Exhibit 10.13
PUBLICITY AGREEMENT
THIS AGREEMENT ("Agreement"), dated November 17, 2003, is entered into
between Capital Financial Media, Inc. ("Publisher") with an address at 000X XX
0xx Xxxxxx, Xxxxxx Xxxxx, XX 00000; and Spectrum Sciences and Software Holdings
Corp. (the "Company") with an address at 00 Xxxx Xxxxxx XX, Xxxx Xxxxxx Xxxxx,
Xxxxxxx 00000. (Publisher and Company are individually referred to herein as a
"Party" or collectively referred to herein as the "Parties").
WITNESSETH:
WHEREAS, Company is publicly held, with its common stock currently trading
on the Pinksheets.
WHEREAS, Company desires to be publicized with the intention of making its
name and business better known to potential shareholders.
WHEREAS, Publisher is in the business of public relations, direct mail
advertising and other related activities.
WHEREAS, Company desires to engage Publisher to assist it in publicizing
its business activities.
NOW THEREFORE, in consideration of the mutual covenants and agreements of
each to the other as set forth herein, both Parties hereby agree as follows:
1. ENGAGEMENT. Company hereby engages Publisher, and Publisher hereby agreed
to be engaged, to prepare an advertising/advertorial product that prominently
features a report on Company (the "Product"), in substantially the form attached
hereto as Exhibit "A"; and, further, to distribute the Product to no less than
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Five Hundred Thousand (500,000) US residents. Such distribution shall be made
in accordance with the following schedule:
(a) Publisher shall mail the Product to 225,000 US residents upon its
receipt of $225,000, which $225,000 shall be paid to Publisher in accordance
with Section 5 of this Agreement. Such distribution shall conclude on the
seventh (7th) calendar day from Publisher's receipt of this installment; and
(b) Publisher shall mail the Product to 275,000 US residents upon its
receipt of $275,000, which $275,000 shall be paid to Publisher in accordance
with Section 5 of this Agreement. Such distribution shall conclude on the
seventh (7th) calendar day from Publisher's receipt of this installment.
2. ASSISTANCE. Company acknowledges Publisher will prepare and distribute the
Product. Publisher agrees to assist in additional advertising/advertorial
report mailings, as requested, based upon additional production budgets. All
advertising/advertorial disseminations sponsored by Company will be fully
disclosed as paid advertising (disclosing the amount and nature of compensation
and associated costs of the program as provided for by applicable US Securities
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Acts and other Regulations.)
3. PREPARATION OF REPORT. Before the mailing of the Product, Company shall
have an opportunity to review the information contained therein to ensure that
such information is true, correct and not misleading at that time. Company
shall provide Publisher with any changes to the Product on a timely basis.
4. COMPANY REVIEW. No material about Company shall be distributed by Publisher
unless and until Company has reviewed and approved same. Company will act
diligently and promptly in reviewing materials submitted to it by Publisher to
enhance timely distribution of the materials and will inform Publisher, in
writing, of any inaccuracies contained in the material prepared prior to the
projected publication and/or delivery dates. Company will acknowledge in writing
that the material is acceptable (as corrected, if applicable).
5. PROGRAM COST AND DELIVERY SCHEDULE. In consideration for the services to
be performed by Publisher and the various vendors and sub-contractors as
described herein, Publisher will be paid $500,000 (the "Consideration"), which
includes reasonable allowance for Publisher's overhead and creative direction
incurred in connection with performance of this Agreement. The Consideration
shall be paid as follows:
(1) Seventy Five Thousand ($75,000) dollars due within five days of the
execution of this Agreement, which shall be a non-refundable initial deposit;
and
(2) Four Hundred Twenty Five Thousand ($425,000) dollars to be paid in
accordance with Schedule A of that certain agreement dated as of even date
herewith, entered into by Publisher and a third party (the "Secondary
Agreement"); and
(3) An equity compensation component to be paid in accordance with Schedule
B of the Secondary Agreement.
It is the intention of the Parties, and the Parties herein agree, that the
Secondary Agreement shall be entered into to obligate a third party for that
amount of Consideration which exceeds Seventy Five Thousand ($75,000) dollars.
6. PUBLISHER DISCLAIMER. PUBLISHER MAKES NO REPRESENTATION THAT: (A) ITS
PUBLICATION AND DISTRIBUTION OF THE PROGRAMS WILL RESULT IN ANY ENHANCEMENT TO
THE COMPANY, (B) THE PRICE OF THE COMPANY'S PUBLICLY TRADED SECURITIES WILL
INCREASE, (C) ANY PERSON WILL BECOME A SHAREHOLDER IN COMPANY AS A RESULT OF THE
DISTRIBUTION OR (D) ANY PERSON WILL LEND MONEY TO OR INVEST IN THE COMPANY.
7. LIMITATION OF PUBLISHER LIABILITY. If Publisher fails to perform its
services hereunder, its entire liability to Company shall not exceed the lesser
of: (a) the amount of cash payment Publisher has received from Company excluding
any non-refundable deposits and or (b) the actual and direct damage to Company
as a result of such non-performance. IN NO EVENT WILL PUBLISHER OR PARTNER BE
LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES NOR FOR ANY CLAIM
AGAINST COMPANY BY ANY PERSON OR ENTITY ARISING FROM OR IN ANY WAY RELATED TO
THIS AGREEMENT.
8. OWNERSHIP OF MATERIALS. All right, title and interest in and to materials
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to be produced by Publisher in connection with the services to be rendered under
this Agreement shall be and remain the sole and exclusive property of it.
9. CONFIDENTIALITY. Until such time as the same may become publicly known,
Publisher agrees that any information provided to it by Company of a
confidential nature will not be revealed or disclosed to any person or entity,
except in the performance of this Agreement, and upon completion of its services
and upon the written request to it. Notwithstanding the foregoing, Publisher
shall be liable for any revelation of confidential information that arises from
sources other than directly from the beneficial owners of Publisher, being
recognized and understood that in the course of performance of this Agreement,
many persons will have to receive access to such materials.
10. NOTICES. All notices hereunder shall be in writing and addressed to the
party at the address herein set forth, or at such address as to which notice
pursuant to this section may be given, and shall be given by personal delivery,
by certified mail (return receipt requested), Express Mail, or by national
overnight courier. If Company is a non-resident of the United States; the
equivalent services of the postal system of the Company's residence may be used.
Notices will be deemed given upon the earlier of actual receipt or three (3)
business days after being mailed or delivered to such courier service.
NOTICES SHALL BE ADDRESSED TO PUBLISHER AT:
Capital Financial Media, Inc.
Attn: Xxxxx Xxxx
000X XX 0xx Xxxxxx.
Xxxxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
AND TO COMPANY AT:
Spectrum Sciences and Software Holdings Corp.
00 Xxxx Xxxxxx XX
Xxxx Xxxxxx Xxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Such addresses and notices may be changed at any time by either party by
utilizing the foregoing notice procedures. Any notices to be given hereunder
will be effective if executed by and sent to the attorneys for the parties
giving such notice, and in connection therewith the parties and their respective
counsel agree that in giving such notices counsel may communicate directly in
writing with such parties to the extent necessary to give such notice.
11. COMPLIANCE WITH LAW. Publisher shall have no obligation to send any
mailings to residents of States of the United States of America in which the
common stock of Company cannot be secondarily traded on a solicited basis.
Company and Publisher will agree upon the States to which the mailings will be
directed.
12. MISCELLANEOUS.
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(A) Governing Law. This Agreement shall be governed by and construed and
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enforced in accordance with the internal laws of the State of New York without
regard to the principles of conflicts of law thereof. Each party hereby
irrevocably submits to the non-exclusive jurisdiction of the State of New York
for the adjudication of any dispute hereunder or in connection herewith or with
any transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, or that
such suit, action or proceeding is improper.
(B) Venue. Any litigation under this Agreement shall have as its sole and
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exclusive venue the appropriate state or federal courts sitting in the State of
New York.
(C) Multiple Counterparts. This Agreement may be executed in multiple
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counterparts, each of which shall be deemed an original. It shall not be
necessary that each party execute each counterpart, or that any one counterpart
be executed by more than one party, so long as each party executes at least one
counterpart.
(D) Separability. If any one or more of the provisions of this Agreement
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shall be held invalid, illegal, or unenforceable, and provided that such
provision is not essential to the transaction provided for by this Agreement,
such shall not affect any other provision hereof, and this Agreement shall be
construed as is such provision had never been contained herein.
(E) Regulatory Acceptance. If the stock of Company is listed on a foreign
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exchange(s), this Agreement shall be subject to its acceptance by such
exchange(s) to the extent required by the rules of such exchange(s).
(F) Presumption Against Draftsman. The parties acknowledge that each party
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and its counsel have participated in the negotiation and preparation of this
Agreement. This Agreement shall be construed without regard to any presumption
or other rule requiring construction against the party causing the Agreement to
be drafted.
(G) The duties and obligation of Company shall inure to the benefit of the
Publisher.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, this Agreement is executed as of the day and year first
above written.
CAPITAL FINANCIAL MEDIA, INC. SPECTRUM SCIENCES AND SOFTWARE
HOLDINGS CORP.
By: /s/ Xxxxx Xxxx By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxx Name: Xxxxx Xxxxxxxx
Title: President Title: Secretary
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