Exhibit 10.9
PUBLIC RELATIONS / INVESTOR RELATIONS
CONSULTING AGREEMENT
This Public Relations/Investor Relations Consulting Agreement, made as of this
23rd day pf September, 1999, by and between TALK STOCK WITH ME INC., a
California corporati/oon having its principal office located at 1875 Century
Park East, Suite 150, Century City, CA 90067 (hereinafter referred to as the
OConsultantO) and Cathay Online, Inc., a N a corporation having its principal
office located at Suite #302 N593 Granville Street Vene~uw~, BCV~ 1~&(the
OCOMPANYO). ~.dc.too~, (ea.s+ ui 4, tc~oi~. Recitals
WHEREAS, the COMPANY, a public COMPANY, requires public relations/investor
relations services and assistance and desires to employ Consultant, as an
independent contractor Consultant, to provide such services, and Consultant is
agreeable to such employment, and the parties desire a written document
formalizing their relationship and evidencing the terms of their agreement;
Agreement
NOW, THEREFORE, intending to be legally bound and in consideration of the
mutual promises and covenants, the parties have agreed as follows:
1. Appointment. The COMPANY hereby retains the Consultant as its non-exclusive
public relations/investor relations counsel and hereby retains and employs
Consultant, on the terms and conditions of this Agreement. The Consultant
accepts such appointment and agrees to perform the services in accordance
with the terms and conditions of this Agreement.
2. Term. The term of this Agreement shall begin on September 23, 1999 and
shall terminate on September 23, 2000.
3. Services
(a) Consultant shall act, generally, as a non-exclusive public
relations/investor relations counsel essentially, acting
(1) as a liaison between the COMPANY and its stockholders
(2) as an advisor to the COMPANY with respect to existing and
potential market makers, broker-dealers, underwriters, and
investors as well as being a liaison between the COMPANY and such
persons; and
(3) as an advisor to the COMPANY with respect to communications and
information (e.g., interviews, pre recorded or live conferences,
COMPANY information on talk-stock.com etc.) As well as planning,
designing, developing, organizing, writing and distributing such
communications and information as the COMPANY may request or
direct. (Press releases, content and distribution are the
exclusive responsibility of the COMPANY.)
(b) As the COMPANY shall request or direct, Consultant shall assist in
establishing, and advise the COMPANY with respect to: shareholder
meetings, interviews of COMPANY officers by analysts, market makers,
broker-dealers, end other members of the financial community, in the
United States and/or Canada and/orEurope.
(c) Consultant shall seek to make the COMPANY, its management, its
products, and its financial situation and prospects, known to the
financial press and publications, broker-dealers, and other members of
the financial community, in the United States and/or Canada and/or
Europe.
(d) As the COMPANY shall request or direct, Consultant shall act,
generally as a public relations/investor relations counsel or to the
COMPANY, including:
(1) introducing the COMPANY to broker-dealers, market makers, banks,
financial advisors, financial institutions and potential
investors, in the United States and/or Canada and/or Europe;
(2) Arrange interviews and analyst meetings, and securing invitation
of the COMPANY to appropriate conferences and business events,
and similar public relations/investor relations events.
(3) Internet: Online Broadcast special target, Online Broadcast (pre
event - to email list created by targeted broadcast), Online
Conference setup & design, Online Conference, (approximately two
2 per month) Online Investor Chatroom (setup & design), Online
Investor Chatroozn (hosting).
(e) The initial services to be rendered by Consultant, at COMPANTS
expense, shall be: per Venue Description, Schedule OAO
(1) Broker and investor introductions to COMPANY via internet;
(2) the fulfillment and distribution of leads generated by promotions
throughout the broker network derived through internet venues;
(3) conference dialogue (chat) with brokers and investors as
prescribed in (d); [1], (2], and [3], shall be mutually agreed
upon by both Consultant and the COMPANY. The funds required to
fulfill these obligations are to be expended out and mutually
agreed upon by both Consultant and the COMPANY prior to
expenditure.
4. Umitations on Services. The parties recognize that certain responsibilities
and obligations are imposed by both U.S. and foreign securities laws as
well as by the applicable rules and reguLations of the NASD, In-house Odue
diligenceO or OcomplianceO departments of brokerage houses, etc.
Accordingly, Consultant agrees:
(a) Consultant shall NOT release any financial or other information or
data about the COMPANY without the consent and approval of the
COMPANY.
(b) Consultant shall NOT conduct any meeting with financial analyst
without informing the COMPANY in advance of the proposed meeting and
the format or agenda of such meeting and the COMPANY may elect to have
a representative of the COMPANY attend at such meeting.
(c) Consultant shall NOT release any information or data about the COMPANY
to any selected or limited person(s), entity, or group If the
Consultant is aware that such information or data has not been
generally released or promulgated.
(d) After notice by the COMPANY of filing for a proposed public offering
of securities of the COMPANY, and during any period of restriction on
publicity, the Consultant shall not engage in any public relations
efforts not in the normal course without approval of counsel for the
Consultant and of counsel for the underwriter(s), if any.
(e) The Consultant shall NOT take any action or advise or knowingly permit
the COMPANY to take any action, which would violate any domestic or
foreign securities, laws or rules and regulations issued thereunder.
5. Duties of COMPANY.
(a) The COMPANY shall supply Consultant, on a regular and timely basis,
with all approved data and information about the COMPANY, Its
management, its products, and its operations and the COMPANY shall be
responsible for advising Consultant of any facts which would affect
the accuracy. of any prior data and information previously supplied
Oto Consultant so that Consultant may take corrective action.
(b) The COMPANY shall, from time to time as applicable, promptly supply
Consultant:
(1) . with full and complete copies of any and all filings with the
Securities and Exchange Commission and all foreign securities
agencies;
(2) with full and complete copies of all filings with any stock
exchanges; (3) with full end complete copies of all shareholder
reports and communications whether or not prepared with
CONSULTANTOS assistance; (4) with all data and information
supplied to any analyst, broker-dealer, market maker, or other
member of the financial community; and (5) with all
product/services brochures, sales materials, etc.
(c) The COMPANY shall promptly notify Consultant of any event which
triggers any restrictions on publicity, together with a statement
as to the countries, included within the publicity restriction
requirements.
(d) The COMPANY shall, contemporaneously with supplying information
or data to Consultant, notify Consultant if any information or
data being supplied to Consultant has not been generally released
or promulgated.
6. Representation and Indemnification:
(a) The COMPANY shall be deemed to make a continuing representation of the
accuracy of any and all material facts, material information, and
material data which it supplies to Consultant and the COMPANY
acknowledges its awareness that Consultant will rely on such
continuing representation in disseminating such information and
otherwise performing their public relations functions.
(b) Consultant, in the absence of notice in writing from COMPANY, will
rely on the continuing accuracy of material, information, and data
supplied by the COMPANY.
(c) The COMPANY hereby agrees to indemnify Consultant against, and to hold
Consultant harmless from, any claims, demands, suits, losses, damages,
etc. arising out of CONSULTANTS reliance upon the accuracy and
continuing accuracy of such material facts, material information, and
material data, unless Consultant has been negligent in fulfilling its
duties and obligations hereunder.
(d) The COMPANY hereby agrees to indemnify Consultant against, and to hold
Consultant harmless from, any claims, demands, suits, losses, damages,
etc. arising out of CONSULTANTS reliance on the general availability
of infonnation supplied to Consultant unless Consultant has been
negligent in fulfilling their duties and obligations hereunder.
(e) OThe COMPANY hereby authorizes Consultant to issue correctly;
amendatory, supplemental, or explanatory, shareholder communications
and reports, or data supplied to analysts, broker-dealers, market
makers, or other members of the financial community.
7. Compensation. For all public relations/investor relations services rendered
hereunder during the term hercof COMPANY and/or certain stockholders
("STOCKHOLDERS") shall issue Consultant as follows:
(a) COMPANY shall pay Consultant $3,500.00 U.S. This agreement is for
twelve (12) months beginnIng September 23, 1999 and ending September
23,2000. First end last months are due and payable upon execution of
this agreement Payment hereafter will be due and payable on the first
(13t) of each month~
(b) COMPANY shall issue to Consultant immediately following execution
hereof, $25,000.00 U.S. cash value free trading shares of the common
stock of Cathay Online, Inc..
(c) Campaign (public relations/investor relations) will commence upon the
receipt of(a) and (b) in its entirety.
(d) The parties acknowledge that in negotiating these fees they recognize
that the services contemplated under this Agreement may not be
performed in equal monthly segments, but may be substantial during the
earlier portion of the term of this Agreement, but less after the
relationships and communication lines are established directly by the
COMPANY. Accordingly, the lessening of the proportion of servces over
the later portion of this Agreement shall not constitute a breach of
Agreement or termination.
(e) The COMPANY shall pay its own costs and expenses incurred by
Consultant in providing the contemplated public relations/investor
relations services, including, but not limited to: out-of pocket
expenses for telephone/facsimile charges, postage and delivery
services charges, as well as compensation to third party vendors,
copywriters, stafF writers, art and graphic personnel, printing, etc.
COMPANY approves all costs in excess of $500.00 prior to incurrence. A
Proposed Monthly Investor Relations Expenses report, which outlines
the monthly expenses, is attached hereto and incorporated herein as
Exhibit A
(f) For all special services, not within the scope of this Agreement,
COMPANY shall pay Consultant such fees, costs, and expenses as, and
when, the parties shall determine in advance of performance of the
special
services provided that the COMPANY has agreed in advance to the
special services.
8. Billing and Payment For all services contemplated to be rendered hereunder,
and the costs and expenses thereof, the COMPANY shall pay Consultant as
outlined in paragraph 7(a), and (b).
9. RelationshIp of Parties. Consultant is an independent contractor,
responsible for compensation of its own affiliates, agents, employees and
representatives, as well as all applicable withholding therefrom and taxes
thereon (including unemployment compensation) and all workmenOs
compensation insurance. This Agreement does not establish any partnership,
joint venture, or other business entity or association between the parties
and no party is intended to have any interest in the business or property
of the other by reason of this Agreement
10. Terminatwn. This Agreement may be terminated by either the COMPANY or the
Consultant prior to the expiration of the term provided in paragraph (2)
above as follows:
(a) Upon failure of the other party to cure default under, or a breach of,
this agreement within ninety (90) days after written notice is given
to such default or breach by the terminating party;
(b) upon the, bankruptcy or liquidation of the other party; whether
voluntary or Involuntary;
(c) upon the other party taking the benefit of any insolvency law; and/or
(d) upon the other party having or applying for a receiver appointed for
all or a substantial part of such party's assets or business.
(e) The COMPANY may terminate this agreement with ninety (90) dayOs
notice. All monthly cash payments wilt cease upon the date of
termination. The options issued under section 7(c) in this agreement
axe exempt from this clause and remain effective for twenty - four
(24) months.
11. Waiver of Breach. The waiver by a party of a breach of any provision of
this Agreement by another party shall not operate or be construed as a
waiver of any subsequent breach by the breaching party.O
12. Assignment. The rights and obligations of the parties under this Agreement
shall inure to the benefit of, and shall be binding upon, the successors
and assigns of the parties.
13. Notices. Any notice required or permitted to be given under this Agreement
shall be sufficient if in writing, via fax transmittal and followed by
certified mail, return receipt requested, to the principal office of the
party being notified.
14. Entire Agreement, This instrument contains the entire Agreement of the
parties and may be modified only by agreement in writing, signed by the
party against whom enforcement of any waiver, change, modification,
extension or discharge is sought If any provision of this Agreement is
declared void, such provision shall be severed from this Agreement, which
shall otherwise remain in full force and effect.
15. Governing Law. This Agreement shall be a contract made in the State of
California and shall be interpreted and governed by, and construed in
accordance with, the laws of the State of California.
16. taxes. Any and all taxes, excises, assessments, levies, interest and
penalties, which may be assessed, levied, demanded, or imposed by any
governmental agency in connection with this Agreement, shall be paid by the
party upon which they are imposed and shall be the sole obligation of such
party.
17. brbltration. Any Controversy or claim arising out of or relating to this
Agreement shall be settled by arbitration in Los Angeles, California, in
accordance with the applicable rules of the American Arbitration
Association.
18. Counteruarts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have
executed this Agreement
COMPANY: CatbayOnline, Inc.
By: Date:
TALK STOCK WITH ME, INC.
By: Date: