AGREEMENT
THIS AGREEMENT is entered into this Twenty fifth day of April, 1997,
BETWEEN:
PURCHASE POINT MEDIA CORPORATION,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000,
XXX
(herein the "Client")
- and -
Xxxxx Xxxx,
00000 Xxxxx Xxxxxx
Xxxxxxx Xxxxxx, Xxxxxxxxxx, 00000
(herein the "Contractor")
WHEREAS, the Client owns a patented grocery cart display panel (called
"The Last Word"(R) which contains a color insert for ten, three inch by three
inch advertisement frames, it is the Company's intention to have display panels
installed in shopping carts nationwide as soon as possible and to have each of
the ten frames sold to advertisers; and
WHEREAS, the Client desires to have the contractor on behalf of the
Client, sell to advertisers each of the advertisement frames at a rate of $2.25
per thousand customer check outs at the grocery store.
WHEREAS, the Contractor has. through his organization, the experience
and ability to sell the ten advertisement frames to advertisers either directly
to advertisers and or to advertisers through their respective ad agency; and
WHEREAS, the Contractor has available to him the services of Xxxx
Xxxx, X.X. Xxxxxx CPA, Xxxx Xxxxxx and others to assist him in carrying out the
intent of this agreement; and
WHEREAS, the Contractor desires to incorporate a Company called "Last
Word Management Inc." and to assign this agreement to said Company.
NOW, THEREFORE, in consideration of the mutual covenants,
representations and warranties herein contained, the parties hereto agree as
follows:
1. The Contractor will incorporate and staff a Company called Last Word
Management Inc. (LWM) and then attempt to negotiate an agreement with Xxxx Xxxx
to be President of LWM, X.X. Xxxxxx CPA to be Director and Comptroller of LWM
and also attempt to negotiate an agreement with Xxxx Xxxxxx to be a sales person
for LWM.
2. In the event that the Contractor is unable to negotiate a favorable agreement
with either of the parties mentioned in "1" above he will then negotiate with
others of equal talent to fill the need for the spot in LWM that would have been
filled by the said party or parties.
3. The Contractor will assign this contract to LWM as soon as LWM is
incorporated.
4. The Client shall pay the Contractor for services rendered under the terms of
this agreement in the form of cash and will cause certain shareholders of the
client to grant (incentive options) up to one million (1,000,000) common shares
of the common shares of the Client's Company, in stock options, to the
Contractor (optionee) as follows:
a. After the Company has collected two million five hundred thousand
dollars (USD), the optionee shall subject to the terms thereof (see option
agreement, attachment A), have the fight to exercise the Option from time to
time in whole or in part during a term commencing on the execution of the option
agreement (the "Commencement Date") and terminating at the end of sixty months
after that date ( At the close of business on the Expiry Date, or the Optionee
resigns or ceases to be an employee of Last Word Management Inc., the Option
shall expire and terminate and be of no further force or effect whatsoever. The
said options shall contain these further conditions, 1) The Optionee is an
employee of Last Word Management Inc., 2) The option price is one dollar ($1.00)
U.S. 3) As to one third (1/3) of the Optioned shares, provided the Client is
operational with a minimum of twelve hundred grocery stores and having
advertisement sales of at least eighty five percent of capacity of the display
panel. 4) The next one third are exercisable anytime during the second year (or
after) provided the Company is operational with a minimum of three thousand
(3,000) grocery stores and having advertisement sales of at least eighty five
percent of capacity of the display panel. 5) The final one third are exercisable
anytime in the third year (or after) provided the Company is operational with a
minimum of seven thousand five hundred (7,500) grocery stores and having
advertisement sales of at least eighty five percent of capacity of the display
panel.
b. As a show of good faith, the client will have the same shareholders
cause the issuance of(one half of the 1,000,000 optioned shares) five hundred
thousand (500,000) common shares (of the Client's Company) that the shareholders
are entitled to, to the following, Xxxx Xxxx 250,000 shares, X.X. Xxxxxx CPA
200,000 shares and Xxxx Xxxxxx 50,000 shares. These shares will be held in trust
until exercised pursuant to "4.a." above. The trustee will have the fight to
cancel the said 500,000 shares and have them reissued in the event that `T'
above is not accomplished within a reasonable period of time or, the shares are
not exercised pursuant to 4.a. above or, in the event the Contractor is unable
to satisfactorily accomplish "2" above, the Contractor may have the trustee
cancel the shares and have them reissued in the name of the replacement/s, as
provided for in "2" above. In order for the trustee to release the shares that
are in the name of Xxxx Xxxx, Xxxx Xxxx must, in addition to meeting the
provisions of 4.a above, deliver a cashiers check in favor of New Hope Community
Church for the amount of the shares being exercised. In order for the trustee to
release the shares to the other party or parties, the party or parties must,
deliver a cashier check in favor of Shiloah Springs Bible Retreat for the amount
of the shares being exercised. In the event that less than the full amount of
shares in the name of party on the share certificate are being exercised, the
respective party must also supply the trustee with a stock power of attorney
signed by the party and having a national bank signature guarantee in order for
the Client's transfer agent to breakdown the stock certificate.
5. DUTIES OF THE PARTIES
The Client will provide the Contractor with sales/marketing tools in
the way of Media kits for both ad agencies and potential advertisers and run
advertisements in trade journals to reach same. The Contractor will sell the ten
advertisement frames to advertisers either directly or through their ad agencies
on behalf of the client. The price that the contractor will charge the
advertisers on behalf of the Client is $2.25 per thousand customer checks outs
per month (for each of the ten advertisement frames) at the store. Contractor
will work with the client in preparing the advertisers contract. The Contractor
represents that he is able to and will perform and provide such services
pursuant to the terms of this agreement.
6. TERM
Except as otherwise provided in this Agreement, the Client agrees to
engage the Contractor to provide the Services for a term commencing April 25,
1997 and ending April 25, 2007. Should the Contractor provide services beyond
the end of the initial term of the Agreement (or the end of any automatic
renewals thereof), the term of this Agreement shall be automatically renewed for
an additional term of 1 year.
7. FEE
The Client agrees to pay the Contractor a fee for the Services provided
by the Contractor under the Agreement, based on Commissions on Total Net Sales.
Total Net Sales are equal to the Gross Sales less the advertising agency
commission of 15%. Commissions will be paid on the Consultants performance to
the Sales Goals.
A 1% Commission will be paid on 85% of Sales goal.
A 2% Commission will be paid on 95% of Sales goal.
A 3% Commission will be paid on 100% of Sales goal. less in the amount
or S0.00 per this agreement. Payments to Last Word Management will be in
accordance with the Pro forma Budget attached Schedule "B". Funds will be
advanced as required. Any expenses not allowed for in the Budget must be
approved in writing by the President of PPMC or their nominee.
8. EXPENSES
The Client shall advance the Contractor $420,000 to pay for the
expenses in accordance with the Pro forma Budget, attached Schedule B. Any
expenses not in the budget must first be approved by Client. Any other expenses
that are submitted for reimbursement to the Contractor will require pre-approval
of the Client prior to its expenditure. Each quarter, Client and Contractor will
review the proceeding quarter expenses and prepare a new budget for the
following quarter.
9. INDEPENDENT CONTRACTOR
The Consultant's relationship with the Client as created by this
Agreement is that of an independent contractor for the purposes of the Income
Tax Act and any similar provincial or state taxing legislation. It is intended
that the Contractor shall have general control and direction over the manner in
which its services are to be provided to the Client under this Agreement.
Nothing contained in this Agreement shall be regarded or construed as creating
any
relationship (whether by way of employer/employee, agency, joint venture,
association, or partnership) between the parties other than as an independent
contractor as set forth herein.
10. TIME AND EFFORT
The Contractor shall be free to devote such portion of the Contractors time,
energy, effort and skill to efficiently perform its duties in a manner to
achieve the agreed goals of the Client. The Contractor shall perform the
Services, as set out in this Agreement, in a timely and professional fashion.
11. AUTHORITY
The Contractor acknowledges that it is being retained as a Contractor to the
Client and that as such it does not have the authority and cannot commit or bind
the Client to any matter, contract or negotiation without the prior written
authorization of the Client.
12. COMPLIANCE
A. The Client and Contractor shall comply with all applicable federal,
provincial, state and municipal laws, rules and regulations arising out of or
connected with the performance of the Services under this Agreement.
B. The Contractor shall be responsible for all Employee deductions,
such as, Social Security contributions, tax deductions, or any other compulsory
employee benefits/contributions as required, relating to or arising out of the
fees paid to the Contractor under this Agreement and the Services performed by
the Contractor or its employees. Payments relating to any of the above shall be
the responsibility of the Contractor and shall be forwarded by the Contractor as
appropriate, directly to the government agencies involved. Proof of compliance
with this requirement shall be available to the Client upon request.
13. KEY PERSON
The parties acknowledge that Xxxxx Xxxx and Xxxx Xxxx will be a key employee of
LWM, the Contractor to be and they will be an integral part to the successful
performance of the Services conducted by the Contractor under this Agreement. It
is acknowledged by the Contractor that Xxxxx Xxxx and Xxxx Xxxx will take full
responsibility for the Services, unless the Client otherwise consents in
writing.
14. CONFIDENTIAL INFORMATION
A. The Contractor acknowledges that certain sensitive material and
information made available to the Contractor by the Client in the performance of
the Services (the "Confidential Information") will be of a confidential nature.
The Contractor recognizes that the Confidential Information is the sole and
exclusive property of the Client, and the Contractor shall use its best efforts
and exercise utmost diligence to protect and maintain the confidentiality of the
Confidential Information. The Contractor shall not, directly or indirectly, use
the Confidential Information for its own benefit, or disclose to another, any
Confidential Information, whether or not acquired, learned, obtained or
developed by the Contractor alone or in conjunction with
others, except as such disclosure or use may be required in connection with the
performance of the Services or as may be consented to in writing by the Client.
B. The Confidential Information is and shall remain the sole and
exclusive property of the Client regardless of whether such information was
generated by the Contractor or by others, and the Contractor agrees that upon
termination of this Agreement it shall deliver promptly to the Client all such
tangible parts of the Confidential Information including records, data, notes,
reports, proposals, client lists, correspondence, materials, marketing or sales
tonnation, computer programs, equipment, or other documents or properly which
are in the possession or under the control of the Contractor without retaining
copies thereof.
C. Each of the foregoing obligations of the Contractor in this clause
shall also apply to any confidential information of customers, joint venture
parties, contractors and other entities, of any nature whatsoever, with whom the
Client or any associate or affiliate of the Client has business relations.
D. Not withstanding the foregoing provisions of this clause, the
Contractor shall not be liable for the disclosure or use of any of the
Confidential Information to the extent that: (a) the Confidential Information is
or becomes available to the public from a source other than the Contractor and
through no fault of the Contractor;
E. The covenants and agreements contained in this clause shall survive
the termination of this Agreement.
15. NONCOMPETITION
A. The Contractor acknowledges that, by reason of performing the
Services, it will receive the value and advantage of special training, sicills
and expert knowledge and experience of the Client and the clients and employees
of the Client. It is the expressed intent and agreement of the Contractor and
the Client that such training, skills, knowledge and experience be used solely
and exclusively in the best interests of the Client. The Contractor therefore
agrees that for a period of 3 years from the date of termination of this
Agreement, however caused, it will not, for any reason, directly or indirectly,
either as an individual or as a partner or as part of a joint venture, or as an
employee, or in any other capacity, be engaged or employed in a business which
is in direct or indirect competition with the Client involving the specific
activities performed by the Contractor on behalf of the Client within the World,
unless prior written permission to such activity is given by the Client.
B. The Contractor agrees that, during the term of this Agreement, and
for a period of 3 years following termination of this Agreement, however caused,
it will not hire or take away, or cause to be hired or taken away any employee
of the Client. The Client also agrees that under the same terms and conditions
it will not hire or take away any employee of the Contractor with out the
approval of the contractor.
C. The Contractor hereby agrees that all restrictions in this clause
are reasonable, valid and do not go beyond what is necessary to protect the
interests of the Client, and all defenses to the strict enforcement thereof by
the Client are hereby waived by the Contractor. The provisions of this clause
are only intended to safeguard against the Contractor participating in
competitive endeavors against the Client and shall not in any way restrict or
limit the Contractor from engaging in subsequent businesses which are not in
competition with the Client.
D. The parties agree that if any covenant or provision in this clause
is determined to be void or unenforceable at law due to period of time,
geographical area, or otherwise, then such covenant or provision shall be
reduced in scope or mended, as to term, geographical area or otherwise, to the
extent required so that the covenant or provision, as so reduced or mended, is
enforceable at law and the unenforceable part shall be deemed to be severed from
the balance, which balance shall survive and be of full force and effect.
E. The covenants and agreements contained in this clause shall survive
the termination of this Agreement.
16. TERMINATION
A. In the event that the Contractor breaches this Agreement, or
otherwise fails to perform the Services in accordance with the terms of this
Agreement, the Client may terminate this Agreement immediately and without
notice for cause. In the event that the Client should effect premature
termination of this contract without cause, the Client will pay the Contractor a
termination fee of six months fees The intent is to cover the cost of
dismantling the company and the termination of employee contracts.
B. Upon termination of this Agreement:
(a) the Client's obligations to the Contractor under this Agreement
shall terminate except for the Client's obligation to pay any fees and
expenses in accordance with the terms of this Agreement as stated
above in A, to the date of termination; and
b) the Consultant's obligations to the Client under this Agreement
shall terminate except those obligations which are specifically
expressed to survive the termination of this Agreement.
17. INDEMNIFICATION
A. The Contractor hereby undertakes to, and does hereby agree to, indemnify the
Client and its directors, officers and employees against any and all actions,
suits, claims, costs, demands, losses, damages and expenses which may be brought
against or suffered by them or which they may sustain, pay or incur by reason of
the breach by the Contractor of any of the provisions of this Agreement.
18. GOVERNING LAW
This Agreement shall be governed by the laws of the State of Delaware.
19. SEVERABILITY
If any provision of this Agreement, or the application of such provision to any
person or in any circumstance, shall be determined to be invalid, illegal or
unenforceable, the remaining provisions of this Agreement, and the application
of such provision to any person or in any circumstance
other than that to which it is held to be invalid, illegal or unenforceable,
shall not be affected thereby.
21. AMENDMENTS
Any amendment to this Agreement must be in writing and signed by both parties
hereto.
22. TIME OF ESSENCE
Time shall be of the essence in this Agreement.
23. INDEMNIFICATION
This is the entire Agreement between the Client and the Contractor with respect
to the consulting services to be provided by the Contractor to the Client and
supersedes any prior agreements with respect to such services whether written or
oral.
24. NOTICES
Notices hereunder shall be in writing and must be either personally delivered or
sent by double registered mail to the address(e8) set forth above. A party may
change the address set forth above by proper notice to the other.
25. NO WAIVER
The failure of any party to insist upon the strict performance of a covenant or
obligation hereunder, irrespective of the length of time for which such failure
continues, shall not be a waiver of such party's right to demand strict
performance in the future. No consent or waiver, express or implied, to or of
any breach or default in the performance of any covenant or obligation hereunder
shall constitute a consent or waiver to or of any other breach or default in the
performance of the same or of any other obligation hereunder.
22. ASSIGNMENT
This Agreement is personal in nature and may not be assigned by either party
hereto unless there is written mutual consent of both parties, except as
provided for herein.
23. ENUREMENT
This Agreement shall be binding upon and shall enure to the benefit of each of
the parties hereto and their respective employees and permitted receivers,
successors and assigns.
IN WITNESS HEREOF, the parties hereto have entered into this Agreement as of the
day and year first above written.
Purchase Point Media Corporation Xxxxx Xxxx
Per: /s/ Xxxxxx Xxxxxx /s/ Xxxxx Xxxx
--------------------------- ----------------------------
Xxxxxx Xxxxxx Xxxxx Xxxx
President
