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FINANCIAL PUBLIC RELATIONS AGREEMENT
This Agreement (the "Agreement") is dated Friday November 19, 2004 and is
entered into by and between Ten Stix (hereinafter referred to as "CLIENT") and
XxxxxXxxXxxxx.Xxx, Inc. (hereinafter referred to as "SCV"). This Agreement is
non-exclusive.
1 CONDITIONS. This Agreement will not take effect, and SCV will have no
obligation to provide any service whatsoever, unless and until CLIENT
returns a signed copy of this Agreement to SCV (either by mail or facsimile
copy). CLIENT shall be truthful with SCV in regard to any relevant material
regarding CLIENT, verbally or otherwise, or this entire Agreement will
terminate and all monies paid shall be forfeited without further notice.
Agreed, CLIENT INITIALS: /DK/
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Upon execution of this Agreement, CLIENT agrees to cooperate with SCV in
carrying out the purposes of this Agreement, keep SCV informed of any
developments of importance pertaining to CLIENT's business and abide by
this Agreement in its entirety.
2 SCOPE AND DUTIES. During the term of this Agreement, SCV will perform the
following services for CLIENT:
2.1 Financial Public Relations. SCV will provide the following
services (collectively, the "Services"):
A. Call Xxxxxxxxxxxxx.xxx's proprietary list of portfolio
managers, traders, brokers, and analysts on behalf of
CLIENT.
B. Distribute CLIENT press releases by blast email and standard
mail to our double opt-in database of targeted investors
(100,000) and affiliated opt-in databases (totaling over 10
million OTC investors);
C. Produce (concept, research, writing, in-house printing) a
CLIENT Shareholder Communications / Investor Relations piece
that shall be distributed bi-monthly (every other month).
This Investor Relations (hereinafter referred to as "IR")
piece includes relevant milestone updates, contract news,
earnings/revenue growth updates, financing news about
CLIENT;
D. Feature Company in Internet chat broadcasts;
E. Write and distribute monthly CLIENT newsletter outlining
recent news headlines, brief industry trends, a quote from
management, and a XxxxxXxxXxxxx.xxx comment sent to a
XxxxxXxxXxxxx.xxx proprietary opt-in database of qualified
OTC investors as well as through XxxxxXxxXxxxx.xxx website;
F. Introduce CLIENT Company to network of analysts in several
areas of the investment community.
G. Add CLIENT information to XxxxxXxxXxxxx.xxx and affiliate's
interactive websites interactive portfolio website
(currently includes 5 financial websites);
H. Monitor Internet Market Activity regarding CLIENT on a daily
basis;
I. Provide general financial public relations support to
CLIENT;
J. Present CLIENT to various media and periodical sources;
3 Additional Duties. CLIENT and SCV shall mutually agree upon any additional
duties that SCV may provide for compensation paid or payable by CLIENT
under this Agreement. Although there is no requirement to do so, such
additional agreement(s) may be attached hereto and made a part hereof by
written amendments to be listed as "Exhibits" beginning with "Exhibit A"
and initialed by both parties.
4 Standard of Performance. SCV shall devote such time and efforts to the
affairs of the CLIENT as is reasonably necessary to render the services
contemplated by this Agreement. SCV is not responsible for the performance
of any services that may be rendered hereunder if the CLIENT fails to
provide the requested information in writing prior thereto. The services of
SCV shall not include the rendering of any legal opinions or the
performance of any work that is in the ordinary purview of a certified
public accountant. SCV cannot guarantee results on behalf of CLIENT, but
shall use commercially reasonable efforts in providing the services listed
above. If an interest is expressed in satisfying all or part of CLIENT's
financial needs, SCV shall notify CLIENT and advise it as to the source of
such interest and any terms and conditions of such interest. SCV's duty is
to introduce and market CLIENT's funding request to appropriate funding
sources. SCV will in no way act as a "broker-dealer" under state securities
laws. Because all final decisions pertaining to any particular investment
are to be made by CLIENT, CLIENT may be required to communicate directly
with potential funding sources.
5 Compensation to SCV (Quarterly Agreement).
5.1 CLIENT will pay for services described herein. The fees shown
below shall be payable as follows:
INITIAL PAYMENT DUE UPON EXECUTION BY CLIENT OF FINANCIAL PUBLIC RELATIONS
AGREEMENT: $5,000.00 and 6,000,000 Rule 144 shares of TNTI
6 Indemnification. The CLIENT agrees to indemnify and hold harmless SCV, each
of its officers, directors, employees and shareholders against any and all
liability, loss and costs, expenses or damages, including but not limited
to, any and all expenses whatsoever reasonably incurred in investigating,
preparing or defending against any litigation, commenced or threatened, or
any claim whatsoever or howsoever caused by reason of any injury (whether
to body, property, personal or business character or reputation) sustained
by any person or to any person or property, arising out of any act, failure
to act, neglect, any untrue or alleged untrue statement of a material fact
or failure to state a material fact which thereby makes a statement false
or misleading, or any breach of any material representation, warranty or
covenant by CLIENT or any of its agents, employees, or other
representatives. Nothing herein is intended to nor shall it relieve either
party from liability for its own act, omission or negligence. All remedies
provided by law, or in equity shall be cumulative and not in the
alternative.
SCV agrees to indemnify and hold harmless CLIENT, each of its officers,
directors, including but not limited to, any and all expenses whatsoever
reasonably incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever or howsoever
caused by reason of any injury (whether to body, property, personal or
business character or reputation) sustained by any person or to any person
or property, arising out of any grossly negligent act, any untrue or
alleged untrue statement of a material fact or failure to state a material
fact which thereby makes a statement false or misleading, or any breach of
any material representation, warranty or covenant by SCV or any of its
agents, employees, or other representatives. Nothing herein is intended to
nor shall it relieve either party from liability for its own act, omission
or negligence. All remedies provided by law, or in equity shall be
cumulative and not in the alternative.
7 CLIENT Representations. CLIENT hereby represents, covenants and warrants to
SCV as follows:
7.1 Authorization. CLIENT and its signatories herein have full power
and authority to enter into this Agreement and to carry out the
transactions contemplated hereby.
7.2 No Violation. Neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated hereby will violate
any provision of the charter or by-laws of CLIENT, or violate any terms of
provision of any other material agreement to which CLIENT is a party or any
applicable statute or law.
7.3 Contracts in Full Force and Effect. All contracts, agreements,
plans, leases, policies and licenses to which CLIENT is a party are valid
and in full force and effect.
7.4 Litigation. Except as set forth below, there is no action, suit,
inquiry, proceeding or investigation by or before any court or governmental
or other regulatory or administrative agency or commission pending or, to
the best knowledge of CLIENT, threatened against or invoking CLIENT, or
which questions or challenges the validity of this Agreement or its subject
matter and CLIENT does not know or have any reason to know of any valid
basis for any such action, proceeding or investigation.
7.5 Consents. No consent of any person, other than the signatories
hereto, is necessary to the consummation of the transactions contemplated
hereby, including, without limitation, consents from parties to loans,
contracts, lease or other agreements and consents from governmental
agencies, whether federal, state, or local.
7.6 SCV Reliance. SCV has and will rely upon the documents,
instruments and written information furnished to SCV by the CLIENT's
officers or designated employees.
7.7 CLIENT's Material. All representations and statements provided
herein about the CLIENT are true and complete and accurate. CLIENT agrees
to indemnify, hold harmless, and defend SCV, its officers, directors,
agents and employees, at CLIENT's expense for any proceeding or suit which
may raise out of any inaccuracy or incompleteness of any such material or
written information supplied to SCV.
7.8 CLIENT'S Affiliates and Other Material. To the best knowledge of
CLIENT, CLIENT represents and warrants that all representation and
warranties provided herein regarding CLIENT are true, complete and accurate
with respect to and if applied to CLIENT's affiliates as well.
7.9 Services Not Expressed or Implied. SCV is not and will not be a
market-maker (but may be a placement agent by other "Selling Agreement"
from time-to-time) in CLIENT's securities or in any securities or
securities in which CLIENT or CLIENT's affiliates has an interest; and, Any
payments made herein to SCV are not, and shall not be construed as,
compensation to SCV for the purpose of making a market, to cover SCV's
out-of-pocket expenses for making a market, or for the submission by SCV of
an application to make a market in any securities; and, No payments made
herein to SCV are for the purpose of affecting the price of any security or
influencing any market-making functions, including, but not limited to,
bid/ask quotations, initiation and termination of quotations, retail
securities activities, or for the submission of any application to make a
market.
7.10 Confidentiality. SCV and CLIENT each agree to keep confidential
and provide reasonable security measures to keep confidential information
where release may be detrimental to their respective business interests.
SCV and CLIENT shall each require their employees, agents, affiliates,
other licensees, and others who will have access to the information through
SCV and CLIENT respectively, to first enter appropriate non-disclosure
Agreements requiring the confidentiality contemplated by this Agreement in
perpetuity. SCV will not, either during its engagement by the CLIENT
pursuant to this Agreement or at any time thereafter, disclose, use or make
known for its or another's benefit any confidential information, knowledge,
or data of the CLIENT or any of its affiliates in any way acquired or used
by SCV during its engagement by the CLIENT. Confidential information,
knowledge or data of the CLIENT and its affiliates shall not include any
information that is, or becomes generally available to the public other
than as a result of a disclosure by SCV or its representatives.
8 Miscellaneous Provisions
8.1 Amendment and Modification. This Agreement may be amended,
modified and supplemented only by written agreement of SCV and CLIENT.
8.2 Waiver of Compliance. Any failure of SCV, on the one hand, or
CLIENT, on the other, to comply with any obligation, agreement, or
condition herein may be expressly waived in writing, but such waiver or
failure to insist upon strict compliance with such obligation, covenant,
agreement or condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure.
8.3 Expenses: Transfer Taxes, Etc. Other than as expressly set forth
in this Agreement, the parties shall bear their own costs and expenses in
carrying out the provisions of this Agreement.
8.4 Compliance with Regulatory Agencies. Each party agrees that all
actions, direct or indirect, taken by it and it's respective agents,
employees and affiliates in connection with this Agreement and any
financing or underwriting hereunder shall conform to all applicable Federal
and State securities laws.
8.5 Notices. Any notices to be given hereunder by any party to the
other may be effected either by personal delivery in writing, by a
reputable, national overnight delivery service, by facsimile transmission
or by mail, registered or certified, postage prepaid with return receipt
requested. Notices shall be addressed to the "Contact Person" at the
addresses appearing on the signature page of this Agreement, but any party
may change his address or "Contact Person" by written notice in accordance
with this subsection. Notices delivered personally shall be deemed
delivered as of actual receipt, notices sent by facsimile shall be deemed
delivered one (1) day after electronic confirmation of receipt, notices
sent by overnight delivery service shall be deemed delivered one (1) day
after delivery to the service, mailed notices shall be deemed delivered as
of five (5) days after mailing.
8.6 Assignment. This Agreement and all of the provisions hereof shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
8.7 Delegation. Neither party shall delegate the performance of its
duties under this Agreement without the prior written consent of the other
party.
8.8 Publicity. Neither SCV nor CLIENT shall make or issue, or cause to
be made or issued, any announcement or written statement concerning this
Agreement or the transactions contemplated hereby for dissemination to the
general public without the prior consent of the other party. This provision
shall not apply, however, to any announcement or written statement required
to be made by law or the regulations of any Federal or State governmental
agency, except that the party required to disclose shall consult with and
make reasonable efforts to accommodate changes to the required disclosure
and the timing of such announcement suggested by the other party.
8.9 Governing Law. This Agreement and the legal relations among the
parties hereto shall be governed by and construed in accordance with the
laws of the State of California, without regard to its conflict of law
doctrine. CLIENT and SCV agree that if any action is instituted to enforce
or interpret any provision of this Agreement, the jurisdiction and venue
shall be San Diego County, California.
8.10 Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
8.11 Headings. The heading of the sections of this Agreement are
inserted for convenience only and shall not constitute a part hereto or
affect in any way the meaning or interpretation of this Agreement.
8.12 Entire Agreement. This Agreement including any Exhibits hereto,
and the other documents and certificates delivered pursuant to the terms
hereto, set forth the entire agreement and understanding of the parties
hereto in respect of the subject matter contained herein, and supersedes
all prior agreements, promise, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any officers
employee or representative of any party hereto.
8.13 Third Parties. Except as specifically set forth or referred to
herein, nothing herein express or implied is intended or shall be construed
to confer upon or give to any person or entity other than the parties
hereto and their successors or assigns, any rights or remedies under or by
reason of this Agreement.
8.14 Attorneys' Fees and Costs. If any action is necessary to enforce
and collect upon the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees and costs, in addition to any other
relief to which that party may be entitled. This provision shall be
construed as applicable to the entire Agreement.
8.15 Survivability. If any part of this Agreement is found, or deemed
by a court of competent jurisdiction to be invalid or unenforceable, that
part shall be severable from the remainder of the Agreement.
8.16 Further Assurances. Each of the parties agrees that it shall from
time-to-time take such actions and execute such additional instruments as
may be reasonably necessary or convenient to implement and carry out the
intent and purposes of this Agreement.
8.17 Relationship of the Parties. Nothing contained in this Agreement
shall be deemed to constitute either party becoming the partner of the
other, the agent or legal representative of the other, nor create any
fiduciary relationship between them, except as otherwise expressly provided
herein. It is not the intention of the parties to create nor shall this
Agreement be construed to create any commercial relationship or other
partnership. Neither party shall have any authority to act for or to assume
any obligation or responsibility on behalf of the other party, except as
otherwise expressly provided herein. The rights, duties, obligations and
liabilities of the parties shall be separate, not joint or collective. Each
party shall be responsible only for its obligations as herein set out and
shall be liable only for its share of the costs and expenses as provided
herein.
8.18 No Authority to Obligate the CLIENT. Without the consent of the
Board of Directors of CLIENT, SCV shall have no authority to take, nor
shall it take, any action committing or obligating CLIENT in any manner,
and it shall not represent itself to others as having such authority.
9 Arbitration. WITH RESPECT TO THE ARBITRATION OF ANY DISPUTE, THE
UNDERSIGNED HEREBY ACKNOWLEDGE AND AGREE THAT: ARBITRATION IS FINAL AND
BINDING ON THE PARTIES; THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDY
IN COURT, INCLUDING THEIR RIGHT TO JURY TRIAL;
9.1 PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED AND DIFFERENT
FROM COURT PROCEEDING;
9.2 THE ARBITRATOR'S AWARD IS NOT REQUIRED TO INCLUDE FACTUAL FINDINGS
OR LEGAL REASONING AND ANY PARTY'S RIGHT OF APPEAL OR TO SEEK MODIFICATION
OF RULING BY THE ARBITRATORS IS STRICTLY LIMITED;
9.3 THIS ARBITRATION PROVISION IS SPECIFICALLY INTENDED TO INCLUDE ANY
AND ALL STATUTORY CLAIMS WHICH MIGHT BE ASSERTED BY ANY PARTY;
9.4 ALL DISPUTES, CONTROVERSIES, OR DIFFERENCES BETWEEN CLIENT, SCV OR
ANY OF THEIR OFFICERS, DIRECTORS, LEGAL REPRESENTATIVES, ATTORNEYS,
ACCOUNTANTS, AGENTS OR EMPLOYEES, OR ANY CUSTOMER OR OTHER PERSON OR
ENTITY, ARISING OUT OF, IN CONNECTION WITH OR AS A RESULT OF THIS
AGREEMENT, SHALL BE RESOLVED THROUGH ARBITRATION RATHER THAN THROUGH
LITIGATION;
9.5 THE UNDERSIGNED CLIENT HEREBY AGREES TO SUBMIT THE DISPUTE FOR
RESOLUTION TO THE AMERICAN ARBITRATION ASSOCIATION, IN SAN DIEGO,
CALIFORNIA WITHIN FIVE (5) DAYS AFTER RECEIVING A WRITTEN REQUEST TO DO SO
FROM ANY OF THE AFORESAID PARTIES;
9.6 IF ANY PARTY FAILS TO SUBMIT THE DISPUTE TO ARBITRATION ON
REQUEST, THEN THE REQUESTING PARTY MAY COMMENCE AN ARBITRATION PROCEEDING,
BUT IS UNDER NO OBLIGATION TO DO SO;
9.7 ANY HEARING SCHEDULED AFTER AN ARBITRATION IS INITIATED SHALL TAKE
PLACE IN SAN DIEGO COUNTY, CALIFORNIA, AND THE FEDERAL ARBITRATION ACT
SHALL GOVERN THE PROCEEDING AND ALL ISSUES RAISED BY THIS AGREEMENT TO
ARBITRATE;
9.8 IF ANY PARTY SHALL INSTITUTE ANY COURT PROCEEDING IN AN EFFORT TO
RESIST ARBITRATION AND BE UNSUCCESSFUL IN RESISTING ARBITRATION OR SHALL
UNSUCCESSFULLY CONTEST THE JURISDICTION OF ANY ARBITRATION FORUM LOCATED IN
SAN DIEGO COUNTY, CALIFORNIA, OVER ANY MATTER WHICH IS THE SUBJECT OF THIS
AGREEMENT, THE PREVAILING PARTY SHALL BE ENTITLED TO RECOVER FROM THE
LOSING PARTY ITS LEGAL FEES AND ANY OUT-OF-POCKET EXPENSES INCURRED IN
CONNECTION WITH THE DEFENSE OF SUCH LEGAL PROCEEDING OR ITS EFFORTS TO
ENFORCE ITS RIGHTS TO ARBITRATION AS PROVIDED FOR HEREIN;
9.9 THE PARTIES SHALL ACCEPT THE DECISION OF ANY AWARD AS BEING FINAL
AND CONCLUSIVE AND AGREE TO ABIDE THEREBY;
9.10 ANY DECISION MAY BE FILED WITH ANY COURT AS A BASIS FOR JUDGMENT
AND EXECUTION FOR COLLECTION.
10 Term. This Agreement is a quarterly agreement for the term of ninety (90)
days and shall terminate automatically after ninety days from the date of
execution.
11 Non-Circumvention. In and for valuable consideration, CLIENT hereby agrees
that SCV may introduce (whether by written, oral, data, or other form of
communication) CLIENT to one or more opportunities, including, without
limitation, existing or potential investors, lenders, borrowers, trusts,
natural persons, corporations, limited liability companies, partnerships,
unincorporated businesses, sole proprietorships and similar entities (an
"Opportunity" or "Opportunities"). CLIENT further acknowledges and agrees
that the identity of the subject Opportunities, and all other information
concerning an Opportunity (including without limitation, all mailing
information, phone and fax numbers, email addresses and other contact
information) introduced hereunder are the property of SCV, and shall be
treated as confidential information by CLIENT, it affiliates, officers,
directors, shareholders, employees, agents, representatives, successors and
assigns. CLIENT shall not use such information, except in the context of
any arrangement with SCV in which SCV is directly and actively involved,
and never without SCV's prior written approval. CLIENT further agrees that
neither it nor its employees, affiliates or assigns, shall enter into, or
otherwise arrange (either for it/him/herself, or any other person or
entity) any business relationship, contact any person regarding such
Opportunity, either directly or indirectly, or any of its affiliates, or
accept any compensation or advantage in relation to such Opportunity except
as directly though SCV, without the prior written approval of SCV. SCV is
relying on CLIENT's assent to these terms and their intent to be bound by
the terms by evidence of their signature. Without CLIENT's signed assent to
these terms, SCV would not introduce any Opportunity or disclose any
confidential information to CLIENT as herein described.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed, all as of the day and year first above written.
CLIENT: Ten Stix, Inc.
By: /s/ Xxxxx Xxxxxxxx
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Date: November 19, 2005
Address: X.X. Xxx 00000
Xxxxxxxxxx, XX 00000
Contact Person: Xxxxx Xxxxxxxx
SCV:
XxxxxXxxXxxxx.Xxx, Inc.
By: /s/ Xxxxxx X. Xxxxx
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Date: November 19, 2005
Address: 0000 Xxxxxxxxxx
Xxxxx, XX 00000
Contact Person: Xxxxxx X. Xxxxx
