CONSULTING AGREEMENT as of March 31, 1996, by and between LOTTOWORLD,
INC., 2150 Goodlette Road, Suite 200, Naples, Florida 33940 (the "Company"), and
_______________ at _____________ or its assignees ("Consultant").
WHEREAS, Consultant is in the business of assisting public companies
in financia relations; and
WHEREAS, the Company desires to retain Consultant to provide certain
specified services for 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 hereby agree as follows:
1. DUTIES AND INVOLVEMENT
1.1. The Company hereby engages Consultant to provide financial
and public relations services as provided by attachment hereto.
1.2. Consultant acknowledges that neither it nor any of its employees
or affiliates is an officer, director, or agent of the Company, that in
rendering advice or recommendations to the Company it is not and will not be
responsible for any management decisions on behalf of the Company and that it is
not authorized or empowered to commit the Company to any recommendation or
course of action. The Company represents that Consultant does not have, through
stock ownership or otherwise, the power to control the Company nor to exercise
any dominating influence over its management.
2. TERMS
This Agreement shall continue until twelve (12) months from date of
execution.
3. COMPENSATION
Upon execution of this Agreement, as total and complete consideration
for the services to be provided and expenses to be incurred (described below) by
Consultant hereunder, the Company will issue and deliver to Consultant
______________ shares of Common Stock of the Company (the "Shares") which the
Company shall immediately register for free-trading under the Securities Act of
1933, as amended, by filing with the Securities and Exchange Commission a
registration statement relating to such Shares on Form S-8. The Company shall
pay such complete consideration to the Consultant by no later than May 17, 1996.
4. PAYMENT OF EXPENSES
Consultant agrees to pay for all costs and expenses incurred by
Consultant and its representatives and by third parties engaged by it in
connection with the performance of the financial and public relations services
provided for herein.
5. 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.
6. CONFIDENTIALITY
Consultant acknowledges that it may have access to confidential
information regarding the Company and its business. Consultant agrees that it
will not, d0uring or subsequent to the term of this Agreement except as
reasonably required in the performance of its services hereunder, 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 limited to, 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.
7. COVENANT NOT TO COMPETE
During the term of this Agreement, Consultant warrants, represents
and agrees that it will not compete directly with the Company in the Company's
primary industry or related fields.
8. REGISTRATION OF SECURITIES
As provided hereinabove, the Company will immediately file with the
Securities and Exchange Commission a registration statement on Form S-8
including the Shares. The Company will undertake to comply with the various
states securities laws and regulations with respect to the registration of the
Shares. The Company undertakes to make available for review and comment by
Consultant, on a timely basis and prior to submission with any regulatory
agency, copies of the registration statement.
8.1. At all times following registration of the Shares and continuing
for not less than twelve (12) months following such registration, the Company
shall maintain and be current on all filings with the United States Securities
and Exchange Commission, appropriate state securities departments and, as may be
required, with the National Association of Securities Dealers, Inc., the Nasdaq
SmallCap Market, and/or national or regional stock exchanges necessary to allow
the Shares to be freely tradable in the public market.
8.2. The Company agrees that during the term of this Agreement it
will not without the prior written approval of the Consultant issue any common
stock pursuant to Regulation S of the General Regulations of the Securities and
Exchange Commission or any registration of the Company's securities by means of
a Form S-8 registration statement.
9. CERTAIN REPRESENTATIONS AND WARRANTIES.
In order to give comfort to Consultant, the Company represents and
warrants the following:
9.1. the Company will furnish to Consultant, as requested, all
information concerning the Company which is relevant to its past, current and
planned operations, including, without limitation (i) financial statements,
including current cash received and disbursed (ii) issuance of stock, stock
options or warrants, including the pricing of such stock and stock rights (iii)
terms or employment agreements, including benefits of all types (iv) all Board
of Directors resolutions (v) all borrowing of any type (vi) shareholder lists
(vii) monthly reports from the Depository Trust Corporation ("DTC") or similar
organization and (viii) all transactions among affiliates or controlling persons
of the Company.
9.2. The Company is authorized and has the full power to issue such
Shares and to file a registration statement on Form S-8 for such Shares. Such
issuance or registration thereof will not violate any agreement, covenant,
understanding, arrangement or otherwise with any party, broker, agent, or
entity.
10. INVESTMENT REPRESENTATION
The Company represents and warrants that it has provided Consultant
access to all information available to the Company concerning its condition,
financial and otherwise, its management, its business and its prospects. The
Company represents that it has provided Consultant with all copies of the
Company's filings for the prior 12 months made under the Rules and Regulations
promulgated under the Securities Act of 1933, as amended (the "Act"), or the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), if any (the
"Disclosure Documents"). Consultant acknowledges that the acquisition of the
securities to be issued to Consultant involves a high degree of risk. Consultant
represents that it and its advisors have been afforded the opportunity to
discuss the Company with its management. The Company represents that it has and
will continue to provide Consultant with any information or documentation
necessary to verify the accuracy of the information contained in the Disclosure
Documents and will promptly notify Consultant upon the filing of any
registration statement or other periodic reporting documents filed pursuant to
the Act or the Exchange Act. The Company hereby represents that it does not
currently have any of its securities in registration and further agrees to
refrain from offering for sale any additional securities of the Company and from
filing any additional registration statements during the term of this Agreement
other than as provided for herein without the consent of Consultant, which shall
not unreasonably be withheld.
11. 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.
12. ARBITRATION
Any dispute, controversy or claim between the Company and Consultant
arising out of or related to this Agreement, or breach thereof, shall be settled
by arbitration, which shall be conducted in accordance with the rules of the
American Arbitration Association then in effect. Any award shall be binding and
conclusive for all purpose thereof, may include injunctive relief, as well as
orders for specific performance, and may be entered as a final judgment in any
court of competent jurisdiction. No arbitration arising out of or relating to
this Agreement shall include, by consolidation or joinder or in any other
manner, parties other than the Company or Consultant and other persons
substantially involved in common questions of fact
or law whose presence is required if complete relief is to be afforded in
arbitration. The costs and expenses of such arbitration shall be borne in
accordance with the determination of the arbitrator and may include reasonable
attorney's fees. Each party hereby further agrees that service of process may be
made upon it by registered or certified mail, express delivery or personal
service at the address provided for herein.
13. INDEMNIFICATION
13.1. The Company agrees to indemnify and hold harmless Consultant
and its agents and employees against any losses, claims, damages or liabilities,
joint or several, to which Consultant or any such other person may become
subject, under the Act or otherwise, 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 Consultant or any such other person
for any legal or other expenses reasonably incurred by Consultant or any such
other person in connection with investigating or defending any such loss, claim,
damage, liability, or action, suit or proceeding; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement, or omission or alleged omission from the registration
statement, any preliminary prospectus, the prospectus, or any such amendment or
supplement, in reliance upon and in conformity with written information
furnished to the Company by Consultant specifically for use in the preparation
thereof. This indemnity agreement will be in addition to any liability which the
Company may otherwise have.
13.2. Consultant will indemnify and hold harmless the Company, each
of its directors, each of its officers who has signed the registration statement
and each person, if any, who controls the Company within the meaning of the Act
against any losses, claims, damages or liabilities to which the Company or any
such other person may become subject, under the Act or otherwise, 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 on the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statement therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement, or omission or alleged omission was made in said registration
statement, any preliminary prospectus, the prospectus, or any such amendment or
supplement, in reliance upon and in conformity with written information
furnished to the Company by Consultant specifically for use in the preparation
thereof, and will reimburse any legal or other expenses reasonably incurred by
the Company or any such other person in connection with investigating or
defending any such loss, claim, damage, liability, or action, suit or
proceeding. This indemnity will be in addition to any liability which Consultant
may have. This indemnity agreement will be in addition to any liability which
Consultant may otherwise have.
13.3. Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, suit or proceeding, such
indemnified party will, if a claim in
respect thereof is to be made against an indemnifying party under this Section,
notify the indemnifying party of the commencement thereof, but the omission so
to notify the indemnifying party will not relieve it from any liability which it
may have to any indemnified party otherwise than under this Section. In case any
such action, suit or proceeding is brought against any indemnified party, and it
notifies an indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and, to the extent it may wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party, and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation.
14. NOTICES
All notices required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been duly given upon delivery
personally or by courier (such as FedEx or similar express delivery service) to
the party to be notified. Notice to each party shall be addressed to the
attention of the officer at the address set forth beneath the signature line, or
to such other officer or addresses as either party may designate upon at least
ten days' notice to the other party.
15. GOVERNING LAW
This Agreement shall be constructed by and enforced in accordance
with the laws of the State of Florida.
16. ENTIRE AGREEMENT
This Agreement contains the entire understanding and agreement
between 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 both parties.
17. NON-WAIVER
A delay or failure by either 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.
18. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same agreement.
19. BINDING EFFECT
The provisions of this Agreement shall be binding upon the parties,
their successors and assigns.
20. EFFECTIVE DATE
The effective date of this Agreement is March 31, 1996.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement to be effective as of the day and year above written.
LOTTOWORLD, INC.
By
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By
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