Exhibit 4.10
FINANCIAL PUBLIC RELATIONS AGREEMENT
THIS FINANCIAL PUBLIC RELATIONS AGREEMENT ("Agreement") is made and entered into
this 1st day of June 2002 (the "Effective Date") by and between Bestnet
Communications Corp., a Nevada Corporation ("Company") and Liolios Group, Inc.,
a California Corporation ("Consultant").
RECITALS
Company desires to engage Consultant to perform certain financial public
relations services for it, and Consultant desires, subject to the terms and
conditions of this Agreement, to perform financial public relations services for
Company.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES AND UNDERTAKING HEREIN
CONTAINED AND FOR OTHER GOOD AND VALUABLE CONSIDERATION THE RECEIPT AND
SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED THE PARTIES AGREE AS FOLLOWS:
1. ENGAGEMENT OF CONSULTANT
Company hereby engages Consultant and Consultant hereby agrees to hold
itself available to render, and to render at the request of the
Company, independent advisory and consulting services for the Company
to the best of its ability, upon the terms and conditions hereinafter
set forth. Such consulting services shall include but not be limited
to the development, implementation and maintenance of an on-going
stock market support system that increases broker awareness of the
company's activities and stimulates investor interest in the Company.
The stock market support system shall include but not be limited to a
Shareholder Communication System, and Media Relation Systems, which
will be defined and developed by Consultant. It is understood that
Consultant's ability to relate information regarding the Company's
activities is directly proportionate to information availed by the
company to the Consultant.
2. TERM
The term of this Agreement ("Term") shall begin as of the Effective
Date and shall terminate six (6) months thereafter ("Anniversary
Date"), unless terminated in accordance with the provisions of this
Agreement. Following the Anniversary date, the engagement shall
continue as a month-to-month "at-will" agreement unless terminated by
either the Company or Consultant.
3. COMPENSATION
As compensation for the services rendered by the Consultant under this
Agreement, Company agrees to pay to Consultant $72,000 annually, at a
rate of $6,000 per month payable in advance of each month. This is in
addition to reimbursement of reasonable expenses, which may include
but limited to: press releases, investor conference calls, web-casts,
fax broadcasts, road-shows and out-of-pocket travel expenses.
Further as compensation to the consultant for services rendered
pursuit to this agreement, the Company shall, upon execution of this
agreement, issue warrants (collectively, the "Warrants") to purchase
up to 200,000 shares of common stock of BESC (the "Stock") at a price
of $.001 per share ($200.00 in the aggregate). The Warrants shall vest
and become exercisable, pursuant to the following schedule:
(a) 100,000 Warrants shall be granted and exercisable at a price of
$1.00 per share.
(b) 50,000 Warrants shall be granted and exercisable at a price of
$1.25 per share.
(c) 50,000 Warrants shall be granted and exercisable at a price of
$1.50 per share.
The vested Warrants shall have a term of two (3) years from the
Effective Date of this agreement and include standard "piggy-back"
registration rights.
4. CASHLESS EXERCISE
Consultant is granted "Cashless Exercise Rights", whereby a vested
Warrant shall automatically be exercised, without notice by the
Consultant, on the immediate day following date of successful vesting.
The Company shall deliver to consultant, without payment by Consultant
of any Exercise Price or any cash or other consideration, the number
of Company Shares computed using the following formula:
X = Y(A-B)
------
A
Where:
X = the number of Warrant Shares to be issued to the
Consultant pursuant to the exercise of this Warrant
pursuant to this Section 4;
Y = the number of Shares that may be purchased upon
exercise of this Warrant;
A = the Market Price, as defined below, of one share of
Common Stock; and
B = the Exercise Price per share of Common Stock.
"Market Price" of a security means the average of the closing prices
of such security's sales on all securities exchanges on which such
security may at the time be listed, or, if there has been no sales on
any such exchanges on any day, the average of the highest bid and the
lowest asked prices on all such exchanges at the end of such day, or,
if on a day any such security is not listed, the average of the
representative bid and asked prices quoted in the NASDAQ System as of
4:00pm Eastern Time.
5. INDEPENDENT CONTRACTOR
It is expressly agreed that the Consultant is acting as an independent
contractor in performing its services hereunder. Company shall carry
no workmen's compensation insurance or any health or accident
insurance to cover Consultant. Company shall not pay any contributions
to social security, unemployment insurance, Federal or state
withholding taxes nor provide any other contributions or benefits
which might be expected in an employer-employee relationship.
6. CONFIDENTIAL INFORMATION
6.1 The term "Confidential Information" shall include, but not be
limited to, information regarding Company's business, plans,
customers, technology, and/or products that is confidential and
of substantial value to Company, which value would be impaired if
such information were disclosed to third parties.
6.2 Confidential Information shall not include information which (i)
is or becomes a part of the public domain through no act or
omission of the receiving party; or (ii) was in the receiving
party's lawful possession prior to the disclosure and had not
been obtained by the receiving party either directly or
indirectly from the disclosing party; or (iii) is lawfully
disclosed to the receiving party by a third party without
restriction on disclosure; or (iv) is independently developed by
the receiving party; or (v) is required to be disclosed by law
provided that the disclosing party has had seven (7) days to
respond to the request.
6.3 Consultant agrees, both during the term of this Agreement and for
a period of two years thereafter, to hold Company's Confidential
Information in confidence, and agrees not to make such
Confidential Information available in any form to any third
party, or use such Confidential Information for any other purpose
than the implementation of this Agreement. Consultant agrees to
take all reasonable steps to ensure that Company's Confidential
Information is not disclosed or distributed by its employees or
agents in violation of the provisions of this Agreement
7. TERMINATION
This Agreement may be terminated by either party for any reason upon
thirty (30) days notice in writing after the Anniversary Date. In the
event the Agreement is terminated, Consultant shall cease rendering
its services to Company as of the effective date of termination and
Company shall pay Consultant for the services performed and approved
expenses through the date of termination. Any materials created as the
result of Consultant's provision of services to Company shall be
delivered to Company within ten (10) days of the date of termination.
8. GENERAL PROVISIONS
8.1 GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and interpreted in accordance
with the laws of the State of California. Each of the Parties
hereto consents to such jurisdiction for the enforcement of this
Agreement and matters pertaining to the transaction and
activities contemplated hereby.
8.2 NON-CIRCUMVENTION AND NON-DISCLOSURE
Neither the Company nor its directors, officers, agents,
attorneys, employees, affiliates, representatives, successors, or
assigns (collectively referred to as the "Company") will attempt
to consummate a transaction with any financing sources, or
potential acquisition, introduced by the Consultant without first
notifying Consultant, and satisfying Consultant's right to a two
percent (2%) fee, on a per transaction basis, based on a finders
fee agreement to be set forth at a later date. This provision
will inure for a period of three (3) years form the date affixed
to this document. The Company shall keep completely confidential
the identity of all such financing parties. It is understood that
this Agreement is a reciprocal one between the signatories
concerning the privileged information and contacts.
8.3 NOTICES
As such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; five
(5) business days after deposit in any United States Post Office
in the continental United States, postage prepaid, if mailed;
when answered back, if telexed, when receipt is acknowledged or
confirmed, if telecopies.
8.4 ATTORNEY'S FEES
In the event a dispute arises with respect to this Agreement, the
party prevailing in such dispute shall be entitled to recover all
expenses, including, without limitation, reasonable attorney's
fees and expenses incurred in ascertaining such party's rights,
in preparing to enforce or in enforcing such party's rights under
this Agreement, whether or not it was necessary for such party to
institute suit. Further, in the event the Company, its officers,
and or its directors cause a dispute in which Consultant is
involved, the Company agrees to hold Consultant harmless, and
provide reasonable attorney fees. Company further agrees to
notify Consultant immediately of such event.
8.5 COMPLETE AGREEMENT
This Agreement supersedes any and all of the other agreements,
either oral or in writing, between the Parties with respect to
such subject matter in any manner whatsoever. Each Party to this
Agreement acknowledges that no representations, inducements,
promises or agreements, oral or otherwise, have been made by any
Party, or anyone herein, and that no other Agreement, statement
or promise not contained in the Agreement may be changed or
amended only by an amendment in writing signed by all of the
Parties or their respective successors-in-interest.
8.6 BINDING
This Agreement shall be binding upon and inure to the benefit of
the successors-in-interest, assigns and personal representatives
of the respective Parties.
8.7 EXECUTION IN COUNTERPARTS
This Agreement may be executed in several counterparts and when
so executed shall constitute one agreement binding on all the
Parties, notwithstanding that all the Parties are not signatory
to the original and same counterpart.
8.8 FURTHER ASSURANCES
From time to time each Party will execute and deliver such
further instruments and will take such other action as any other
Party may reasonably request in order to discharge and perform
their obligations and agreements hereunder and to give effect to
the intentions expressed in this Agreement.
8.9 INCORPORATION BY REFERENCE
All exhibits referred to in this Agreement are incorporated
herein in their entirety by such reference.
8.10 MISCELLANEOUS PROVISIONS
The various headings and numbers herein and the grouping of
provisions of this Agreement into separate articles and
paragraphs are for the purpose of convenience only and shall not
be considered a part hereof. The language in all parts of this
Agreement shall in all cases be construed in accordance with its
fair meanings as if prepared by all Parties to the Agreement and
not strictly for or against any of the Parties.
9. NOTICES
Any notice or other communication required or permitted hereunder
shall be in writing and shall be delivered personally,
telegraphed, telexed, sent by facsimile transmission (provided
acknowledgement of receipt thereof is delivered to the sender) or
sent by certified, registered or express mail, postage prepaid.
Any such notice shall be deemed given when so delivered
personally, telegraphed, telexed, sent by facsimile transmission
or, if mailed, three days after the date of deposit in the United
States mails as follows:
If to Consultant, to:
LIOLIOS GROUP, INC.
0000 XXXX XXXXX XXX, #000
XXXXXXX XXXXX, XX. 00000
If to Company, to:
BESTNET COMMUNICATIONS CORP.
0000 X. XXXXXXX XXXX, XXXXX X
XXXXX XXXXXX, XXXXXXXX 00000
or such address as any of the above shall have specified by
notice hereunder.
IN WITNESS WHEREOF, the Parties hereto have executed this
Agreement as of the day and year first hereinabove written.
BESTNET COMMUNICATIONS CORP.
By:
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Name: Xxx Xxxxxxxxx
Title: Chief Executive Officer
LIOLIOS GROUP, INC.
By:
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Name: J. Xxxxx Xxxxxxx
Title: President
