MADISON & WALL MADISON & WALL
W O R L D W I D E
MARKET ACCESS PROGRAM MARKETING AGREEMENT
THIS AGREEMENT (the "Agreement") made and entered into this 30th day of May,
2001, by and between MADISON & WALL WORLDWIDE, INC. located at 195 Wekiva
Springs Road, Suite 200, Longwood, Florida 32779 (hereinafter referred to as
"M&W") and ACCESS POWER, INC., located at 10033 Sawgrass Drive West, Suite 100,
Ponte Vedra, Florida 32082, (hereinafter referred to as the "Company").
WITNESSETH:
For and consideration of the mutual promises and covenants contained herein, the
parties hereto agree as follows:
1. EMPLOYMENT
Company hereby hires and employees M&W as an independent contractor; and M&W
does hereby accept its position as an independent contractor to the Company upon
the terms and conditions hereinafter setforth.
2. TERM
The term of this Agreement shall be for twelve (12) months.
3. DUTIES AND OBLIGATIONS OF M&W
M&W shall have the following duties and obligations under this Agreement.
3.1 M&W will review and analyze various aspects of the Company's goals and
make recommendations on feasibility and achievement of desired goals.
3.2 Through its financial relations telemarketing division, M&W will
provide exposure to its network of firms and brokers that may be
interested in participating with the Company, schedule and conduct the
necessary due diligence, and obtain the required approvals necessary
for those firms to participate. M&W will also interview and make
determinations on any firms or brokers referred by the Company with
regard to their participation.
3.3 At the Company's request, M&W will be available to the Company to field
any calls from firms, individual investors/shareholders and brokers
inquiring about the Company. In addition, M&W will assist the Company
in preparing quarterly financial results and coordinating corresponding
conference calls and simulcasts on the Internet in accordance with
Regulation FD.
3.4 M&W will feature the Company on the Worldwide Internet via M&W's home
web site (www.insidewallstreet.com). Specifically, M&W will feature the
Company's Fast Fact Sheet prepared and maintained by M&W on its web
site.
3.5 M&W shall write, produce and assist the Company in releasing all news
announcements. The Company shall be solely responsible for paying all
fees associated with the actual release(s) through BusinessWire, P.R.
Newswire, or any other comparable news dissemination source. M&W will
create, build and continually enhance a fax database of all brokers,
investors, analysts and media contacts who have expressed an interest
in receiving on-going information on the Company. M&W will assist the
Company in setting up an account with a fax broadcasting agency to
manage the actual broadcasting in the event Company does not have this
capability in-house. Further, M&W will, at its discretion, mass-fax
broadcast select releases to its network of U.S. stockbrokers, analysts
and institutional investors.
3.6 M&W will serve as the Company's publicist and will strive to obtain
coverage in both national and industry publications, in financial
newsletters, on financial radio and television programming and via
traditional press mediums. Specifically, M&W will facilitate an
on-going outreach program to an intelligently targeted universe of
media professionals stemming from our list of nearly 380,000 media
contacts. Further, M&W will track published articles and, in
association with Burrelle's, provide monthly clippings of those
articles/mentions featuring the Company.
3.7 At the Company's request, strive to obtain the Company analyst coverage
and/or investment banking sponsorship.
3.8 Arrange for a series of due diligence meetings with select
broker/dealers, institutional investors and analysts at predetermined
dates throughout the campaign term, while remaining compliant with the
rules and regulations associated with Regulation FD.
3.9 ALL OF THE FOREGOING M&W PREPARED DOCUMENTATION CONCERNING THE COMPANY,
INCLUDING, BUT NOT LIMITED TO, FAST FACT SHEETS, NEWS ANNOUNCEMENTS,
SHAREHOLDER LETTERS, SHALL BE PREPARED BY M&W FROM MATERIALS SUPPLIED
TO IT BY THE COMPANY AND SHALL BE APPROVED BY THE COMPANY PRIOR TO
DISSEMINATION BY M&W.
195 Wekiva Springs Road, Suite 200, Longwood, Florida 32779
* 407-682-2001 * Fax-407-682-2544
www.insidewallstreet.com
Page 1 of 4
4. M&W'S COMPENSATION
Upon the execution of this Agreement, Company hereby covenants and agrees to pay
M&W as follows:
4.1 $120,000, payable in quarterly installments of $30,000 per quarter with
the first payment due upon execution of this Agreement and subsequent
quarterly payments of $30,000 due on or before September 1, 2001,
December 1, 2001, and March 1, 2002. M&W will agree to accept 1,500,000
restricted shares of the Company's common stock to be held as
collateral against delivery of cash funds. Upon delivery of cash
proceeds due and delivery as described herein, M&W will promptly return
the collateral shares to the Company via overnight courier service. In
the event the Company fails to deliver said cash funds in aggregate
which are due and payable as of September 1, 2001, then M&W will have
the right to retain the 1,500,000 restricted shares as compensation
consideration for the first six months of the term of this Agreement.
The balance of $60,000 shall be due and payable in cash in accordance
with the schedule setforth herein. If the Company fails to make said
cash payments for services provided to the Company by M&W for the
second six month period of this Agreement, then the Company agrees to
issue M&W an additional 1,500,000 restricted shares of the Company's
common stock on or before December 1, 2001. All restricted shares
issued in conjunction with this Agreement shall carry piggyback
registration rights on the first applicable Registration Statement
filed by the Company with the U.S. Securities & Exchange Commission.
4.2 M&W shall also be entitled to receive an option or warrant to purchase
up to 200,000 common shares of the Company's stock, exercisable as
follows:
o 100,000 common shares exercisable at $0.08 (eight cents) per
share; and
o 100,000 common shares exercisable at $0.12 (twelve cents) per
share.
The Company shall agree to issue M&W piggyback registration rights for
the common shares underlying the option/warrants listed above, whereby
these shares will be registered for resale by M&W on the first
applicable Registration Statement filed by the Company with the U.S.
Securities & Exchange Commission; said underlying common shares shall
be held by the Company until such time as M&W elects to exercise its
option or warrant to purchase the common shares. The term of the
option/warrant shall expire 24 months from the date the Registration
Statement registering the underlying the option/warrant is deemed
effective.
5. M&W'S EXPENSES AND COSTS Company shall pay all reasonable costs and
expenses incurred by M&W, its directors, officers, employees and
agents, in carrying out its duties and obligations pursuant to the
provisions of this Agreement, excluding M&W's general and
administrative expenses and costs, but including and not limited to the
following costs and expenses; provided all costs and expense items in
excess of $500.00 (Five Hundred U.S. Dollars) must be approved by the
Company in writing prior to M&W's incurrence of the same:
5.1 Travel expenses, including but not limited to transportation,
lodging and food expenses, when such travel is conducted on
behalf of the Company. 5.2 Seminars, expositions, money and
investment shows.
5.3 Radio and television time and print media advertising costs,
when applicable.
5.4 Subcontract fees and costs incurred in preparation of research
reports, when applicable.
5.5 Cost of on-site due diligence meetings, if applicable.
5.6 Printing and publication costs of brochures and marketing
materials which are not supplied by the Company.
5.7 Corporate web site development costs.
5.8 Printing and publication costs of Company annual reports,
quarterly reports, and/or other shareholder communication
collateral material which are not supplied by Company.
6. COMPANY'S DUTIES AND OBLIGATIONS Company shall have the following
duties and obligations under this Agreement:
6.1 Cooperate fully and timely with M&W so as to enable M&W to perform its
obligations under this Agreement.
6.2 Within ten (10) days of the date of execution of this Agreement to
deliver to M&W a complete due diligence package on the Company
including all the Company's filings with the Securities and Exchange
Commission within the last twelve months, the last six months of press
releases on the Company and all other relevant materials with respect
to such filings, including but not limited to corporate reports,
brochures, and the like; a list of the names and addresses of all the
Company's shareholders known to the Company; a list of the brokers and
market makers in the securities and a list of analysts or fund managers
which have been following the Company.
6.3 The Company will act diligently and promptly in reviewing materials
submitted to it from time to time by M&W and inform M&W of any
inaccuracies contained therein prior to the dissemination of such
materials.
INITIAL Company ____ INITIAL M&W _____ Page 2 of 4
6.4 Immediately give written notice to M&W of any change in Company's
financial condition or in the nature of its business or operations
which had or might have an adverse material effect on its operations,
assets, properties or prospects of its business.
6.5 Immediately pay all costs and expenses incurred by M&W under the
provisions of this Agreement when presented with invoices for the same
by M&W.
6.6 Give full disclosure of all material facts concerning the Company to
M&W and update such information on a timely basis.
6.7 Promptly pay the compensation due M&W under the provisions of this
Agreement as as defined in Section 4 herein.
7. NONDISCLOSURE
Except as may be required by law, Company, its officers, directors, emp loyees,
agents and affiliates shall not disclose the contents and provisions of this
Agreement to any individual or entity without M&W's expressed written consent
subject to disclosing same further to Company counsel, accountants and other
persons performing investment banking, financial, or related functions for
Company.
8. COMPANY'S DEFAULT
In the event of any default in the payment of M&W's compensation to be paid to
it pursuant to this Agreement, or any other charges or expenses on the Company's
part to be paid or met, or any part or installment thereof, at the time and in
the manner herein prescribed for the payment thereof and as when the same
becomes due and payable, and such default shall continue for twenty five (25)
days after M&W's notice thereof is received by Company; in the event of any
default in the performance of any of the other covenants, conditions,
restrictions, agreements, or other provisions herein contained on the part of
the Company to be performed, kept, complied with or abided by, and such default
shall continue for twenty five (25) days after M&W has given Company written
notice thereof, or if a petition in bankruptcy is filed by the Company, or if
the Company is adjudicated bankrupt, or if the Company shall compromise all its
debts or assign over all its assets for the payment thereof, or if a receiver
shall be appointed for the Company's property, then upon the happening of any of
such events, M&W shall have the right, at its option, forthwith or thereafter to
accelerate all compensation, costs and expenses due or coming due hereunder and
to recover the same from the Company by suit or otherwise and further, to
terminate this Agreement. The Company covenants and agrees to pay all reasonable
attorney fees, paralegal fees, costs and expenses of M&W, including court costs,
(including such attorney fees, paralegal fees, costs and expenses incurred on
appeal) if M&W employs an attorney to collect the aforesaid amounts or to
enforce other rights of M&W provided for in this Agreement in the event of any
default as set forth above and M&W prevails in such litigation. Further, until
M&W has received the cash or stock as described above in Section 4, M&W shall
not be required to commence performing hereunder.
9. COMPANY'S REPRESENTATIONS AND WARRANTIES
Company represents and warrants to M&W for the purpose of inducing M&W to enter
into and consummate this Agreement as follows:
9.1 Company has the power and authority to execute, deliver and perform
this Agreement.
9.2 The execution and delivery by the Comp any of this Agreement have been
duly and validly authorized by all requisite action by the Company. No
license, consent or approval of any person is required for the
Company's execution and delivery of this Agreement.
9.3 No representation or warranty by the Company in this Agreement and no
information in any statement, certificate, exhibit, schedule or other
document furnished, or to be furnished by the Company to M&W pursuant
hereto, or in connection with the transactions contemplated hereby,
contains or will contain any untrue statement of a material fact, or
omits or will omit to state a material fact necessary to make the
statements contained herein or therein not misleading. There is no fact
which the Company has not disclosed to M&W, in writing, or in SEC
filings or press releases, which materially adversely affects, nor, so
far as the Company can now reasonably foresee, may adversely affect the
business, operations, prospects, properties, assets, profits or
condition (financial or otherwise) of the Company.
10. LIMITATION OF M&W LIABILITY
If M&W fails to perform its services hereunder, its entire liability to the
Company shall not exceed the lessor of (a) the amount of cash compensation M&W
has received from the Company under Section 4 of this Agreement or (b) the
actual damage to the Company as a result of such non-performance. IN NO EVENT
WILL M&W BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES NOR FOR
ANY CLAIM AGAINST THE COMPANY BY ANY PERSON OR ENTITY ARISING FROM OR IN ANY WAY
RELATED TO THIS AGREEMENT, UNLESS SUCH DAMAGES RESULT FROM THE USE, BY M&W, OF
INFORMATION NOT AUTHORIZED BY THE COMPANY.
INITIAL Company ____ INITIAL M&W _____ Page 3 of 4
11. MISCELLANEOUS
11.1 Notices. Any notice or other communication required or
permitted to be given hereunder shall be in writing, and shall
be deemed to have been duly given when delivered personally or
sent by registered or certified mail, return receipt
requested, postage prepaid to the parties hereto at their
addresses indicated hereinafter. Either party may change his
or its address for the purpose of this paragraph by written
notice similarly given.
11.2 Entire Agreement. This Agreement represents the entire
agreement between the Parties in relation to its subject
matter and supersedes and voids all prior agreements between
such Parties relating to such subject matter.
11.3 Amendment of Agreement. This Agreement may be altered or
amended, in whole or in part, only in a writing signed by both
Parties.
11.4 Waiver. No waiver of any breach or condition of this Agreement
shall be deemed to be a waiver of any other subsequent breach
or condition, whether of a like or different nature, unless
such shall be signed by the person making such waiver and/or
which so provides by its terms.
11.5 Captions. The captions appearing in this Agreement are
inserted as a matter of convenience and for reference and in
no way affect this Agreement, define, limit or describe its
scope or any of its provisions.
11.6 Situs. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida. Venue shall
be located in Seminole County, Florida.
11.7 Benefits. This Agreement shall inure to the benefit of and be
binding upon the Parties hereto, their heirs, personal
representatives, successors and assigns.
11.8 Severability. If any provision of this Agreement shall be held
to be invalid or unenforceable, such invalidity or
unenforceability shall attach only to such provision and shall
not in any way affect or render invalid or unenforceable any
other provision of this Agreement, and this Agreement shall be
carried out as if such invalid or unenforceable provision were
not contained herein.
11.9 Arbitration. Except as to a monetary default by Company
hereunder, any controversy, dispute or claim arising out of or
relating to this Agreement or the breach thereof shall be
settled by arbitration. Arbitration proceedings shall be
conducted in accordance with the rules then prevailing of the
American Arbitration Association or any successor. The award
of the Arbitration shall be binding on the Parties. Judgment
may be entered upon an arbitration award of in a court of
competent jurisdiction and confirmed by such court. Venue for
Arbitration proceedings shall be Seminole County, Florida. The
costs of arbitration, reasonable attorneys' fees of the
Parties, together with all other expenses, shall be paid as
provided in the Arbitration award.
11.10 Currency. In all instances, references to monies used in this
Agreement shall be deemed to be United States dollars.
11.11 Multiple Counterparts. This Agreement may be executed in any
number of counterparts , each of which shall be deemed an
original, and all of such counterparts shall constitute one
(1) instrument.
12. This Agreement may be executed in counterparts and by fax transmission,
each counterpart being deemed an original.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the day
and year first above written.
CONFIRMED AND AGREED ON THIS ________DAY OF _____________________2001.
MADISON & WALL WORLDWIDE, INC.
By: ___________________________ _____________________________
M&W Representative M&W Officer
_______________________________ _____________________________
Print Name Print Name
CONFIRMED AND AGREED ON THIS ________DAY OF _____________________2001.
COMPANY NAME
By: ___________________________ ___________________________
Duly Authorized Witness
_______________________________ _____________________________
Print Name Print Name
INITIAL Company ____ INITIAL M&W _____ Page 4 of 4