EXHIBIT 10.11
August 31, 2004
Xx. Xxxx Xxxxxx Chief Executive Officer IVI Communications, Inc.
0000 X. Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Dear Xx. Xxxxxx:
This letter agreement (the "Agreement") will confirm our understanding regarding
the engagement of THE RESEARCH WORKS, INC. ("RW"), a New Jersey corporation, to
provide equity research services to IVI COMMUNICATIONS, INC. ("Client") a Nevada
corporation.
Whereas RW is an independent research firm that provides research services with
respect to the securities of its clients, and whereas Client has publicly traded
securities and desires RW to provide equity research services with respect to
its common stock: now, therefore, in consideration of the mutual promises and
covenants herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, it is hereby agreed as
follows:
1. Term. The term of this Agreement ("Term") shall commence on the date of
your signing of this Agreement and shall continue through August 31, 2004
("End of the Full Term"), unless either party terminates this Agreement,
with or without cause, at an earlier date ("Early Termination Date") upon
delivery of written notice to the other party at the address set forth
hereinbelow.
2. RW Services. RW shall prepare an equity research report on Client
("Report") in substantially the same form as samples of RW's research
reports presently displayed at RW's Web site (xxx.xxxxxxxxxxxxxx.xxx).
Client shall have no editorial control over the opinions expressed in the
Report, and RW shall not supply to Client a draft copy of the Report.
RW shall complete and post a copy of the finished Report at its Web site
within six (6) weeks of the date of this Agreement and shall update the
Report on its Web site and on the Web site for Seaside Investment Trust,
PLC, on approximately a quarterly basis for the remainder of the Term.
Client shall notify RW in writing prior to the filing of any registration
statement for its shares, and again upon the effectiveness of such
registration, and RW shall suspend the updating of the Report during the
period commencing on date of written notification of a pending registration
and ending on the day following the effective date of such registration.
Client may make suggestions at any time for changes regarding the factual
content of the Report, but RW is under no obligation to accept such
proposed changes, and RW retains exclusive control over the opinions
expressed in the Report.
3. Fee. In consideration of RW's services, the Client shall pay to RW a fee
("Fee") consisting of two hundred seventy five thousand (275,000) shares of
Client's common stock. This Fee is due and payable upon the date on which
you sign this Agreement, and RW shall be under no obligation to issue any
Reports until it has received the Fee. The shares shall be issued in
certificate form for The Research Works, Inc. (c/o Xxxxxxx X. Xxxxxx, 000
Xxxxx Xxxxxx, Xxx Xxxx, XX 00000; tax # 00-0000000).
RW acknowledges that the common shares issued pursuant to this Agreement
(a) have not been registered under the Securities Act of 1933, as amended
(the "Act"), (b) cannot be offered or sold except pursuant to a
registration statement under the Act or an exemption from registration
under the Act, and (c) are being acquired for investment and not with a
view to the distribution thereof. RW represents that it is an "accredited
investor" as such term is defined by Rule 501(a) of Regulation D and also
acknowledges that its officers and directors are capable of evaluating the
merits and risks of an investment in Client's common shares.
Should the Client terminate this Agreement prior to the End of the Full
Term for any reason other than RW's failure to perform in accordance with
the terms set forth in this Agreement, then no portion of the Fee shall be
refunded to the Client, except, however, that the Client may cancel this
Agreement without penalty within five (5) business days of Client's
entering into this Agreement, provided that the Client provides RW with
written notice of such cancellation in accordance with the terms of
Paragraph 6 of this Agreement.
Should the Client terminate this Agreement prior to the End of the Full
Term for RW's failure to perform in accordance with the terms set forth in
this Agreement, then a percentage of the Fee shall be refunded to the
Client; this percentage is the product of 50% times the result of the
division of the number of days from the Early Termination Date until the
End of the Full Term by the number of days from the commencement of the
Term until the End of the Full Term.
Notwithstanding the foregoing, Client shall recover the entire Fee from RW
if Client terminates this Agreement based on RW's failure to release the
initial Report in accordance with the time and manner mandated by Paragraph
2.
Should RW terminate this Agreement prior to the End of the Full Term, then
a percentage of the Fee shall be refunded to the Client; this percentage
shall be the product of 50% times the result of the division of the number
of days from the Early Termination Date until the End of the Full Term by
the number of days from the commencement of the Term until the End of the
Full Term.
Notwithstanding the foregoing, RW shall refund the entire Fee to Client if
RW terminates this Agreement prior to the release of the initial Report for
any reason other than Client's failure to perform in accordance with the
terms set forth in this Agreement.
4. Client's Representations and Covenants. Client represents and covenants
that:
(a) it will notify RW in writing prior to the filing of a registration
statement of any of its securities and it will not use the Report in
connection with any offering of securities without the prior written
consent of RW, and Client shall again notify RW upon the effectiveness of
such registration statement;
(b) it and its principals will keep confidential their knowledge of the
pending release of the Report;
(c) it will distribute the Report only in its entirety and in conformity
with all securities laws;
(d) it will cease any distribution of the Report when facts or management's
expectations are materially different from those presented or estimated in
such Report;
(e) it has received a copy of RW's brochure and Part II of RW's ADV
application, both of which are available for viewing at RW's web site
(xxx.xxxxxxxxxxxxxx.xxx); and
(f) it will indemnify and hold RW and its officers, employees and
independent contractors harmless from and against any loss, damage,
liability, or expense (including reasonable attorneys' fees and other costs
of litigation, regardless of outcome) arising out of or in connection with
(i) any breach of the representations and covenants made by Client in this
Xxxxxxxxx 0, (xx) false or misleading information provided to RW by Client,
or (iii) claims relating to the purchase and/or sale of Clients' securities
arising from RW's relationship with Client. In any action where Client's
indemnity applies, RW shall be entitled to its own separate counsel at
Client's expense. Neither termination nor completion of this Agreement
shall affect these indemnification provisions, which shall survive any such
termination or completion and remain operative and in full force and
effect.
5. Solicitor's fee. Client acknowledges that RW shall not pay any solicitor's
fee in connection with this Agreement.
6. Impaired provision. If any provision of this Agreement is held invalid,
illegal or unenforceable in any respect (an "Impaired Provision"),
(a) such Impaired Provision shall be interpreted in such a manner as to
preserve, to the maximum extent possible, the intent of the parties,
(b) the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby, and
(c) such decision shall not affect the validity, legality or enforceability
of such Impaired Provision under other circumstances. The parties agree to
negotiate in good faith and agree upon a provision to substitute for the
Impaired Provision in the circumstances in which the Impaired Provision is
invalid, illegal or unenforceable.
7. Severability of Provisions. If any provision of this Agreement shall be
declared by a court of competent jurisdiction to be invalid, illegal or
incapable of being enforced in whole or in part, the remaining conditions
and provisions or portions thereof shall nevertheless remain in full force
and effect and enforceable to the extent they are valid, legal and
enforceable, and no provision shall be deemed dependent upon any other
covenant or provision unless so expressed herein.
8. Non-Waiver. The failure of any party to insist upon the strict performance
of any of the terms, conditions and provisions of this Agreement shall not
be construed as a waiver or relinquishment of future compliance therewith,
and said terms, conditions and provisions shall remain in full force and
effect. No waiver of any term or condition of this Agreement on the part of
any party shall be effective for any purpose whatsoever unless such waiver
is in writing and signed by such party.
9. Notices. Any notice or other communication under this Agreement shall be in
writing and shall be deemed to have been duly given: (a) upon facsimile
transmission (with written transmission confirmation report) at the number
designated below; (b) when delivered personally against receipt therefore;
(c) one day after being sent by Federal Express or similar overnight
delivery; or (d) five (5) business days after being mailed registered or
certified mail, postage prepaid. The addresses for such communications
shall be as set forth below or to such other address as a party shall give
by notice hereunder to the other party to this Agreement.
If to Client: IVI Communications, Inc.
0000 X. Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxx, CEO
If to RW: The Research Works, Inc.
000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000
Telecopy: 000 000-0000
Attention: Xxxxxxx Xxxxxx, President
10. Governing Law / Arbitration. The terms of this Agreement will be governed
by and interpreted in accordance with the internal laws of the State of
ArizonaNew Jersey, without regard to the principles of conflict of laws.
Any controversy, dispute or claim between the parties relating to this
Agreement shall be resolved by binding arbitration in MaricopaMonmouth
County, New Jersey, in accordance with the rules of the American
Arbitration Association. Prior to the selection of the arbitrators of the
binding arbitration, the parties shall first attempt non-binding mediation
before a mediator selected by said Association. Each party shall bear its
own costs relating to such mediation, including attorney's fees and
expenses. The parties agree that in the event that any controversy, dispute
or claim between the parties relating to this Agreement is resolved by
binding arbitration, the prevailing party, if any, as determined by the
arbitrator's award, shall be entitled to reimbursement of all expenses
incurred in the arbitration including reasonable attorneys' fees, provided
that in no event shall the arbitrator have the authority to award punitive
damages. Judgment on the award may be entered in any court having
jurisdiction over the award.
11. Integration. This Agreement sets forth the entire agreement between the
parties with regard to the subject matter hereof. All prior agreements,
covenants, representations, and warranties, expressed or implied, oral or
written, with respect to the subject matter hereof, are contained herein.
All prior or contemporaneous conversations, possible and alleged
agreements, representations, covenants, and warranties, with respect to the
subject matter hereof, are waived, merged, and superseded hereby. This is
an integrated agreement.
12. Entire agreement. This Agreement sets forth the entire understanding of the
parties hereto with respect to the subject matter hereof and shall not be
modified, except by a written document signed by the parties.
13. Paragraph headings. The paragraph headings used in this Agreement are
included solely for convenience and shall not affect or be used in
connection with the interpretation of this Agreement.
14. Counterparts. This Agreement may be executed in counterpart signatures,
each of which shall be deemed an original, but all of which, when taken
together, shall constitute one and the same instrument, it being understood
that both parties need not sign the same counterpart. In the event that any
signature is delivered by facsimile transmission, such signature shall
create a valid and binding obligation of the party executing (or on whose
behalf such signature is executed) the same with the same force and effect
as if such facsimile signature page were an original thereof.
Please confirm your agreement with the foregoing by signing and returning one
copy of this letter to the undersigned whereupon this letter shall become a
binding Agreement as of the day and year first written above. The offer to enter
into this Agreement shall expire 21 days from the date of this letter.
Very truly yours,
THE RESEARCH WORKS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Xxxxxxx X. Xxxxxx
President
ACCEPTED AND AGREED:
IVI COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxxxxx
Chief Operating Officer
Reminder: Please remember to initial each page.
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