SUMMIT MEDIA PARTNERS, INC. AGREEMENT
This SUMMIT MEDIA PARTNERS, INC. Agreement (the "Agreement") is entered
into on this 7th day of June, 2000, between Summit Media Partners, Inc., a
Florida corporation ("SMP"), and xxxxxxxxxxxxxx.xxx, Inc. a Delaware corporation
("Client").
Whereas, SMP is in the business of planning, developing and implementing
advertising, marketing and promotional campaigns for corporations and other
business entities ("Advertising and Promotional Services");
Whereas, the Client desires to retain SMP to provide the Advertising and
Promotional Services, and SMP desires to provide such Advertising and
Promotional Services to Client, pursuant to the terms, conditions and provisions
contained in this Agreement;
Now, therefore, in consideration of the mutual promises contained herein
and other good and valuable consideration the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Advertising and Promotional Services. Subject to Client's compliance
with each of the representations, warranties and covenants and agreements made
by Client in this Agreement, SMP agrees to provide to Client the Advertising and
Promotional Services identified on Exhibit A which is attached hereto and
incorporated herein by reference, for the period commencing on the latter of
(the "Effective Date") the date that this Agreement is executed and delivered by
Client or the date that SMP receives payment of its fees as herein provided and
expiring on the 92nd day following the effective date of this Agreement (the
"Term").
2. Obligations and Responsibilities of Client. As of the date hereof and
during the Term of this Agreement, Client agrees as follows.
1. Representation and Warranties.
Client represents and warrants to SMP that:
(1) Organization. Client is a corporation duly organized,
validly existing and in good standing under the laws of the
State of its incorporation and it is duly qualified to do
business as a foreign corporation in each jurisdiction in
which it owns or leases property or engages in business.
(2) Formal Action. Client has the corporate power and authority
to execute and deliver this Agreement and to perform each of
its obligations hereunder and this Agreement has been duly
approved by Client's Board of Directors.
(3) Valid and Binding Agreement. This Agreement has been duly
executed and delivered by Client and is the valid and
binding obligation of Client enforceable against it in
accordance with its terms.
(4) No Violation. The execution, delivery and performance of
this Agreement does not and will not violate any provisions
of the charter or bylaws of Client or any agreement to which
Client is a party or any applicable law or regulation or
order or decree of any court, arbitrator or agency of
government and no action of, or filing with, any
governmental or public body or authority is required in
connection with the execution, delivery or performance of
this Agreement.
(5) Accuracy of Information. The information furnished by Client
to SMP regarding the business, operations, financial
condition, including financial statements, business plans
and biographical information regarding the Client's
directors and officers (collectively referred to as the
"Information Package") is complete and accurate in all
material respects and does not contain any untrue statement
of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under
which they were made not misleading.
2. Covenants and Agreements.
Client covenants and agrees to comply with the following covenants:
(1) Client Certification. Client acknowledges that it is responsible for
the accuracy and completeness of the Information Package and for all
other information furnished to SMP and for the accuracy and
completeness of the contents of all materials prepared by SMP for and
on behalf of Client. The Client hereby designates the individuals
listed on Exhibit B attached hereto and incorporated herein by
reference as the duly authorized representatives of Client for
purposes of certifying to SMP the accuracy of all documents,
advertisements or other materials prepared by SMP for and on behalf of
Client. The Client agrees to promptly advise SMP in writing of any
condition, event, circumstance or act that would constitute a material
adverse change in the business, properties, financial condition or
business prospects of the Client or which would make any of the
information contained in the Information Package or in any report,
advertorial or other document prepared by SMP for and on behalf of
Client misleading in any material respect. Client hereby agrees that
SMP and its directors, officers, agents and employees may rely on the
Information Package and on all other information furnished by Client,
and on each and every certification provided by an authorized
representative of Client, until SMP is advised in writing by an
authorized representative of Client that the information previously
furnished to SMP is inaccurate or incomplete in any material respect.
(2) Books and Records. Client shall maintain true and complete books,
records and accounts in which true and correct entries shall be made
of its transactions in accordance with generally accepted accounting
principles consistently applied ("GAAP").
(3) SMP Reliance on Client's Full Disclosure. Client will provide, or
cause to be provided, to SMP all financial and other information
requested by SMP for the purpose of rendering its services pursuant to
this Agreement. Client recognizes and confirms that SMP will use such
information in performing the services contemplated by this Agreement
without independently verifying such information and that SMP does not
assume any responsibility for the accuracy or completeness of such
information. The persons executing this Agreement on behalf of Client
certify that there is no fact known to them which materially adversely
affects or may (so far as the Client's senior management can now
reasonably foresee) materially adversely affect the business,
properties, condition (financial or other) or operations (present or
prospective) of the Client which has not been set forth in written
form delivered by Client to SMP. The persons executing this Agreement
on behalf of Client agree to keep SMP promptly informed of any facts
hereafter know to Client which materially adversely affects or may (so
far as the Client's senior management can now reasonably foresee)
materially adversely affect the business, properties, condition
(financial or other) or operations (present or prospective) of Client.
(4) Legal Representation. Client acknowledges and agrees that it has been
and will continue to be, represented by legal counsel experienced in
corporate and securities laws and Client acknowledges that it has been
advised as to the obligations imposed on it pursuant to such laws and
understands that it will have the obligation and responsibility to see
that all such laws are complied with at all times during the Term of
this Agreement.
3. Compensation. In consideration of the Advertising and Promotional
Services to be performed by SMP hereunder, Client hereby agrees to compensate
SMP in the manner and in the amount specified in Exhibit C which is attached
hereto and incorporated herein by reference thereto.
4. Indemnity. Client acknowledges that it is responsible for the accuracy
of the Information Package and all other information provided to SMP and for the
contents of all materials, advertorials and other information prepared by SMP
for an on behalf of Client as provided herein and Client agrees to indemnify SMP
in accordance with the Indemnification Agreement set forth in Exhibit D, which
is attached hereto and incorporated herein by reference.
5. Relationship of the Parties. This Agreement provides for the providing
of marketing, promotional and advertising services by SMP to Client and the
provisions herein for compliance with financial covenants, and similar
provisions are intended solely for the benefit of SMP to provide it with
information on which it may rely in providing services hereunder and nothing
contained in this Agreement shall be construed as permitting or obligating SMP
to act as a financial or business advisor or consultant to Client, as permitting
or obligating SMP to participate in the management of client's business, as
creating or imposing any fiduciary obligation on the part of SMP with respect to
the provisions of services hereunder and SMP shall have no such duty or
obligation to client, as providing or counseling Client as to the compliance by
Client with any federal or state securities or other laws effecting the services
to be provided hereunder, or as creating any joint venture, agency, or other
relationship between the parties other than as explicitly and specifically
stated in this Agreement. The Client acknowledges that it has had the
opportunity to obtain the advice of experienced counsel of its own choosing in
connection with the negotiation and execution of this Agreement, the provision
of services hereunder and with respect to all matters contained herein,
including, without limitation, the provisions of Section 4 hereof.
6. Non-Solicitation Covenant. Client agrees that it will not directly or
indirectly during the term of this Agreement or for three years following the
termination or expiration of this Agreement, either voluntarily or
involuntarily, for any reason whatsoever, recruit or hire or attempt to recruit
or hire any employee of SMP or of any of its affiliates or subsidiaries, or
otherwise induce any such employees to leave the employment of SMP or of any of
its affiliates or subsidiaries or to become an employee of or otherwise be
associated with Client or any affiliate or subsidiary of Client. Client
acknowledges that SMP and its affiliates and subsidiaries have invested a
significant amount of time, energy and expertise in the training of their
employees to be able to provide Advertising and Promotional Services and Client
therefore agrees that this covenant is reasonable and agrees that the breach of
such covenant is very likely to result in irreparable injury to SMP, which is
unlikely to be adequately compensated by damages. Accordingly, in the event of a
breach or threatened breach by Client of this Section 8, SMP shall be entitled
to an injunction restraining Client and any affiliate, subsidiary or director or
officer thereof from recruiting, or hiring or attempting to recruit or hire any
employee of SMP or of any affiliate or subsidiary of SMP. Nothing herein shall
be construed as prohibiting SMP from pursuing any other remedies available to
SMP for such breach or threatened breach, including recovery of damages from
Client. The undertakings herein shall survive the termination or cancellation of
the Agreement for three years.
7. Miscellaneous.
A. Governing Law. This Agreement shall be governed by the laws
of the State of Florida applicable to contracts executed and performed in the
Circuit Court, Seminole County, in the State of Florida (without regard to the
principles of conflicts of laws).
B. Entire Agreement. This Agreement and the Exhibits hereto
embody the entire agreement of the parties with respect to its subject matter.
There are no restrictions, promises, representations, warranties, covenants, or
undertakings other than those expressly set forth or referred to herein. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to its subject matter.
C. Amendments to be in Writing. This Agreement may be amended
only in a writing signed by all of the parties.
D. No Waivers by Course of Dealing; Limited Effect of Waivers.
No waiver shall be effective against any party unless it is in a writing signed
by that party. No course of dealing and no delay on the part of SMP in
exercising its rights shall operate as a waiver of that right or otherwise
prejudice SMP. SMP's failure to insist upon the strict performance of any
provision of this Agreement, or to exercise any right or remedy available to
SMP, shall not constitute a waiver by SMP of such provision. No specific waiver
by SMP of any specific breach of any provision of this Agreement shall operate
as a general waiver of the provision or of any other breach of the provision.
Client shall have no right to cure any breach except as specifically provided
herein.
E. Notices. Any notice or other communication required or
permitted to be given hereunder shall be in writing, and shall be delivered to
the parties at the addresses set forth below (or to such other addresses as the
parties may specify by due notice to the others). Notices or other
communications shall be effective when received at the recipient's location (or
when delivered to that location if receipt is refused). Notices or other
communications given by facsimile transmission shall be presumed received at the
time indicated in the recipient's automatic acknowledgment. Notices or other
communications given by Federal Express or other recognized overnight courier
service shall be presumed received on the following business day. Notices or
other communications given by certified mail, return receipt requested, postage
prepaid, shall be presumed received 3 business days after the date of mailing.
Client: xxxxxxxxxxxxxx.xxx, Inc.
Xxxxx 000, 000 Xxxxxx Xxxxx
Xxxxxxxxx, XX X0X 0X0
Attn: Xxx Xxxxxxxx, President
SMP: Summit Media Partners, Inc.
000 Xxxxxxxx Xxxx.
Xxxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxx, President
F. Headings. The headings in this Agreement are intended
solely for convenience of reference. They shall be given no effect in the
construction or interpretation of this Agreement.
G. Severability. The invalidity or unenforceability of any
provision of this Agreement shall not impair the validity or enforceability of
any other provision.
[Remainder of page intentionally left blank]
In Witness Whereof, the parties have executed this Agreement as of the
date first above written.
Attest: XXXXXXXXXXXXXX.XXX, INC.
By: By:
Secretary
Xxx Xxxxxxxx,
President
[Corporate Seal]
Attest: SUMMIT MEDIA PARTNERS, INC.
By: By:
Secretary
Xxxxx Xxxxxxxx, President
[Corporate Seal]
This is page 5 to the Agreement entered into June 7, 2000 between Summit Media
Partners, Inc. and xxxxxxxxxxxxxx.xxx, Inc.
