FINANCIAL PUBLIC RELATIONS AGREEMENT
WITNESSETH
THIS AGREEMENT, made this 19th day of July 1996, by and between TOBY
INVESTMENT GROUP, having his principal office at 248 State Highway 79,
Wickatunk, N.J. 07765-0037 (hereinafter "TOBY") and NORTH AMERICAN RESORTS,
INC., located at 315 East Robinson Street, S-190, Orlando, Florida 32801,
Telephone (407) 841-1917 (hereinafter referred to as ("CLIENT").
WHEREAS, the CLIENT, a publicly held corporation, desires to retain the
services of TOBY to advise and assist it in its ongoing financial public
relations, which the CLIENT recognizes as requiring time and constant
attention to develop and sustain the attention and interest of shareholders
and other members of the investment and financial community; and
WHEREAS, TOBY will provide such professional services for the consideration
as stated herein;
NOW THEREFORE, the parties hereby agree as follows:
1. RETENTION: CLIENT retains TOBY to advise and assist it in its ongoing
financial public relations, which the CLIENT recognizes as requiring time and
constant diligence to develop and sustain the attention and interest of
shareholders and other members of the investment and financial community.
Such services would include, as necessary and authorized by the CLIENT:
a) press relations, releases and conferences;
b) financial advertising;
c) fact sheets and brochures prepared and distributed;
d) contacts to attract both individual and institutional investors;
e) distribution of the CLIENT'S annual, quarterly and other reports;
f) such other activities and promotions as shall be agreed upon in
order to maintain an active interest and market in the CLIENT'S
stock.
TOBY'S services will be performed at his facilities and at such other place
as are appropriate and necessary for TOBY to perform its duties hereunder.
2. TERM OF AGREEMENT: TOBY'S services shall be available to CLIENT for a One
(1) year period commencing on the effective date of this agreement.
3. COMPENSATION: For work to be performed by TOBY under this Agreement,
CLIENT will pay TOBY a fee as follows:
TOBY agrees to receive payment via the CLIENTS free trading shares or cash,
at CLIENTS option. In addition, TOBY will will accept payment via free
trading shares for expenses as stated in paragraph 4 and specifically for
work desired and if CLIENT so desires, TOBY will perform additional
advertising, design, printing and other services for additional shares.
4. EXPENSES: TOBY will be solely responsible for all costs, expenses and
out-of-pocket disbursements incurred on behalf of the CLIENT, which include,
but are not limited to, travel and hotel costs, copywriting, layout,
messenger and delivery services, telephone toll charges, fax, on-line
computer news services and any other necessary and incidental expenses. All
non-project single item expenses over $200.00 will be submitted to CLIENT in
advance for approval. All project expenses will be presented to CLIENT for
approval in advance of beginning such projects. All such project expenses are
payable by 50% upon CLIENT'S approval of such project and 50% upon material
completion.
5. PAYMENT: CLIENT agrees to issue 100,000 Convertible Preferred Shares and
CLIENT agrees to immediately file an S-8 with the Securities and Exchange
Commission to register the shares. CLIENT agrees to pay all fees and costs
within ten (10) days from receipt of all billings by TOBY. Any payment due
hereunder that is not paid as provided for herein shall incur a one and
one-half (1-1/2 %) percent per month late fee. 50,000 Preferred Shares are to
be issued immediately and 50,000 within 30 days.
REPRESENTATIONS AND WARRANTIES OF CLIENT
6. REQUIRED REPORTING: The CLIENT will prepare and file all required reports
with the Securities and Exchange Commission (the "SEC") and such other
necessary and appropriate agencies, and are in conformity with the
requirements of the Securities Act of 1933, as amended (the "ACT") and the
rules and regulations ("Rules and Regulations") promulgated thereunder, and
CLIENT shall deliver to TOBY and such documents and additional amendments
thereto that it shall file, including, but not limited to all amendments,
10K's, 10Q's, 8K's and all other material reports and letters filed with the
SEC and the NASD.
7. ACCURACY OF REPORTS: The SEC has not issued any order preventing or
suspending the sale of the CLIENT'S Common Stock. CLIENT represents that each
filing/report has conformed in all material respects with the requirements of
the Act and the applicable rules and regulations promulgated thereunder and
to the best of the CLIENT'S knowledge has not and will not include any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein not misleading.
8. NO DEFAULTS: The CLIENT is not in any default which has not been waived in
the performance of any obligation, agreement or condition contained in any
security, note or the consummation of the transactions herein contemplated,
and compliance with the terms of this Agreement will not conflict with or
result in a breach of any of the terms, conditions or provisions of, or
constitute a default under, the Articles of Incorporation, as amended, or
By-Laws of the CLIENT, any note, indenture, mortgage, deed of trust, or other
agreement or instrument to which the CLIENT is a party or by which it or any
of its property is bound, or any existing law, order, rule, regulation, writ,
injunction, or decree of any government, governmental instrumentality, agency
or body, arbitration tribunal or court, domestic or foreign, having
jurisdiction over the CLIENT or its property. The consent, approval,
authorization, or order of any court or governmental instrumentality, agency
or body is not required for the consummation of the transactions herein
contemplated.
9. INCORPORATION AND STANDING: The CLIENT is duly incorporated, validly
existing and in good standing under the laws of the state or country of its
incorporation with authorized and outstanding capital stock as set forth in
its SEC filings, and with full power and authority (corporate and other) to
own its property and conduct its business, present and proposed, as described
in its SEC filings; the CLIENT has full power and authority to enter into
this Agreement; and the CLIENT is duly qualified and in good standing as a
foreign corporation in each jurisdiction in which it owns or leases real
property or transacts business requiring such qualifications, if any.
10. LEGALITY OF COMMON STOCK: The outstanding Common Stock of the CLIENT has
been duly and validly authorized and issued and is fully paid and
non-assessable and will conform to all statements with regard thereto
contained in its SEC filings. No sales of securities have been made by the
CLIENT in violation of the registration provisions of the Securities Act of
1933, as amended. Any Common Stock Purchase Warrants have been duly and
validly authorized and, when sold and delivered, will constitute valid and
binding obligations of the CLIENT enforceable in accordance with the terms
thereof and will conform to all statements with regard thereto contained in
any of its SEC filings.
11. LITIGATION: Except as set forth in CLIENT'S SEC filings, there is and
shall be no actions, suit or proceeding before any court or governmental
agency, authority or body pending or to the knowledge of the CLIENT
threatened which might result in judgments against the CLIENT not adequately
covered by insurance or which collectively might result in judgments against
the CLIENT not adequately covered by insurance or which collectively might
result in any material adverse change in the condition (financial or
otherwise) of the business or the prospect of the CLIENT, or would materially
affect the properties or assets of the CLIENT.
12. WARRANTY THAT AGREEMENT DOES NOT CONTEMPLATE CORRUPT PRACTICES: CLIENT
represents and warrants that all payments and authorizations under this
Agreement constitute compensation for services performed or to be performed
and do not constitute an offer, payment, promise or authorization for payment
of any money or gift to any official or other person to influence any act or
decision of an official or person to induce such official or person to affect
or influence any act or decision in favor of the CLIENT.
COVENANTS OF THE CLIENT
13. FINANCIAL STATEMENTS: The CLIENT, at its own expense will prepare, file
and update such financial statements and other information as may be required
by the SEC or states in which the sale of the CLIENT'S Common Stock may be
qualified. During the one (1) year retention period of TOBY, or any extension
thereof, the CLIENT will deliver to TOBY copies of each annual, quarterly and
other reports and documents which the CLIENT shall timely present to its
security holders and/or file the SEC and other state governmental authority,
within thirty (30) days of the preparation and submission of such documents
and reports.
14. COMPLIANCE WITH APPLICABLE LAWS: The CLIENT has complied and will
continue to comply with all applicable laws, statutes, rules, regulations and
orders relating to the operation of its business and the issuance, sale and
market of its securities, which the failure to comply with would result in a
material adverse effect on CLIENT'S business or financial condition.
15. APPLICATION TO MOODY'S, STANDARD & POORS, NASD, NASDAQ: The CLIENT shall
maintain all its current listings on the NASD Bulletin Board or NASDAQ
automated quotation system. The CLIENT also agrees to be listed with Moody's
and Standard & Poors. As such listings are applicable to CLIENTS ability to
trade its stock and comply with blue sky state requirements.
16. OPINION OF COUNSEL: At TOBY'S option, TOBY may request a comfort letter
from CLIENT'S counsel during the term of this Agreement.
17. ACCOUNTANT'S LETTER: The CLIENT shall furnish to TOBY a copy of the
opinion and audited financial statements rendered to the CLIENT and submitted
to the SEC by its retained independent public accountant concerning the
examination of the CLIENT'S financial statements and opinion as to their
compliance with applicable accounting requirements of the Act and the Rules
and Regulations promulgated thereunder and with generally accepted accounting
principles, and that such financial statement present fairly the financial
position of the CLIENT. At TOBY'S option, TOBY may request a comfort letter
from CLIENT'S accountant during the term of this Agreement.
18. INDEMNIFICATION: The CLIENT, for good and valuable consideration the
receipt of which is hereby acknowledged, undertakes and agrees to indemnify
and hold TOBY harmless from and against and in respect of any liability,
damage, loss or expense to TOBY resulting from (a) the inaccuracy or omission
of any information, representation or warranty made to TOBY and/or contained
in any materials distributed and/or advertised to the public an/or filed with
any governmental or regulatory authority or agency; (b) any inaccuracy or
omission in the financial statements, documents or materials of the CLIENT
required to be filed with any governmental or regulatory authority or agency
and/or distributed to the public and of shareholder interest; (c) any failure
of the CLIENT to discharge any duty or perform any obligation required of it
under (i) any rules, statutes and regulations enacted and/or enforced by any
governmental or regulatory authority or agency, (ii) any representation,
undertaking or warranty set forth in any document or materials distributed to
the public and/or filed with any governmental or regulatory authority or
agency, (iii) any contract incident to the CLIENT conducting its current or
proposed business activity; or (d) any violation by the CLIENT of any
federal, state or local law, ordinance, regulation or order. TOBY, for good
and valuable consideration hereby agrees to indemnify CLIENT from and against
and in respect of any misrepresentations made by TOBY in representing CLIENT,
unauthorized or unlawful use of confidential CLIENT information obtained
during the course of this Agreement, or any willful misconduct or gross
negligence of TOBY in the performance of its duties under this Agreement.
TERMINATION
19. TERMINATION BECAUSE OF NON-COMPLIANCE: This Agreement may be terminated
by TOBY by notice to the CLIENT in the event that the CLIENT shall have
failed or been unable to comply with any of the terms, conditions or
provisions of this Agreement on the part of the CLIENT to be performed,
completed with or fulfilled within the respective times herein provided for,
unless compliance therewith or performance or satisfaction thereof shall have
been expressly waived by TOBY in writing.
20. TERMINATION OF AGREEMENT: In the event that TOBY should withdraw from
retention by the CLIENT, any sums that have become due in accordance with
this Agreement but have not been paid at the time of withdrawal will be
deemed to be for services already rendered and shall be paid immediately by
the CLIENT, any sums that have been paid to TOBY will be deemed earned and
for services already performed. The CLIENT shall pay immediately for all
unreimbursed changes, costs and expenses paid or incurred by TOBY prior to
the time of withdrawal. If such termination is for non-payment, CLIENT agrees
to pay all legal and other collection fees with appropriate interest.
MISCELLANEOUS
21. NON-AFFILIATION: Nothing herein shall be construed as creating a
relationship of employer-employee, partners, joint ventures or other such or
similar relationship between the parties hereto. The parties intend that TOBY
will be an independent contractor and not an employee of CLIENT. Therefore,
none of the benefits that may be provided by CLIENT to its employees,
including but not limited to workers' compensation insurance, unemployment
insurance or fringe benefits, shall be available from CLIENT to TOBY.
Further, TOBY and CLIENT each understand that it shall be TOBY'S
responsibility to provide for all unemployment and other taxes, including
withholding and social security, and all estimated taxes, business licenses
and insurance (including but not limited to workers' compensation insurance
and public liability insurance) arising out of or relating to this Agreement.
TOBY hereby assumes all risks, burdens and liabilities associated with his
status as an independent contractor, including and not limited to liability
to their parties for the acts of his employees and agents which buy for this
status might otherwise be attributable to CLIENT and/or covered by CLIENT'S
insurance carriers. In furtherance of the foregoing, TOBY agrees that he will
not assets or claim that he is not an independent contractor, and will in
good faith defend his status as such.
22. CONFIDENTIALITY: In the course of the performance of TOBY'S duties, it is
expected that TOBY will receive information which may be considered material
inside information. TOBY will not disclose that information to others except
as authorized by CLIENT and necessary in order for TOBY to perform its duties
and comply with such federal, state and municipal laws, rules and regulations
or other regulatory body. TOBY agrees to the following definitions:
A) TOBY shall only distribute materials that have been approved by CLIENT
prior to distribution.
B) TOBY may employ sub-contractors to assist in his duties, however, TOBY
will be held responsible for all materials distributed.
C) TOBY hereby agrees that he or his sub-contractors will not distribute
misleading information, make false statements or in any way deviate from
standard practices as it relates to information distributed under the laws
and regulations of the United States or state securities laws. TOBY hereby
represents that he is familiar with the laws, rules and regulations and will
conduct his efforts within the guidelines of those rules and laws.
D) TOBY understands and agrees that any deviation from the accepted practices
as it relates to promotion for a public company, and misrepresentation or
mailing of false or misleading information regarding CLIENT will be grounds
for immediate termination of this Agreement.
23. COOPERATION, DILIGENCE, DISCLOSURE AND DISCLAIMER OR WARRANTY: The CLIENT
acknowledges and agrees that a great deal of time, cooperation, diligence and
disclosure is necessary in order for TOBY to perform its duties as
contemplated herein. The CLIENT acknowledges and agrees that no
representation or warranty concerning the successful outcome of any proposal
or recommendation is or can be made. CLIENT acknowledges and understands that
this is expressly true when approval of a governmental or regulatory
authority or agency is needed in order for CLIENT to effect a proposed course
of business which includes the possible intervention and institution by any
governmental or regulatory authority or agency of any proceedings into the
activities of the CLIENT or its principals. All statements of TOBY concerning
any and all matters contemplated herein are statements of opinion only.
24. WARRANTY THAT AGREEMENT DOES NOT CONTEMPLATE ACTS OF A FINDER,
UNDERWRITER, BROKER, DEALER OR PROMOTER. The CLIENT acknowledges and agrees
that no representations or warranty has been made by TOBY, associates,
affiliates or any other person as to the successful outcome of any media,
financial plan, private or public financing or other business plans put forth
by TOBY, its affiliates or associates. The CLIENT further acknowledges and
agrees that TOBY, its affiliates and/or associates have not, and will not act
or be considered to act as a finder, underwriter, broker, dealer or promoter
of any of the CLIENT'S securities, either in private or public transactions.
CLIENT represents and warrants that all payments and authorizations under
this Agreement constitute compensation for services performed or to be
performed and do not constitute an offer, payment, promise or authorization
for payment to TOBY, or its affiliates and/or associates to act as a finder,
underwriter, broker, dealer or promoter of any of the CLIENT'S securities.
25. RIGHTS AND REMEDIES UPON DEFAULT: Upon the occurrence of any event of
default, and any time thereafter. TOBY shall have all the rights and remedies
provided in this Agreement, and any other writing executed by the parties,
and as may be provided and allowed in law. TOBY shall not be deemed to have
waived any of its rights and remedies unless such waiver is in writing and
signed by the parties hereto. A waiver of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent
breach. No delay or omission on TOBY'S part in exercising any right shall
operate as a waiver of that right or any other right.
26. ENTIRE UNDERSTANDING: This Agreement contains the entire understanding
between the parties and may not be modified except in writing and signed by
the parties hereto.
27. NOTICES: All notices required under this Agreement shall be sent by
registered or certified mail, return receipt requested, addressed as set
forth herein or to such other address as the parties may have notice.
28. GOVERNING LAW: This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida and to which jurisdiction
the parties hereto consent for the adjudication of all disputes.
29. SEVERABILITY: If any provision of this Agreement is held to be invalid,
illegal, or unenforceable, then only that portion is void and shall not
affect or impair, in any way, the validity, legality, or enforceability of
the remainder of this Agreement.
30. COUNTERPARTS: This Agreement may be executed in any number of
counterparts, each of which may be deemed an original and all of which
together will constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement in duplicate to
be effective as of the date first above written.
/s/ Barry Feck
TOBY INVESTMENT GROUP
By its General Partner
/s/ Brian A. Nelson
NORTH AMERICAN RESORTS, INC.
By its President
CLIENT Initial ______