Consulting Agreement - Zenascent Inc. and Investor Relations Services Inc.
CONSULTING AGREEMENT
THIS AGREEMENT is among ZENASCENT, INC., a corporation organized under
laws of the State of Delaware, whose address is 10 West 33rd Street, Suite 705,
New York, NY 10001 (hereinafter referred to as the "Company"); INVESTOR
RELATIONS SERVICES, INC., located at 120 Flagler Avenue, New Smyrna Beach, FL
32169 (hereinafter referred to as the "Consultant").
WHEREAS, the Consultant is in the business of assisting public
companies in financial advisory, strategic business planning, and investor and
public relations services designed to make the investing public knowledgeable
about the benefits of stock ownership in the Company; and
WHEREAS, the Consultant may, during the period of time covered by this
Agreement, present to the Company one or more plans of public and investor
relations to utilize other business entities to achieve the Company's goals of
making the investing public knowledgeable about the benefits of stock ownership
in the Company; and
WHEREAS, the Company recognizes that the Consultant is not in the
business of stock brokerage, investment advice, activities which require
registration under either the Securities Act of 1933 (hereinafter "the Act") or
the Securities and Exchange Act of 1934 (hereinafter "the Exchange Act"),
underwriting, banking, is not an insurance Company, nor does it offer services
to the Company which may require regulation under federal or state securities
laws; and
WHEREAS, the parties agree, after having a complete understanding of
the services desired and the services to be provided, that the Company desires
to retain Consultant to provide such assistance through its services for the
Company, and the Consultant is willing to provide such services to the Company;
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the receipt and sufficiency of which is hereby acknowledged,
the parties agree as follows:
1. DUTIES AND INVOLVEMENT.
The Company hereby engages Consultant to provide one or more plans, and
for coordination in executing the agreed-upon plan, for using various investor
and public relations services as agreed by both parties. The plan may include,
but not by way of limitation, the following services: consulting with the
Company's management concerning marketing surveys, investor accreditation,
availability to expand investor base, investor support, strategic business
planning, broker relations, conducting due diligence meetings, attendance at
conventions and
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trade shows, assistance in the preparation and dissemination of
press releases and stockholder communications, consulting of mergers with
companies, review and assistance in updating a business plan, review and advise
on the capital structure for the Company, propose legal counsel, assist in the
development of an acquisition profile and structure, recommend financing
alternatives and sources, and consult on corporate finance and/or investment
banking issues. In addition, these services may include production of a
corporate profile and fact sheets, personal consultant services, financial
analyst and newsletter campaigns, conferences, seminars and national tour,
including, but not by way of limitation, due diligence meetings, investor
conferences and institutional conferences, printed media advertising design,
newsletter production, broker solicitation campaigns, electronic public
relations campaigns, direct mail campaigns, placement in investment publications
and press releases. This agreement is limited to the United States. A further
description of the services which may be included in the plan as described above
is attached hereto as Exhibit A and included herein as if fully set out.
2. RELATIONSHIP AMONG THE PARTIES.
Consultant acknowledges that it is not an officer, director or agent of
the Company, it is not, and will not, be responsible for any management
decisions on behalf of the Company, and may not commit the Company to any
action. The Company represents that the consultant does not have, through stock
ownership or otherwise, the power neither to control the Company, nor to
exercise any dominating influences over its management.
Consultant understands and acknowledges that this Agreement shall not
create or imply any agency relationship among the parties, and Consultant will
not commit the Company in any manner except when a commitment has been
specifically authorized in writing by the Company. The Company and the
Consultant agree that the relationship among the parties shall be that of
independent contractor.
3. EFFECTIVE DATE, TERM AND TERMINATION.
This Agreement shall be effective on August 1, 2001 and will continue
until July 31, 2002. This one-year Agreement can only be modified if mutually
agreeable and in writing.
4. OPTION TO RENEW AND EXTEND.
Company may renew this Agreement on the same terms by providing written
notice to Consultant at any time prior to the expiration hereof.
5. COMPENSATION AND PAYMENT OF EXPENSES.
The Company agrees to pay a third party for Consultant's work in the
form of a
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convertible preferred Note or convertible preferred stock of the company as
total and complete consideration for the services to be provided by the
Consultant to the Company. Company shall have no other obligation to Consultant
for payment, excepting the obligation for additional compensation as contained
herein.
In the event that the Company extends this Consulting Agreement for
more than one year from the date of execution, the Consultant will be entitled
to additional compensation computed by multiplying a fraction, the numerator of
which shall be the number of additional days added to the Agreement and the
denominator of which will be 365 times the total compensation for the first
year. The additional compensation may be paid in stock to the Consultant. In the
event the Company uses stock to pay this amount, the value of the stock shall be
the bid price on the Effective Date.
Company agrees to pay for all costs and expenses incurred associated
with its employees' working with the Consultant and its representatives,
including lodging, meals, and travel as necessary. All other expenses, as
contained in Addendum A, for the fulfillment of this Agreement shall be borne by
the Consultant, and by third parties engaged by it in connection with the
performance of the financial and public relations services provided for herein.
6. SERVICES NOT EXCLUSIVE.
Consultant shall devote such of its time and effort necessary to the
discharge of its duties hereunder. The Company acknowledges that Consultant is
engaged in other business activities, and that it will continue such activities
during the term of this Agreement. Consultant shall not be restricted from
engaging in other business activities during the term of this Agreement.
7. CONFIDENTIALITY.
Consultant acknowledges that it may have access to confidential
information regarding the Company and its business. Consultant agrees that it
will not, during or subsequent to the term of this Agreement, divulge, furnish
or make accessible to any person (other than with the written permission of the
Company) any knowledge or information or plans of the Company with respect to
the Company or its business, including, but not by way of limitation, the
products of the Company, whether in the concept or development stage, or being
marketed by the Company on the effective date of this Agreement or during the
term hereof.
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8. COVENANT NOT TO COMPETE.
During the term of this Agreement, Consultant warrants, represents and
agrees that it will not directly participate in the information developed for
and by the Company, and will not compete directly with the Company in the
Company's primary industry or related fields.
9. INDEMNIFICATION.
Company agrees to indemnify and hold harmless the Consultant and its
respective agents and employees, against any losses, claims, damages or
liabilities, joint or several, to which either party, or any such other person,
may become subject, insofar as such losses, claims, damages or liabilities (or
actions, suits or proceedings in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact contained
in the registration statement, any preliminary prospectus, the prospectus, or
any amendment or supplement thereto; or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not misleading; and
will reimburse the Consultant, or any such other person, for any legal or other
expenses reasonably incurred by the Consultant, or any such other person, in
connection with investigation or defending any such loss, claim, damage,
liability, or action, suit or proceeding.
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10. MISCELLANEOUS PROVISIONS
Section a Time. Time is of the essence of this Agreement.
Section b Presumption. This Agreement or any section thereof shall not be
construed against any party due to the fact that said Agreement or any section
thereof was drafted by said party.
Section c Computation of Time. In computing any period of time pursuant to
this Agreement, the day of the act, event or default from which the designated
period of time begins to run shall be included, unless it is a Saturday, Sunday
or a legal holiday, in which event the period shall begin to run on the next day
which is not a Saturday, Sunday or a legal holiday, in which event the period
shall run until the end of the next day thereafter which is not a Saturday,
Sunday or legal holiday.
Section d Titles and Captions. All article, section and paragraph titles or
captions contained in this Agreement are for convenience only and shall not be
deemed part of the context nor affect the interpretation of this Agreement.
Section e Pronouns and Plurals. All pronouns and any variations thereof shall
be deemed to refer to the masculine, feminine, neuter, singular or plural as the
identity of the Person or Persons may require.
Section f Further Action. The parties hereto shall execute and deliver all
documents, provide all information and take or forbear from all such action as
may be necessary or appropriate to achieve the purposes of this Agreement.
Section g Good Faith, Cooperation and Due Diligence. The parties hereto
covenant, warrant and represent to each other good faith, complete cooperation,
due diligence and honesty in fact in the performance of all obligations of the
parties pursuant to this Agreement. All promises and covenants are mutual and
dependent.
Section h Savings Clause. If any provision of this Agreement, or the
application of such provision to any person or circumstance, shall be held
invalid, the remainder of this Agreement, or the application of such provision
to persons or circumstances other than those as to which it is held invalid,
shall not be affected thereby.
Section i Assignment. This Agreement may not be assigned by either party
hereto without the written consent of the other, but shall be binding upon the
successors of the parties.
Section j Arbitration.
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i. If a dispute arises out of or relates to this Agreement, or the
breach thereof, and if said dispute cannot be settled through direct discussion,
the parties agree to first endeavor to settle the dispute in an amicable manner
by mediation under the Commercial Mediation Rules of the American Arbitration
Association before resorting to arbitration. Thereafter, any unresolved
controversy or claim arising out of or relating to this Agreement or a breach
thereof shall be settled by arbitration in accordance with the rules of the
American Arbitration Association, and judgment upon the award rendered by the
Arbitrator may be entered in any court having jurisdiction thereof.
ii. Any provisional remedy, which would be available from a court of
law, shall be available to the parties to this Agreement from the Arbitrator
pending arbitration.
iii. The situs of the arbitration shall be Volusia County, Florida.
iv. In the event that a dispute results in arbitration, the parties
agree that the prevailing party shall be entitled to reasonable attorney's fees
to be fixed by the arbitrator.
Section k Notices. All notices required or permitted to be given under this
Agreement shall be given in writing and shall be delivered, either personally or
by express delivery service, to the party to be notified. Notice to each party
shall be deemed to have been duly given upon delivery, personally or by courier
(such as Federal Express or similar express delivery service), addressed to the
attention of the officer at the address set forth heretofore, or to such other
officer or addresses as either party may designate, upon at least ten (10) days'
written notice, to the other party.
Section l Governing law. The Agreement shall be construed by and enforced in
accordance with the laws of the State of Florida.
Section m Entire agreement. This Agreement contains the entire understanding
and agreement among the parties. There are no other agreements, conditions or
representations, oral or written, express or implied, with regard thereto. This
Agreement may be amended only in writing signed by all parties.
Section n Waiver. A delay or failure by any party to exercise a right under
this Agreement, or a partial or single exercise of that right, shall not
constitute a waiver of that or any other right.
Section o Counterparts. This Agreement may be executed in duplicate
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same Agreement. In the event that the
document is signed by one party and faxed to another the parties agree that a
faxed signature shall be binding upon the parties to this agreement as though
the signature was an original.
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Section p Successors. The provisions of this Agreement shall be binding upon
all parties, their successors and assigns.
Section q Counsel. The parties expressly acknowledge that each has been
advised to seek separate counsel for advice in this matter and has been given a
reasonable opportunity to do so.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement to be effective as of the day and year provided herein.
COMPANY: CONSULTANT:
ZENASCENT, INC. INVESTOR RELATIONS SERVICES, INC.
By: By:
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Steven Angel, President Richard J. Fixaris, President & CEO
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ADDENDUM A
CORPORATE PROFILE AND FACT SHEET
A two-page, two color broker fact sheet, and a four-page, full color
Company profile will be created, each highlighting the Company and the benefits
of owning the Company's stock. These pieces are included in broker/dealer
information packages for dissemination to prospective investors, and may also be
targeted to stock analysts and newsletter editors. Consultant's services include
creative writing, artwork, layout and design and printing. Materials updated
four times per year, as applicable.
PERSONAL CONSULTANT SERVICES
A Personal Consultant will supervise and actively assist in every facet
of the Company's overall marketing campaign. In addition to coordinating all
above-listed services, the Personal Consultant will maintain daily contact with
investor relations office staff, Company officers and active brokers; he will be
available for consultation 24 hours per day, every day, via cellular telephone,
to address urgent needs as well as general strategic planning. The Personal
Consultant will travel extensively to meet qualified brokers one-on-one, and
will arrange specially scheduled conference calls with audiences of brokers,
analysts and money managers. The Personal Consultant will personally arrange
invitation-only due diligence broker meetings, and will directly supervise all
logistics and follow-up. The Consultant will pay the cost of the Personal
Consultant.
BROKER SOLICITATION CAMPAIGN
Specialized professional financing public relations services will be
provided through an ongoing telemarketing campaign soliciting new broker
dealers, to generate interest in the Company and its stock. This campaign will
include direct personal telephone follow-up with retail brokers in active
contact with Company executives and investor relation's staff. Supervised
in-house personnel will be assigned specifically to guide Company interactions
with brokers and field representatives.
PRESS RELEASES
Company press releases will be written and disseminated to news wire
services. Press releases will also be disseminated to the at-large broker
community by fax and mail, plus telephone and fax follow-up with 500-1,000
active brokers. Press releases may be reproduced in national financial magazines
such as Investor's Business Daily, Barron's.
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PRINT MEDIA ADVERTISING
An advertisement, targeted to both brokers and investors, will be
created and inserted in a major financial and investment magazine or newspaper
at the Consultants cost. Publications which target and deliver large numbers of
active brokers, qualified investors and other niche groups interested
specifically in the Company's product or industry category will be emphasized.
Consultant's services include creative writing, artwork, layout and design, and
coordination of magazine/newspaper inserts.
FINANCIAL ANALYST AND NEWSLETTER CAMPAIGN
The Financial Analyst and Newsletter Campaign will be intertwined with
our Broker Solicitation Campaign, which provides an essential link to increasing
investor awareness for the Company. Each Company is presented to our carefully
developed network of financial analysts and newsletter publications that
specialize in identifying emerging growth companies and presenting buy
recommendations to their loyal following of investors. Utilization of direct
mail pieces, e-mail, broadcast faxing and phone contacts will ensure effective
and prompt coverage for our clientele. In order to best expose the Company, this
campaign may include personal meetings with editors, analysts and writers for a
number of publications and research houses nationwide.
CONFERENCES, SEMINARS AND NATIONAL TOURS
DUE DILIGENCE MEETINGS: Opportunities for Company exposure before
broker/dealer audiences will be provided in New York, Boston, Chicago, Atlanta,
Orlando, Boca Raton, Denver, San Francisco, southern California and other major
metro areas. Consultant's services include overall meeting coordination and
implementation; room rental, catering (hot and cold hor d'oeuvres and snacks),
alcoholic and non-alcoholic beverages, broker/dealer invitations (printing, mail
coordination, postage and telephone contact), transportation (coach air fare and
hotel accommodations, as applicable), additional broker meetings and telephone
follow-up.
INVESTOR CONFERENCES: Opportunities for Company exposure before large
audiences of qualified, wealthy investors will be provided in various locations
across North America. These conferences provide executives of participating
companies with unique forums for sharing the spotlight with top financial and
investment experts while making personal contact with wealthy investors and
presenting the benefits of the companies. The most popular package for
conference participants includes an exhibit booth, private workshop, broker
presentation and distribution of collateral materials. Among the most popular
and established conferences are those produced by Blanchard's Investment
Conferences, Financial Fest, and Discovery Expo.
INSTITUTIONAL CONFERENCES: Opportunities for Company exposure before
representatives
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of major financial institutions may be arranged for any of the following
conferences: North American Corporate Forum, Westergaard Waldorf Conference
Series, Boston Stockholders Club, Hartford Stockholders Club, Equities
Conferences and Investment Research Institute. The conferences sponsored by the
North American Corporate Forum and Westergaard Waldorf Conference Series are
three-day events held in New York, designed to allow participating companies to
meet and consult with Investment analysts and portfolio managers representing
all primary investment centers in the United States and Canada.
ELECTRONIC MEDIA
A coordinated mix of financial and investment radio and television
programming, covering major markets across the United States and designed to
serve as Company marketing and lead generation conduits, will be arranged. The
Company may be featured on talk shows, special interview segments and
commercials. Program duplicates may be distributed to select brokers and
investors to heighten Company awareness.
DIRECT MAIL CAMPAIGN
A four-page, full color direct mail lead generation piece, highlighting
the Company and the benefits of owning the Company's stock, will be created.
This lead generator will be mailed to 100,000 selected, qualified investors, in
one large mailing or in smaller increments. Printed on heavy gloss stock, the
piece includes a postage-paid business reply card, plus an identifying telephone
number enabling investors to respond immediately. Additionally, market makers
names and phone numbers may be listed directly on the mailing piece for all-in
lead generation. The piece includes a postage-paid business reply card, plus an
identifying telephone number enabling investors to respond immediately.
Consultant's services include creative writing, artwork, layout and design,
printing, list rentals, mail handling, postage and business reply card
coordination.
INVESTMENT PUBLICATIONS
Bull & Bear is a tabloid-style newspaper distributed six to nine times
per year to approximately 60,000 active investors in the United States and
Canada.
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