EXHIBIT 10.1
Marketing Consulting Agreement with Xxxxxx X. Xxxxxx
XXXXXXX XXXXXX
000 Xxxx Xxxxxx Xxxxxxxxx
Xxxxx 000X
Xxxxxx Xxxxx, XX 00000
November 29, 2001
CyberAds, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxx Xxxxx, XX 00000
Attention: Xx. Xxxxxxxx Xxxxxxxx, President
Re: Marketing Consulting Agreement
----------------------------------
Gentlemen:
Formalizing our earlier discussions this is to acknowledge and confirm
the terms of our Marketing Consulting Agreement ("Consulting Agreement") as
follows:
1. Appointment of Xxxxxxx Xxxxxx. CyberAds, Inc. (the "Company") hereby
engages Xxxxxxx Xxxxxx ("Xxxxxx") and Xxxxxx hereby agrees to render services to
the Company as a marketing consultant, strategic planner and advisor.
2. Duties. During the term of this Agreement, Xxxxxx agrees to provide
advice to, undertake for and consult with the Company concerning product
expansion and retrenchment, marketing consulting, strategic planning,
introductions to telecommunications carriers and related organizations,
evaluation and survey of the Company's products and services in order to
maintain market share and market penetration, and review and advice to the
Company regarding its overall progress, needs and condition.
3. Term. The term of this Consulting Agreement shall be for a six-month
period commencing on the date hereof.
4. Compensation. As compensation for his services hereunto CyberAds
shall issue to Xxxxxx 200,000 shares of restricted common stock, options to
purchase 500,000 shares of common stock of the Company having a term of two
years from the date hereof exercisable at $0.60 per share, and options to
purchase 200,000 shares of common stock of the Company having a term of two
years from the date hereof exercisable at $.80 per share (collectively, the
"Option"). The form of the Option is attached hereto as Exhibit A. The
securities are restricted securities under the Securities Act of 1933 and may
not be sold or disposed of in the absence of a registration statement pertaining
to these shares or an exemption from registration under the Securities Act of
1933.
5. Purchase of Shares. The Option shall be issued solely in exchange
for previously provided and contemplated services and appropriate investment
restrictions shall be noted against the shares upon issuance.
6. Expenses. Xxxxxx shall be entitled to reimbursement by the Company
of such reasonable out-of-pocket expenses as Xxxxxx may incur in performing
services under this Marketing Consulting Agreement. Any significant expenses
shall be approved in advance with the Company.
7. Registration. The Company agrees to provide Xxxxxx with registration
rights at the Company's cost and expense and include the shares of common stock
underlying the Option in a registration statement to be filed by the Company
with the Securities and Exchange Commission within the proximate future.
8. Confidentiality. Xxxxxx will not disclose to any other person, firm
or corporation, nor use for its own benefit, during or after the term of this
Marketing Consulting Agreement, any trade secrets or other information
designated as confidential by the Company which is acquired by Xxxxxx in the
course of its performing services hereunder. (A trade secret is information not
generally known to the trade which gives the Company an advantage over its
competitors. Trade secrets can include, by way of example, products or services
under development, production methods and processes, sources of supply, customer
lists, marketing plans and information concerning the filing of pendency of
patent applications). Any management advice rendered by Xxxxxx pursuant to this
Marketing Consulting Agreement may not be disclosed publicly in any manner
without the prior written approval of Xxxxxx.
9. Indemnification. The Company agrees to indemnify and hold Xxxxxx
harmless from and against all losses, claims, damages, liabilities, costs or
expenses (including reasonable attorneys' fees (collectively the "Liabilities")
joint and several, arising out of the performance of this Marketing Consulting
Agreement, whether or not Xxxxxx is a part to such dispute. This indemnity shall
not apply, however, and Xxxxxx shall indemnify and hold the Company, its
affiliates, control persons, officers, employees and agents harmless from and
against all liabilities attributable to the negligence or willful misconduct of
Xxxxxx in the performance of his services hereunder which gave rise to the
losses, claim, damage, liability, cost or expense sought to be recovered
hereunder. The provisions of this paragraph 9 shall survive the termination and
expiration of this Marketing Consulting Agreement.
10. Independent Contractor. Xxxxxx and the Company hereby acknowledge
that Xxxxxx is an independent contractor. Xxxxxx shall not hold itself out as,
nor shall it take any action from which others might infer, that it is a partner
of, agent of or a joint venturer of the Company.
11. Miscellaneous. This Consulting Agreement sets forth the entire
understanding of the parties relating to the subject matter hereof. This
Marketing Consulting Agreement cannot be modified or changed, nor can any of its
provisions be waived, except by written agreement signed by all parties. This
Marketing Consulting Agreement shall be governed by the laws of the State of
Florida.
2
Please confirm that the foregoing correctly sets forth our
understanding by signing the enclosed copy of this letter where provided and
returning it to us at your earliest convenience.
Very truly yours,
/s/Xxxxxxx Xxxxxx
-----------------
Xxxxxxx Xxxxxx
ACCEPTED AND AGREED TO as
of the 29th day of November, 2001
CYBERADS, INC.
By:/s/Xxxxxxxx Xxxxxxxx
--------------------
President
3
EXHIBIT A
WARRANT TO PURCHASE
COMMON STOCK
OF
CYBERADS, INC.
This is to certify that XXXXXXX XXXXXX (the "Holder") is entitled,
subject to the terms and conditions hereinafter set forth, to purchase
__________ shares of Common Stock, $.001 par value per share (the "Common
Shares"), of CYBERADS, INC., a Florida corporation (the "Company"), from the
Company at the price per share and on the terms set forth herein and to receive
a certificate for the Common Shares so purchased on presentation and surrender
to the Company with the subscription form attached, duly executed and
accompanied by payment of the purchase price of each share purchased either in
cash or by certified or bank cashier's check or other check payable to the order
of the Company, or by other consideration as provided hereafter.
The purchase rights represented by this Warrant are exercisable
commencing on the date hereof through and including November 29, 2003, at a
price per Common Share of $_____.
The purchase rights represented by this Warrant are exercisable at the
option of the registered owner hereof in whole or in part, from time to time,
within the period specified; provided, however, that such purchase rights shall
not be exercisable with respect to a fraction of a Common Share. In case of the
purchase of less than all the Common Shares purchasable under this Warrant, the
Company shall cancel this Warrant on surrender hereof and shall execute and
deliver a new Warrant of like tenor and date for the balance of the shares
purchasable hereunder.
The Company agrees at all times to reserve or hold available a
sufficient number of Common Shares to cover the number of shares issuable on
exercise of this and all other Warrants of like tenor then outstanding.
This Warrant shall not entitle the holder hereof to any voting rights
or other rights as a shareholder of the Company, or to any other rights whatever
except the rights herein expressed and such as are set forth, and no dividends
shall be payable or accrue in respect of this Warrant or the interest
represented hereby or the Common Shares purchasable hereunder until or unless,
and except to the extent that, this Warrant shall be exercised.
In the event that the outstanding Common Shares hereafter are changed
into or exchanged for a different number or kind of shares or other securities
of the Company or of another corporation by reason of merger, consolidation,
other reorganization, recapitalization, reclassification, combination of shares,
stock split-up or stock dividend:
(a) The aggregate number, price and kind of Common Shares
subject to this Warrant shall be adjusted appropriately;
(b) Rights under this Warrant, both as to the number of
subject Common Shares and the Warrant exercise price, shall be adjusted
appropriately; and
(c) In the event of dissolution or liquidation of the Company
or any merger or combination in which the Company is not a surviving
corporation, this Warrant shall terminate, but the registered owner of this
Warrant shall have the right, immediately prior to such dissolution,
liquidation, merger or combination, to exercise this Warrant in whole or in part
to the extent that it shall not have been exercised.
The foregoing adjustments and the manner of application of the
foregoing provisions may provide for the elimination of fractional share
interests.
The Company will register the resale of the Common Shares under the
Securities Act of 1933 as soon as is reasonably practical following the date
hereof. Such registration shall be at the cost and expense of the Company for
those costs and expenses normally borne by issuers.
The Company shall not be required to issue or deliver any certificate
for Common Shares purchased on exercise of this Warrant or any portion thereof
prior to fulfillment of all the following conditions:
(a) The completion of any required registration or other
qualification of such shares under any federal or state law or under the rulings
or regulations of the Securities and Exchange Commission or any other government
regulatory body which is necessary;
(b) The obtaining of any approval or other clearance from any
federal or state government agency which is necessary;
(c) The obtaining from the registered owner of the Warrant, as
required in the sole judgment of the Company, a representation in writing that
the owner is acquiring such Common Shares for the owner's own account for
investment and not with a view to, or for sale in connection with, the
distribution of any part thereof, if the Warrants and the related shares have
not been registered under the Act; and
(d) The placing on the certificate, as required in the sole
judgment of the Company, of an appropriate legend and the issuance of stop
transfer instructions in connection therewith if this Warrant and the related
shares have not been registered under the Act to the following effect:
2
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR THE LAWS OF ANY STATE
AND HAVE BEEN ISSUED PURSUANT TO AN EXEMPTION FROM REGISTRATION
PERTAINING TO SUCH SECURITIES AND PURSUANT TO A REPRESENTATION BY THE
SECURITY HOLDER NAMED HEREON THAT SAID SECURITIES HAVE BEEN ACQUIRED
FOR PURPOSES OF INVESTMENT AND MAY NOT BE OFFERED, SOLD, TRANSFERRED,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF REGISTRATION. FURTHERMORE, NO
OFFER, SALE, TRANSFER, PLEDGE OR HYPOTHECATION IS TO TAKE PLACE WITHOUT
THE PRIOR WRITTEN APPROVAL OF COUNSEL OR THE ISSUER BEING AFFIXED TO
THIS CERTIFICATE. THE TRANSFER AGENT HAS BEEN ORDERED TO EXECUTE
TRANSFERS OF THIS CERTIFICATE ONLY IN ACCORDANCE WITH THE ABOVE
INSTRUCTIONS."
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
by the signature of its duly authorized officer.
CYBERADS, INC.
By:_____________________
Name: __________________
Title: President
Dated: November 29, 2001.
3
PURCHASE FORM
-------------
To Be Executed Upon Exercise of Warrant
The undersigned record holder of this Warrant hereby irrevocably elects
to exercise the right to purchase ________ Common Shares evidenced by this
Warrant, according to the terms and conditions thereof, and herewith makes
payment of the purchase price in full.
The undersigned requests that certificates for such shares and warrants
shall be issued in the name set forth below:
Dated: _________________________
NAME OF HOLDER:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________.
Signature: _________________________
Name: ______________________________
Title: _____________________________
[Print Name and Title of Signatory]
Name and address to whom certificates are to be issued if different from above:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________.
Social Security Number or other identifying number of transferee:
______________________________________________________________________________
_______________________________________________________________________.
If said number of shares and warrants shall not be all the shares
purchasable under this Warrant, the undersigned requests that a new Warrant for
the unexercised portion shall be registered in the name of:
______________________________________________________________________________
______________________________________________________________________________
Social Security Number or other identifying number:____________________________.
4
FORM OF ASSIGNMENT
------------------
FOR VALUE RECEIVED, ___________________________ hereby sells, assigns
and transfers to _____________________________________ (Social Security or I.D.
No. _______________________) the within Warrant, or that portion of this Warrant
purchasable for ______________ common shares together with all rights, title and
interest therein, and does hereby irrevocably constitute and appoint
______________________________________________ _____________________________,
attorney to transfer such Warrant on the register of the within named Company,
with full power of substitution.
Name of Holder: _______________________________________________________________
_____________________________________________________________________________.
________________________________________
Signature
Name: __________________________________
Title: ________________________________
(Print Name and Title of Signatory
Dated: ____________________________
Signature Guaranteed:
5
