PUBLIC RELATION AGREEMENT WITH CACTUS CONSULTANTS INTERNATIONAL, INC.
Standard Form Corporate Public Relations Agreement
This Agreement, made this 31st day of August, 1998, by and between CACTUS
CONSULTANTS INTERNATIONAL, INC., a corporation duly organized in the State of
Arizona (hereinafter referred to as "CCI'), and XXXXX INTERNATIONAL HOLDING,
INC., (hereinafter referred to as '"Client"), Witnesseth:
1.00 RECITALS: That CCI tenders, among other services, Public Relations and
Investor Relations services for client companies that are in various stages of
growth who wish to develop and maintain public awareness about their companies
by providing corporate information on such companies and their concurrent
technology, products and/or services; and Client is a company in its start up or
growth stage and wishes to retain an independent, outside, Corporate Public and
Investor Relations Service firm that can assist Client to maintain public
awareness and interest in their company, technology, products and/or services;
NOW THEREFORE, in consideration of the mutual promises, covenants, and terms
between the parties hereto, it is agreed as follows:
1.01 TERM OF CONTRACT: Client hereby retains, employs, and otherwise engages the
services of CCI according to the terms described herewith commencing the 1 st
day of September, 1998, and continuing for a period of three (3) years, and said
retention by Client of CCI for the applicable period, shall be renewable at the
option of the parties by mutual agreement upon the same terms and conditions, or
as amended.
1.02 SERVICES TO BE PERFORMED BV CCI: The parties hereby agree that CCI will
expend its efforts as ALL independent contractor to, including, but not limited
to
a) receive information, including but not limited to, press releases,
financial information, news items, management information, business plan,
disclosure and filing information, product and/or services information,
technical information, and any and all information deemed by Client necessary
for CCI or any Public and Investor Relations firm to perform its obligations;
b) consult with Client on cost, terms, location, and other factors
regarding announcements and public venue for placement of such, and otherwise
arrange for publication of such information in public venue publications, and
all as may be more specifically described and designated in Exhibit " A";
c) consult with, make commentary on, suggest, advise, or otherwise
review and/or amend, at Client's direction, information provided to CCI by the
Client for performance of its duties;
d) disseminate, mail, courier, distribute, and make available, on an
individual transactional basis, or larger group basis, all at agreed
specifications, and according to the terms and conditions specified in Exhibits
" A " and "B", information deemed by the Client necessary for CCI to perform the
services as more specifically described in this Agreement and the Exhibits
herein;
e) provide telephone reception and response services on an individual
or program basis, relay verbal information, and, render general, non-specified,
telephone response, and follow up response, and those same services as may be
more specifically described in Exhibit " A" or otherwise requested by the
Client;
f) provide telephone contract and presentation services to designated
parties, prearranged parties, and otherwise as may be more specifically directed
by Client or described in Exhibit " A";
g) in turn to retain, employ, utilize or rent, any employees,
subcontractors, agents, consultants, advisors, or plant, property, or equipment,
on CCI's behalf, or Client's behalf, as the case may be, all necessary and
ordinary for CCI to perform the services as more specifically described in this
Agreement and the Exhibits herein;
1.03 ESTOPPEL AND WAIVER: Client hereby agrees, covenants, and warrants, that
CCI is a retained independent contractor to Client, and that no agent, employee,
or servant of CCI shall be deemed to be, including but not limited to, a
Director, Officer, employee, agent or servant of Client; further Client hereby
agrees that Client, its employees, officers, directors, and agents, are estopped
from making, and waive their right to make, any claim, demand, petition, civil
or court action, file any proceeding, or otherwise allege any right, duty, or
liability against CCI, its directors, officers, employees, agents or servants,
that CCI, its employees, agents, or servants, is anything other than an
independent contractor. Client further warrants that CCI performs its services
and makes available its plant, property, equipment and employees, and its manner
and means of rendering such services are under the sole control of CCI, as an
independent contractor. CCJ, as an independent contractor, is solely and
entirely responsible for the acts of its employees, agents, servants, and any
subcontractors. Additionally, Client warrants and attests that no Client or
Client company employee benefits that may currently be provided to its
employees, or provided in the future, are provided, nor are intended to be
provided to, CCI, its employees, agents, or servants, such employee benefits
that are standard, common, or normal for employers to provide for employees.
1.04 REPRESENTATIONS AND WARRANTIES BV CLIENT OF FURNISHED CORPORATE
INFORMATION: The Client hereby represents, covenants, and warrants to CCI that
all information, whether submitted to CCI pursuant to CCI performing its duties
to this Agreement, or submitted to CCI otherwise, by whatever means, shall
disclose all material facts and shall not omit any facts necessary to make such
information, statements, or significance made on behalf on the Client or its
affairs not misleading;
1.05 CLIENT INDEMNIFICATION OF CCI FOR CORPORATE INFORMATION AND ITS
DISSEMINATION: Client hereby covenants, warrants, and agrees that CCI is not
responsible for, and CCI is indemnified by Client for any claims, demands,
costs, fees, Attorneys' fees or retainers, fines, penalties, whether court
ordered, or not, and held otherwise harmless for, any and all information
relayed, transmitted, disseminated, distributed, or otherwise communicated by
whatever means, by CCI on the Client's behalf, or otherwise, whether in the
performance of CCI's duties, or not, including but not limited to, public or
private publication, dissemination by verbal or written means, by mail, courier,
telefax, or telephone; Client further covenants and warrants that any
information it supplies to CCI, in any original or amended form, and the
concurrent accuracy of such information, and its compliance with any Copyright
laws, status, or protection, is solely the responsibility of the Client, and
Client is free to seek advise of its own Counsel regarding the accuracy of any
information it provides CCI, the manner of dissemination of such information in
the public venue, whether directly by Client, by arranged publication, or
whether by CCI, according to the terms of this Agreement, or not.
1.06 AGREED POLICIES AND PROCEDURES: IT is hereby agreed between the parties
hereto, without limiting the foregoing, and as may be more specifically in the
Exhibits attached and made a part of this Agreement, that
a) from time to time, CCI, in the performance of its duties, may assist
with the preparation, amendment, drafting, editing, consulting, or critique of
the information provided by Client, and submit such prepared, amended, or edited
information to the Client for the purposes of review and approval; and
b) from time to time, CCI, in the performance of its duties, may submit
to Client, for purposes of final review and approval, suggested strategy,
consultation, advise, and/or additional policy or procedure regarding CCI's
potential Public and Investor Relations services; and
c) Client may request CCI, and CCI shall make, all corrections, changes
and amendments, in dealing with information and/or strategy, policy and
procedure that the Client may request; and
d) in all cases, Client shall have, and is deemed to have, all final
review and approval, of all disseminated information and policy and procedures,
and
e) with out limiting any of the foregoing, all approvals, corrections,
amendments, and strategies, policies and procedures, unless otherwise approved
by this Agreement, shall be signed by a duly authorized representative of the
Client, whether by original signature or by facsimile (telefax); Client may
also, if not specified by the terms of this Agreement, leave standing
instructions as to a final approval issue or series of issues regarding
information, proofs for publication, or other matters of policy or procedures;
the Client hereby designates the individual(s) listed in Exhibit "C" hereof as
authorized representative( s) for purposes of this Agreement, and CCI may rely
upon such designation;
f) staged payment Compensation terms, if applicable, shall be as
outlined in Exhibit(s) " A" and "B", and call for certification by CCI of
completion of services/project stage or phase, and CCI shall deliver its Invoice
to Client upon completion of such phase, and Client shall render payment for
such completed phase to CCI; CCI's Invoice, if applicable, may call for
reimbursement, advance, or settlement, of Costs and Expenses in connection with
its performance and completion of the agreed stage, phase, or project, if
applicable;
1.07 COMPENSATION AND TIME OF PERFORMANCE: IN return for CCI's services, Client
agrees to pay compensation as more specifically described in Exhibit "B" of this
agreement. Compensation is to be denominated in US dollars, in cash, or
property, as the case may be, and is either I) payable upon execution of this
agreement, all as stipulated in Schedule "B", or 2) payable, in whole or part,
in staged payments, as the case may be and as described in Exhibit(s) " A"
and/or "B" upon CCI beginning performance, completion of a phase of its
performance, or as otherwise specified by the parties.
a) Should compensation be paid, partially or wholly, and in lieu of
cash, in the form of securities as payment for services in kind, then Client and
CCI shall agree on the value of such securities tendered, and such valuation
will be stipulated and comprise, pro-rata a stipulated portion of the
Compensation, itemized in Schedule B. Should securities tendered by part of the
compensation, it is agreed between the patties hereto that, once tendered, CCI
shall have been deemed to have received final payment, for either all or part of
their compensation under this agreement; and
b) further, all investment risk of any securities tendered, shall be
agreed between the parties, to belong to CCI, to pass at the time of tender;
however, it is further agreed between the parties that the above term
"Securities" does not include "options to purchase" securities, of any issuer,
and that options will not have an ascertainable value for purposes of
compensation, thus will not be accounted for as described above. The parties
also agree, however, that should any such options be granted to CCI in
connection with this Agreement will be part of its compensation, or deemed to be
legal consideration for CCI's services; and
c) it is mutually agreed between the parties hereto, that CCI retains
the option to begin its performance under this agreement, prior to the payment
of its agreed Compensation, and that if performance has begun prior to the
execution of the Agreement, such performance by CCI is hereby agreed by Client
to be ratified and approved as if it were undertaken after execution of this
Agreement.
1.08 COSTS AND EXPENSES: OUT OF POCKET COSTS: RETAINERS AND ADVANCES: The
parties hereby agree that CCI, as an independent contractor, provides premises,
labor, consultation, and contractor services, among other services. All matters
regarding sharing of Costs and Expenses, whether allocated to Client, or
advanced on behalf of Client by CCI, or Costs and Expenses absorbed, as the case
may be, by CCI, and general matters regarding such Costs, Expenses, Retainers
and Advances ("Costs and Expenses") shall be stipulated to be expressed in U.S.
dollars, for accounting and other purposes. All such terms regarding Costs and
Expenses, Out of Pocket Costs, Retainers and Advances, now known or unknown, may
be stipulated and expressed as terms in Exhibit "B". Should the terms regarding
Costs and Expenses be not specified as described, then, from time to time
a) CCI may, in its discretion, advance, or allocate, on a reasonable
basis, sums in payment of, including, but not limited to, postage, supplies,
phone expenses, and other out of pocket expenses, that are costs and expenses of
Client, and reimbursable to CCI; and
b) CCI may, in its discretion, keep and maintain limited books and
records, in the form of an account deemed or carried as "Costs and Expenses
Advanced or Allocated on behalf of Client"; and
c) CCI shall advise Client on a regular basis, all as is practicable,
the total amount of Costs, Out of Pocket Costs, and Expenses, deemed to be and
attributable to Client, together with those described Costs and Expenses that
have been paid ( or paid, then allocated) by CCI on behalf of Client, together
with those Costs and Expenses that remain Due and Payable but remaining unpaid,
belonging to 3rd party vendors on behalf of Client; and
d) that any Costs and Expenses, Out of Pocket Expenses or Advances
made, advanced, or allocated by CCI to any party become an Accounts Receivable (
or, as the case may be, "Expenses Receivable") for CCI, and an Accounts Payable
for Client; Costs and Expenses, Bills, Invoices and other Costs directly billed
or invoiced in either CCI's name, on behalf of Client, or directly billed by 3rd
party vendors, all remaining unpaid, as the case may be, remain an Accounts
Payable to the Client to such 3rd party vendors; and
e) CCI may submit an Invoice, all in connection with, and consistent
with, this Agreement, from time to time, or on a regular basis; and without
limiting the foregoing, parties hereby expressly agree that nothing in the
aforesaid, or any other part of this Agreement, creates any obligation,
whatsoever, on the part of CCI, as an independent contractor, to advance, pay,
settle, negotiate, or otherwise absorb, any expense, cost, advance, claim,
invoice, fine, penalty, or bear any other item of expense, on behalf of Client
or its activities, and the parties agree, in good faith, that it is not CCI's
obligation to do so;
1.09 ASSIGNMENT AND DELEGATION: Neither party may assign any rights or delegate
any duties hereunder, without limiting the foregoing, including the retention by
CCI of subcontractors, agents, and sub- consultants, without the other party's
express prior written consent.
1.10 ENTIRE AGREEMENT: THIS writing, the Exhibits attached and made a part of
this Agreement herein, shall contain the entire agreement of the parties,
without limiting the foregoing, including CCI's option to begin performance,
such performance, if begun, being ratified by execution of this Agreement, and
pursuant to its execution, as aforesaid. No material representations were made
or relied upon by either party other than those expressly set forth in the
Agreement. Client understands that CCI may expend substantial financial sums and
work effort in the good faith performance of its services, and CCI makes no
guarantees, assurances or representations in regard to its performance under the
Agreement, to the results of Client's Corporate Public and Investor Relations
program or any other results of services required by Client pursuant to this
Agreement. No agent, employee or other representative of either party is
empowered to alter or amend any of the above terms, conditions, compensation,
matter of policy or procedure unless done in writing and signed by an executive
officer of both respective parties.
1.11 CONTROLLING: LAW AND VENUE: This Agreement's validity, interpretation and
performance shall be controlled by and construed under the laws of the State of
Arizona. The proper venue and jurisdiction shall be the Circuit Court in
Maricopa County, Arizona.
1.12 OTHER PREVAILING LAWS AND APPLICABILITY: THIS Agreement, the terms and
conditions therein, including, but not limited to, the manner of Compensation
that may be tendered by Client to CCI, or any payments In kind, may be, and are
deemed herein to be, contingent and subject to, including but not limited to,
Client's compliance with applicable State Securities Laws, Federal Securities
Laws, and Rules of the various applicable Securities Exchanges, Securities
Commissions, and NASD Broker-Dealer Rules and Regulations. Client understands,
agrees, covenants and warrants to the Client, or other parties in interest that
Client will make all applicable filings, registrations, amendments, and secure
opinions and exemptions, for any undertaking by Client in connection with the
tender or payment, in kind, or other obligation, to Client, of Securities,
Warrants, Options, Rights, or other tendered securities of Client. Further,
Client agrees that it will disclose any intended manner, type, or method of
registration of Securities in connection with this Agreement, and any timing of
such registration, with CCI, and that CCI, by and through its designated
Counsel, must approve and concur with the Client (or its designated Counsel), on
such manner and timing of any such registration. CCI also may reserve the right
to secure from Client, at Client' s cost, an Opinion of Counsel, that any
transaction regarding Securities is compliant with the applicable State or
Federal Laws regarding such. All costs and expenses in connection with the
aforesaid shall be borne by the Client.
1.13 CERTAIN AUTHORITIES TO CCI: Without limiting any provision in this
Agreement, Client may extend certain limited authorities or powers to CCI, or
certain officers or employees, ordinary and necessary to facilitate Client's
business and CCl's performance.
1.14 PREVAILING: PARTY: In the event of the institution of any legal proceedings
or litigation, at the trial level or appellate lever, with regard to this
Agreement, the prevailing party shall be entitled to receive from the
non-prevailing party all costs, reasonable attorney's fees and expenses.
1.15 FAILURE TO OBJECT NOT A WAIVER: The failure of either party to this
Agreement to object to, or to take affirmative action with respect to any
conduct of the other which is in violation of the terms of this Agreement shall
not be construed as a waiver of the violation or breach or of any future
violation, breach or wrongful conduct.
1.16 NOTICES: All notices or other documents under this Agreement shall be in
writing and delivered personally or mailed by certified mail, postage prepaid,
addressed to the representative or Company as follows:
COMPANY: CACTUS CONSULTANTS INTERNATIONAL, INC,
8360 East Xxx xx Xxxxxxx, Xxxx. 0.X000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxx X. Xxxxxxx
CLIENT: XXXXX INTERNATIONAL HOLDING, INC,
8360 East Xxx xx Xxxxxxx, Xxxx. X000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxx X. Xxxxxxx, President/CEO
1.17 HEADINGS: Headings in this Agreement are for convenience only and shall not
be used to interpret or construe its provisions. For all intents and purposes,
time is of the essence with this Agreement.
IN WITNESS WHEREOF, this Agreement is executed as of the date first above
written.
CACTUS CONSULTANTS INTERNATIONAL, INC.
XXXXX INTERNATIONAL HOLDING, INC.
BY: /S/ Xxx X. Xxxxxxx
-------------------------
XXX X. XXXXXXX
BY: /S/ Xxx Xxxxxxxx
-------------------------
XXX XXXXXXXX, DIRECTOR
