furnished by Client. Client shall furnish to
Consultant any and all information, financial records, documents, shareholder
and other information as may be required by Consultant to enable Consultant to
provide the services contemplated by the provisions of this Agreement. Client
shall, to the maximum extent permitted by law, indemnify and hold Consultant
harmless for, from and against any losses, claims, damages or liabilities, joint
or several, to which Consultant may become subject, insofar as such losses,
claims, damages or liabilities (or actions relating thereto) are caused by any
untrue statement or alleged untrue statement of any fact contained in any
information provided by Client to Consultant or resulting from or based on the
omission or alleged omission to specify a material fact required to be specified
or necessary to make information provided by Client to Consultant not
misleading. In that regard, Client shall reimburse Consultant for any and all
legal and other expenses incurred by Consultant in connection with investigating
or defending against any such loss, claim, damage, liability or action;
provided, however, Client shall not be liable in any such case to the extent
that any such loss, claim, damage, expense or liability results from or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made by Consultant. The indemnification specified by the provisions of
this Section 15 shall survive the termination of this Agreement.
16. Minimum Amount of Service. Any other provision of this
Agreement to the contrary notwithstanding, Consultant shall devote only so much
time to consult with Client regarding investor relations and related matters as
Consultant, in Consultant's sole and absolute discretion, determines to be
appropriate and necessary.
17. Relationship Created. Consultant is not an employee or agent
of Client for any purpose whatsoever, but Consultant is an independent
contractor. Client is interested only in the results obtained by Consultant, and
Consultant shall have complete and sole control of the manner and means of
performing pursuant to the provisions of this Agreement. Client shall not have
the right to require Consultant to take any action which would jeopardize the
relationship of independent contractor between Client and Consultant. All
expenses and disbursements, including, but not limited to, those for travel and
maintenance, entertainment, officer, clerical, and general administrative
expenses which may be incurred by Consultant in connection with this Agreement
shall be borne and paid completely by Consultant, and Client shall not be in any
way responsible or liable for those expenses, or any portion thereof. Consultant
shall have the right to appoint or otherwise designate suitable and desirable
employees, agents and representatives ("Consultant's Agents"). Consultant shall
be solely responsible for Consultant's Agents and their acts. Consultant's
Agents shall be at Consultant's own risk, expense, and supervision. Consultant's
Agents shall not have any claim against Client for salaries, commissions, items
of cost, or other forms of compensation or reimbursement. Consultant represents,
warrants, and covenants that Consultant's Agents shall be subordinate to
Consultant and subject to each and all of the terms, provisions, and conditions
applying to Consultant pursuant to the provisions of this Agreement. Consultant
shall be solely responsible for and shall pay any and all expenses incurred in
connection with the operation of Consultant's office and facilities and
Consultant's business activities. Consultant does not have, nor shall Consultant
hold itself out as having, any right, power, or authority to create any contract
or obligation, either express or implied, on behalf of, in the name of, or
obligating Client or pledge Client's credit, or extend credit in Client's name
unless Client shall consent thereto in advance and in writing.
18. The Consultant will provide its services hereunder in
compliance with all applicable securities laws and other laws, rules and
regulations and the Consultant will not make any representations or provide any
written information on the Client without the express approval
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of the Client, such approval not to be unreasonably withheld.
19. Recovery of Litigation Costs. If any legal or equitable action
or other proceeding is commenced for the enforcement or interpretation of this
Agreement, or because of an alleged dispute, breach, default or
misrepresentation regarding any of the provisions of this Agreement, the
successful or prevailing party in such action or proceeding shall be entitled to
recover reasonable attorneys' fees and other costs incurred in such action or
proceeding, in addition to any other relief to which such party may be entitled.
20. Entire Agreement. This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties regarding the subject
matter of this Agreement and specifies all the covenants and agreements between
the parties with respect to that subject matter, and each party acknowledges no
representations, inducements, promises, or agreements, orally or otherwise, have
been made by any party, or anyone acting on behalf of any party which are not
specified in this Agreement; and any other agreement, statement or promise
concerning the subject matter specified in this Agreement without including any
such part, parts or portion which, for any reason, hereafter may be declared
invalid.
21. Severability. In the event any part of this Agreement, for any
reason, is declared to be invalid, such decision shall not affect the validity
of any remaining portion of this Agreement, which remaining portion shall remain
in complete force and effect as if this Agreement had been executed with the
invalid portion of this Agreement eliminated, and it is hereby declared
intention of the parties would have executed the remaining portion of this
Agreement without including any such part, parts or portion which, for any
reason, hereafter may be declared invalid.
22. Number and Gender. Whenever the singular number is used in
this Agreement, and when required by the context, the same shall include the
plural, and vice versa; the masculine gender shall include the feminine and the
neuter genders, and vice versa; and the word "person" shall include corporation,
firm, trust, estate, joint venture, governmental agency, sole proprietorship,
political subdivision, company, congregation, organization, fraternal order,
club, league, society, municipality, association, joint stock company,
partnership, limited liability company, association, or other form of entity.
23. Successors and Assigns. This Agreement and each of the
provisions of this Agreement shall obligate and inure to the benefit the heirs,
executors, administrators, successors and assigns of each of the parties.
24. Indemnification by Parties. In addition to that
indemnification specified by the provisions of Section 15 of this Agreement,
each party to this Agreement shall save other party to this Agreement harmless
from and against and shall indemnify the other party for any liability, loss,
costs, expenses or damages howsoever caused by reason of any injury (whether to
body, property, or personal or business character or reputation) sustained by
any person or to any person or to property by reason of any act, neglect,
default, or omission of the indemnifying party. Each party shall pay any and all
amounts to be paid or discharged in the case of any action for any such damages
or injuries. If either party is sued in any court for damages by reason of any
of the acts of the other party, such other party shall defend said action (or
cause said action to be defended) at the expense of such other party and such
other party shall pay and discharge any judgment that may be rendered in any
such action. If such other party fails or neglects to so defend in any such
action, the party sued may defend in such action and any expenses, including
reasonable
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attorney's fees, which said party sued may pay or incur in defending said action
and the amount of any judgment which said party sued may be required to pay
shall be reimbursed by such other party promptly upon demand. The
indemnification specified by the provisions of this Section 24 shall survive the
termination of this Agreement.
25. Time. Time is of the essence of this Agreement and each and
all of the provisions of this Agreement.
26. Force Majuere. If any party is rendered unable, completely or
partially, by the occurrence of an event of "force majeure" (hereinafter
defined) to perform such party's obligations created by the provisions of this
Agreement, such party shall give to the other party prompt written notice of the
event of "force majeure" with reasonably complete particulars concerning such
event; thereupon, the obligations of the party giving such notice, so far as
those obligations are affected by the event of "force majeure," shall be
suspended during, but no longer than, the continuance of the event of "force
majeure." The party affected by such event of "force majeure" shall use all
reasonable diligence to resolve, eliminate and terminate the event of "force
majeure" as quickly as practicable. The requirement that an event of "force
majeure" shall be remedied with all reasonable dispatch as hereinabove
specified, shall not require the settlement of strikes, lockouts or other labor
difficulties by the party involved, contrary to such party's wishes, and the
resolution of any and all such difficulties shall be handled entirely within the
discretion of the party concerned. The term "force majeure" as used in this
Agreement shall be defined as and mean any act of God, strike, civil
disturbance, lockout or other industrial disturbance, act of the public enemy,
war, blockage, public riot, earthquake, tornado, hurricane, lightning, fire,
public demonstration, storm, flood, explosion, governmental action, governmental
delay, restraint or inaction, unavailability of equipment, and any other cause
or event, whether of the type enumerated specifically in this section or
otherwise, which is not reasonably within the control of the party claiming such
suspension.
27. Currency. All dollar amounts specified in this Agreement shall
refer to and mean United States Dollars.
28. Governing Law. This Agreement shall be deemed to have been
entered into in the City of Vancouver, Province of British Columbia and all
questions concerning the validity, interpretation, or performance of any of the
terms, conditions and provisions of this Agreement or of any of the rights or
obligations of the parties shall be governed by, and resolved in accordance
with, the laws of the Province of British Columbia, without regard to conflicts
of law principles. Any and all actions or proceedings, at law or in equity, to
enforce or interpret the provisions of this Agreement shall be litigated in the
Supreme Court of British Columbia within the City of Vancouver, Province of
British Columbia. No claim, demand, action, proceeding, litigation, hearing,
motion or lawsuit resulting from or with respect to this Agreement shall be
commenced or prosecuted in any jurisdiction other than the Province of British
Columbia, and any judgment, determination, finding or conclusion reached or
rendered in any other jurisdiction shall be null and void. Each party hereby
consents expressly to the jurisdiction of any court located within the City of
Vancouver, Province of British Columbia and consents that any service of process
in such action or proceeding may be made by personal service upon such party
wherever such party may be then located, or by certified or registered mail
directed to such party at such party's last known address.
29. Consent to Agreement. By executing this Agreement, each party,
for itself, represents such party has read or caused to be read this Agreement
in all particulars, and consents
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to the rights, conditions, duties and responsibilities imposed upon such party
as specified in this Agreement. Each party represents, warrants and covenants
that such party executes and delivers this Agreement of its own free will and
with no threat, undue influence, menace, coercion or duress, whether economic or
physical. Moreover, each party represents, warrants, and covenants that such
party executes this Agreement acting on such party's own independent judgment
and upon the advice of such party's counsel.
30. Survival of Representations and Warranties. All representation
and warranties made by each party to this Agreement shall be deemed made for the
purpose of inducing the other party to enter into and execute this Agreement.
The representations and warranties specified in this Agreement shall survive the
terminations of this Agreement and shall survive any investigations by either
party whether before or after the execution of this Agreement.
31. Reservation of Rights. The failure of any party at any time or
times hereafter to require strict performance by any of the warranties,
representations, covenants, terms, conditions and provisions specified in this
Agreement shall not waive, affect or diminish any right of such party failing to
require strict performance to demand strict compliance and performance therewith
and with respect to any other provisions, warranties, terms, and conditions
specified in this Agreement. Any waiver of any default shall not waive or affect
any other default, whether prior or subsequent thereto, and whether the same or
of a different type.
32. Execution in Counterparts. This Agreement may be prepared in
multiple copies and forwarded to each of the parties for execution. All of the
signatures of the parties may be affixed to one copy or to separate copies of
this Agreement and when all such copies are received and signed by all the
parties, those copies shall constitute one agreement which is not otherwise
separable or divisible.
33. Modification. No modifications, supplement or amendment of
this Agreement or of any covenant, representation, warranty, condition, or
limitation specified in this Agreement shall be valid unless the same is made in
writing and duly executed by both parties.
34. Further Assurances. The parties shall from time to time sign
and deliver further instruments and take any further actions as may be necessary
to effectuate the intent and purposes of this Agreement.
IN WITNESS WHEREOF, the parties have entered into and executed this
Agreement in duplicate as of the date specified in the preamble of this
Agreement.
"CLIENT" "CONSULTANT"
Blade Internet Ventures Inc., Westin Communications Inc.
a Nevada corporation a British Columbia corporation
By: By:
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Its: President Its: President
By: By:
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Its: Secretary Its: Secretary
