MADISON & WALL
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W O R L D W I D E
MARKET ACCESS PROGRAM MARKETING AGREEMENT
THIS AGREEMENT (the "Agreement") made and entered into this 27th day of July,
2001, by and between MADISON & WALL WORLDWIDE, INC. located at 000 Xxxxxx
Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000 (hereinafter referred to as
"M&W") and BRIGHTCUBE, INC., located at 000 Xxxxxx Xxxxxx, Xx Xxxxxxx Xxxxxxxxxx
00000, (hereinafter referred to as the "Company").
WITNESSETH:
For and consideration of the mutual promises and covenants contained herein, the
parties hereto agree as follows:
1. EMPLOYMENT
Company hereby hires and employees M&W as an independent contractor; and
M&W does hereby accept its position as an independent contractor to the
Company upon the terms and conditions hereinafter set forth.
2. TERM
The term of this Agreement shall be for six (6) months.
3. DUTIES AND OBLIGATIONS OF M&W
M&W shall have the following duties and obligations under this Agreement.
3.1 M&W will review and analyze various aspects of the Company's
goals and make recommendations on feasibility and achievement of
desired goals.
3.2 Through its financial relations telemarketing division, M&W will
provide exposure to its network of firms and brokers that may be
interested in participating with the Company, schedule and
conduct the necessary due diligence, and obtain the required
approvals necessary for those firms to participate. M&W will also
interview and make determinations on any firms or brokers
referred by the Company with regard to their participation.
3.3 At the Company's request, M&W will be available to the Company to
field any calls from firms, individual investors/shareholders and
brokers inquiring about the Company- In addition, M&W will assist
the Company in preparing quarterly financial results and
coordinating corresponding conference calls and simulcasts on the
Internet in accordance with Regulation FD.
3.4 M&W will feature the Company on the Worldwide Internet via M&W's
home web site (xxx.xxxxxxxxxxxxxxxx.xxx), Specifically, M&W will
feature the Company's Fast Fact Sheet prepared and maintained by
M&W on its web site.
3.5 M&W shall, write, produce and assist the Company in releasing all
news announcements. The Company shall be solely responsible for
paying all fees associated with the actual release(s) through
BusincsssWire, P.R. Newswire, or any other comparable news
dissemination source. M&W will create, build and continually
enhance a fax database of all brokers, investors, analysts and
media contacts who have expressed an interest in receiving
m-going information on the Company. M&W will assist the Company
in setting up an account with a fax broadcasting agency to manage
the actual broadcasting in the event Company does not have this
capability in-house. Further, M&W will, at its discretion,
mass-fax broadcast select releases to its network of U.S,
stockbrokers, analysts and institutional investors.
3.6 M&W will serve as the Company's publicist and will strive to
obtain coverage in both national and industry publications, in
financial newsletters, on financial radio and television
programming and via traditional press mediums. Specifically, M&W
will facilitate an on-going outreach program to an intelligently
targeted universe of media professionals stemming from our list
of nearly 380,000 media contacts. Further, M&W will track
published articles and, in association with Burrelle's, provide
monthly clippings of those articles/mentions' Featuring the
Company,
3.7 At the Company's request, strive to obtain the Company analyst
coverage and/or investment banking sponsorship.
3.8 Arrange for a series of due diligence meetings with select
broker/dealers, institutional investors and analysts at
predetermined dates throughout the campaign term, while remaining
compliant with the rules and regulations associated with
Regulation FD.
3.9 ALL OF THE FOREGOING M&W PREPARED DOCUMENTATION CONCERNING THE
COMPANY, INCLUDING, BUT NOT LIMITED TO, FAST FACT SHEETS, NEWS
ANNOUNCEMENTS, SHAREHOLDER LETTERS, SHALL BE PREPARED BY M&W FROM
MATERIALS SUPPLIED TO IT BY THE COMPANY AND SHALL BE APPROVED BY
THE COMPANY PRIOR TO DISSEMINATION BY M&W.
000 Xxxxxx Xxxxxxx Xxxx. Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000 * 407-682-2001
Fax-407-682-2544 xxx.xxxxxxxxxxxxxxxx.xxx
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4. M&W'S COMPENSATION
Upon the execution of this Agreement, Company hereby covenants and agrees
to pay M&W as follows:
4.1. $18,000, payable in monthly cash installments of $6,000 in cash
with the first three payments aggregating $18,000 due upon
execution of this Agreement and the second three cash payments
aggregating $18,000 due on the 9lst day following execution of
this Agreement. M&W will agree to deposit the first check for
$6,000 immediately upon receipt and all subsequent $6,000 checks
on the 15th of every month thereafter for the term of the
agreement.
4.2 173,333 shares of the Company's common stock, restricted pursuant
to Rule 144, and due within five (5) days following execution of
this Agreement. These 173,333 shares shall carry piggyback
registration rights for resale by M&W on the Registration
Statement to be filed with the Company with the U.S. Securities &
Exchange Commission within 45 days following execution of this
Agreement. In the event that the Company fails to file a
Registration Statement within 45 days following execution of this
Agreement, then the Company shall agree to issue M&W an
additional 30,000 shares for every 30 day period thereafter until
such time as the Registration Statement has been filed with the
U.S. Securities & Exchange Commission
4.2 M&W shall also be entitled to receive an option or warrant to
purchase up to 200,000 common shares of the Company's stock,
exercisable as follows:
- 100,000 common shares exercisable at $0.50 per share; and
- 100,000 common shares exercisable at $0.75 per share.
4.3 The Company shall agree to issue M&W piggyback registration
rights for the common shares underlying the option/warrants
listed above, whereby these shares will be registered for resale
by M&W on the first applicable Registration Statement filed by
the Company with the U.S. Securities & Exchange Commission, which
is expected to occur within 45 days following execution of this
Agreement; said underlying common shares shall be held by the
Company until such time as M&W elects to exercise its option or
warrant to purchase the common shares. In the event that the
Company's stock price is such that the option/warrants are "in
the money" in excess of 100% of the exercise price of the first
100,000 common shares, or $1.00 per share, then M&W shall be
entitled to receive demand registration rights on the underlying
shares, and the Company shall agree to file the applicable
Registration Statement with the U.S. Securities & Exchange
Commission within ten (10) days of M&W's formal demand to
register. The term of the option/warrant shall expire 24 months
from the date the Registration Statement registering the
underlying the option/warrant is deemed effective.
5. M&W'S EXPENSES AND COSTS
Company shall pay all reasonable costs and expenses incurred by M&W, its
directors, officers, employees and agents, in carrying out its duties and
obligations pursuant to the provisions of this Agreement, excluding M&W's
general and administrative expenses and costs, but including and not
limited to the following costs and expenses; provided all costs and
expense items in excess of $500.00 (Five Hundred U.S. Dollars) must be
approved by the Company in writing prior to M&W's incurrence of the same:
5.1 Travel expenses, including but not limited to transportation,
lodging and food expenses, when such travel is conducted on
behalf of the Company,
5.2 Seminars, expositions, money and investment shows.
5.3 Radio and television time and print media advertising costs, when
applicable.
5.4 Subcontract fees and costs incurred in preparation of research
reports, when applicable.
5.5 Cost of on-site due diligence meetings, if applicable.
5.6 Printing and publication costs of brochures and marketing
materials which are not supplied by the Company.
5.7 Corporate web site development costs.
5.8 Printing and publication costs of Company annual reports,
quarterly reports, and/or other shareholder communication
collateral, material which are not supplied by Company.
6. COMPANY'S DUTIES AND OBLIGATIONS
Company shall have the following duties and obligations under this
Agreement:
6.1 Cooperate fully and timely with M&W so as to enable M&W to
perform its obligations under this Agreement.
6.2 Within ten (10) days of the date of execution of this Agreement
to deliver to M&W a complete due diligence package on the Company
including all the Company's filings with the Securities and
Exchange Commission within the last twelve months, the last six
months of press releases on the Company and all other relevant
materials with respect to such filings, including but not limited
to corporate reports, brochures, and the like; a list of the
names and addresses of all the Company's shareholders known to
the Company; a list of the brokers and market makers in the
Company's securities and a list of analysts or fund mangers which
have been following the Company.
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6.3 The Company will act diligently and promptly in reviewing
materials submitted to it from time to time by M&W and inform M&W
of any inaccuracies contained therein prior to the dissemination
of such materials.
6.4 Immediately give written notice to M&W of any change in Company's
financial condition or in the nature of its business or
operations which had or might have an adverse material effect on
its operations, assets, properties or prospects of its business.
6.5 Immediately pay all costs and expenses incurred by M&W under the
provisions of this Agreement when presented with invoices for the
same by M&W.
6.6 Give full disclosure of all material facts concerning the Company
to M&W and update such information on a timely basis.
6.7 Promptly pay the compensation due M& W under the provisions of
this Agreement as defined in Section 4 herein.
7. NONDISCLOSURE
Except as may be required by law, Company, its officers, directors,
employees, agents and affiliates shall not disclose the contents and
provisions of this Agreement to any individual or entity without M&W's
expressed written consent subject to disclosing same further to Company
counsel, accountants and other persons performing investment banking,
financial, or related 'Functions for Company.
8. COMPANY'S DEFAULT
In the event of any default in the payment of M&W's compensation to be paid
to it pursuant to this Agreement, or any other charges or expenses on the
Company's part to be paid or met, or any part or installment thereof, at
the time and in the manner herein prescribed for the payment thereof and as
when the same becomes due and payable, and such default shall continue for
twenty five (25) days after M&W's notice thereof is received by Company; in
the event of any default in the performance of any of the other covenants,
conditions, restrictions, agreements, or other provisions herein contained
on the part of the Company to be performed, kept, complied with or abided
by, and such default shall continue for twenty five (25) days after M&W has
given Company written notice thereof, or if a petition in bankruptcy is
filed by the Company, or if the Company is adjudicated bankrupt, or if the
Company shall compromise all its debts or assign over all its assets for
the payment thereof, or if a receiver shall be appointed for the Company's
property, then upon the happening of any of such events, M&W shall have the
right, at its option, forthwith or thereafter to accelerate all
compensation, costs and expenses due or coming due hereunder and to recover
the same from the Company by suit or otherwise and further, to terminate
this Agreement. The Company covenants and agrees to pay all reasonable
attorney fees, paralegal fees, costs and expenses of M&W, including court
costs, (including such attorney fees, paralegal fees, costs and expenses
incurred on appeal) if M&W employs an attorney to collect the aforesaid
amounts or to enforce other rights of M&W provided for in this Agreement in
the event of any default as set forth above and M&W prevails in such
litigation. Further, until M&W has received the cash or stock as described
above in Section 4, M&W shall not be required to commence performing
hereunder.
9. COMPANY'S REPRESENTATIONS AND WARRANTIES
Company represents and warrants to M&W for the purpose of inducing M&W to
enter into and consummate this Agreement as follows:
9.1 Company has the power and authority to execute, deliver and
perform this Agreement.
9.2 The execution and delivery by the Company of this Agreement have
been duly and validly authorized by all requisite action by the
Company. No license, consent or approval of any person is
required for the Company's execution and delivery of this
Agreement. I
9.3 No representation or warranty by the Company in this Agreement
and no information in any statement, certificate, exhibit,
schedule or other document furnished, or to be furnished by the
Company to M&W pursuant hereto. or in connection with the
transactions contemplated hereby, contains or will contain any
untrue statement of a material fact, or omits or will omit to
state a material fact necessary to make the statements contained
herein or therein not misleading. There is no fact which the
Company has not disclosed to M&W, in writing, or in SEC filings
or press releases, which materially adversely affects, nor, so
far as the Company can now reasonably foresee, may adversely
affect the business, operations, prospects, properties, assets,
profits or condition (financial or otherwise) of the Company.
10. LIMITATION OF M&W LIABILITY
If M&W fails to perform its services hereunder, its entire liability to the
Company shall not exceed the lessor of (a) the amount of cash compensation
M&W has received from the Company under Section 4 of this Agreement or (b)
the actual damage to the Company as a result of such non-performance. IN NO
EVENT WILL M&W BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES
NOR FOR ANY CLAIM AGAINST THE COMPANY BY ANY PERSON OR ENTITY
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ARISING FROM OR IN ANY WAY RELATED TO THIS AGREEMENT, UNLESS SUCH DAMAGES
RESULT FROM THE USE, BY M& W, OF INFORMATION NOT AUTHORIZED BY THE COMPANY.
11. MISCELLANEOUS
11.1 Notices. Any notice or other communication required or permitted
to be given hereunder shall be in writing, and shall be deemed to
have been duly given when delivered personally or sent by
registered or certified mail, return receipt requested, postage
prepaid to the parties hereto at their addresses indicated
hereinafter. Either party may change his or its address for the
purpose of this paragraph by written notice similarly given.
11.2 Entire Agreement. This Agreement represents the entire agreement
between the Parties in relation to its subject matter and
supersedes and voids all prior agreements between such Parties
relating to such subject matter.
11.3 Amendment of Agreement. This Agreement may be altered or amended,
in whole or in part, only in a writing signed by both Parties.
11.4 Waiver. No waiver of any breach or condition of this Agreement
shall be deemed to be a waiver of any other subsequent breach or
condition, whether of a like or different nature, unless such
shall he signed by the person making such waiver and/or which so
provides by its terms.
11.5 Captions. The captions appearing in this Agreement are inserted
as a. matter of convenience and for reference and in no way
affect this Agreement, define, limit or describe its scope or any
of its provisions.
11.6 Situs. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida. Venue shall he
located in Seminole County, Florida.
11.7 Benefits. This Agreement shall inure to the benefit of and be
binding upon the Parties hereto, their heirs, personal
representatives, successors and assigns.
11.8 Severability. If any provision of this Agreement shall be held to
be invalid or unenforceable, such invalidity or unenforceability
shall attach only to such provision and shall not in any way
affect or render invalid or unenforceable any other provision of
this Agreement, and this Agreement shall be carried out as if
such invalid or unenforceable provision were not contained
herein.
11.9 Arbitration. Except as to a monetary default by Company
hereunder, any controversy, dispute or claim arising out of or
relating to this Agreement or the breach thereof shall be settled
by arbitration. Arbitration proceedings shall be conducted in
accordance with the rules then prevailing of the American
Arbitration Association or any successor. The award of the
Arbitration shall be binding on the Parties. Judgment may he
entered upon an arbitration award of in a court of competent
jurisdiction and confirmed by such court. Venue for Arbitration
proceedings shall be Seminole County, Florida. The costs of
arbitration, reasonable attorneys' fees of the Parties, together
with all other expenses, shall be paid as provided in the
Arbitration award.
11.10 Currency. In all instances, references to monies used in this
Agreement shall be deemed to be United States dollars.
11.11 Multiple Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an
original, and all of such counterparts shall constitute one (1)
instrument.
12. This Agreement may he executed in counterparts and by fax
transmission, each counterpart being deemed an original.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the day and year
first above written.
CONFIRMED AND AGREED ON THIS 13th DAY OF September 2001.
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MADISON & WALL WORLDWIDE, INC.
By: /s/ Xxxxx Xxxxx /s/ Xxxx X. Xxxxx
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M&W Representative M&W Officer
Xxxxx Xxxxx Xxxx X. Xxxxx
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Print Name Print Name
CONFIRMED AND AGREED ON THIS 13th DAY OF SEPT. 2001
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BRIGHTCUBE, INC.
By: /s/ Xxxxxx Xxxxx /s/ Xxxx Xxxxxx
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Duly Authorized Witness
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Xxxxxx Xxxxx Xxxx Xxxxxx
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Print Name Print Name
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