EXHIBIT 4.3
FINANCIAL PUBLIC RELATIONS AGREEMENT
WITNESSETH
THIS AGREEMENT, made this 1st day of August 1996, by and between Tom
Arrigoni, (hereinafter "Arrigoni") 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, is a publicly held corporation, and desires to retain
the services of ARRIGONI 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, ARRIGONI will provide such professional services for the
consideration as stated herein;
NOW THEREFORE, the parties hereby agree as follows:
1. RETENTION: CLIENT retains ARRIGONI 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 releases, 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 agreeded upon in
order to maintain an active interest and market in CLIENT'S stock.
ARRIGONI'S services will be performed at his facilities and at such
other place as are appropriate and necessary for ARRIGONI to perform his duties
hereunder.
2. TERM OF AGREEMENT: ARRIGONI'S services shall be available to CLIENT
for a Five (5) years period commencing on the effective date of this agreement.
3. COMPENSATION: For work to be performed by ARRIGONI under this
Agreement, CLIENT will pay ARRIGONI a fee as follows:
CLIENT agrees to pay $ 10,000 per month during the term of this
Agreement. In addition, CLIENT agrees to issue Two Million Five Hundred
(2,500,000) Shares, to be issued in the following manner: 1.3 million shares
immediatley and 1.2 million shares 30 days from the date of this Agreement, such
shares will be registered via an S-8 filing with the Securities and Exchange
Commission immediately by CLIENT.
4. EXPENSES: ARRIGONI 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,
art and Photographic services, mechanical, printing, duplication and
reproduction costs, advertising costs, messenger and delivery services,
telephone toll charges, fax, postage, newswire, 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
Clients approval of such project and 50% upon material completion.
5. PAYMENT: Client agrees to pay all fees and costs within ten (10)
days from receipt of all billings by ARRIGONI. 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.
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 ARRIGONI 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 duty 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 will full power and authority (corporate or 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, suits or proceedings 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 coverdy 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 ARRIGONI, or any
extension thereof, the CLIENT will deliver to ARRIGONI copies of each annual,
quarterly and other reports and documents which the CLIENT shall timely present
to its security holders an/or file with 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 AND 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 and Poors. As such listings are applicable to CLIENT'S
ability to trade its stock and comply with Blue Sky State requirements.
16. OPINION OF COUNSEL: At ARRIGONI'S option, ARRIGONI may request a
comfort letter from CLIENT'S counsel during the term of this Agreement.
17. ACCOUNTANT'S LETTER: The CLIENT shall furnish to ARRIGONI 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 ARRIGONI'S option, ARRIGONI 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 ARRIGONI harmless from and against any in respect of any liability,
damage, loss or expense to ARRIGONI resulting from (a) the inaccuracy or
omission of any information, representation or warranty made to ARRIGONI and/or
contained in any materials distributed and/or advertised to the public and/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. ARRIGONI, for good and valuable
consideration hereby agrees to indemnify CLIENT from and against and in respect
of any misrepresentations made by ARRIGONI 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 ARRIGONI in the
performance of his duties under this Agreement.
TERMINATION
19. TERMINATION BECAUSE OF NON-COMPLIANCE: This Agreement may be
terminated by ARRIGONI 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 ARRIGONI in writing.
20. TERMINATION OF AGREEMENT: In the event that ARRIGONI 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 ARRIGONI will be deemed earned
and for services already performed. The CLIENT shall pay immediately for all
unreimbursed charges, costs and expenses paid or incurred by ARRIGONI 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
ARRIGONI 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 ARRIGONI.
Further, ARRIGONI and CLIENT each understand that it shall be ARRIGONI'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.
ARRIGONI 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, ARRIGONI 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 ARRIGONI'S
duties, it is expected that ARRIGONI will receive information which may be
considered material inside information. ARRIGONI will not disclose that
information to others except as authorized by CLIENT and necessary in order for
ARRIGONI to perform his duties and comply with such Federal, State and Municipal
laws, rules and regulations or other regulatory body. ARRIGONI agrees to the
following definitions:
a) ARRIGONI shall only distribute materials that have been
approved by CLIENT prior to distribution.
b) ARRIGONI may employ sub-contractors to assist in his
duties, however, ARRIGONI will be held responsible for all materials
distributed.
c) ARRIGONI hereby agrees that he or his sub-contractors will
not distribute misleading information, make false statements or in any was
deviate from standard practices as it relates to information distributed under
the laws and regulations of the United States or State Securities laws. ARRIGONI
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) ARRIGONI 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 ARRIGONI to perform his 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 ARRIGONI 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 ARRIGONI, his 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
ARRIGONI, his affiliates or associates. The CLIENT further acknowledges and
agrees that ARRIGONI, his 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
ARRIGONI, or his 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 anytime thereafter, ARRIGONI shall have all the rights and
remedies provided in this Agreement, any other writing executed by the parties,
and as may be provided and allowed in law. ARRIGONI shall not be deemed to have
waived any of his 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 ARRIGONI'S part in exercising any right shall
operate as a waiver of that 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 jursdiction 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 was, 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.
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TOM ARRIGONI
BY ITS
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NORTH AMERICAN RESORTS, INC.
BY ITS
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