FINANCIAL COMMUNICATIONS CONSULTING AGREEMENT
FINANCIAL COMMUNICATIONS CONSULTING AGREEMENT
This consulting agreement (“Agreement”), effective as of September 10, 2008, is entered by and between CX2 Technologies is a Nevada corporation (“the Company or “Company”) and Wall Street Resources, Inc., a Florida corporation (“Cons ultant”).
RECITALS
WHEREAS, the Company is a public company with its shares of common stock trading under the symbol “CXTO” on the OTCBB exchange in the United States; and
WHEREAS, Consultant has experience in the area of security analysis, corporate finance, investor communications; and
WHEREAS, the Company desires to engage the services of Consultant to provide written financial materials including, but not limited to, comprehensive Analytical Profiles, Summary Reports and Equity Notes, as well as providing inve stor relations services and communications with existing shareholders, brokers, dealers and other investment professionals, as to the Company’s current and proposed activities;
NOW THEREFORE, in consideration of the premises and the mutual covenants and agreements herein set forth, and intending to be legally bound, the Company and Consultant agree as follows:
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| 1. | Term of Consultancy The Company engages Consultant to act in a consulting capacity to the Company, and Consultant agrees to provide services to the Company commencing on the date first set forth above and ending twelve months after the execution of this agreement (the “term of this Agreement”). | |
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| Duties of Consultant The Consultant will generally provide the following consulting services (the “Services”) during the term of this Agreement: | ||
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| a. | Provide written analytical coverage and reports, advise and assist the Company in developing and implementing appropriate plans and materials for presenting the Company and its business plans, strategy and objectives to the financial community; |
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| b. | Write and disseminate four comprehensive Analytical or Corporate Profiles and or Updates regarding the Company to shareholders, brokers, dealers and other investment community professionals and the general investing public within the Consultant’s network; |
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| c. | Create and update 2 page glossy fact sheet; |
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| d. | Create and update two to six Summary Reports ; < /td> |
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| e. | Write and distribute Equity Notes when applicable during contract period; |
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| f. | Include a company write up in 12 monthly newsletters; |
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| g. | Include a company write up in 240 daily newsletters; |
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| h. | Featured the company on the Wall Street Resource, Inc. website with a dedicated web page; < /td> |
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| 3. | Allocation of Time and Energies The Consultant will perform the Services in a professional manner in accordance with accepted industry standards and in compliance with applicable securities laws and regulations. Although no specific hours-per-day requirement will be required, the parties acknowledge and agree that a disproportionately large amount of the effort to be extended and the costs to be incurred by the Consultant, and the benefits to be received by the Company, are to be expected to occur upon and shortly after , and in any event, within two months of the effectiveness of this Agreement. It is explicitly understood that Consultant’s performance of its duties hereunder will in no way be measured by the price of the Company’s common stock, nor the trading volume of the Company’s common stock. It is understood that the Company is entering into this Agreement with the understanding that Gerald N. Kieft and or Paul Silver will be the principal(s) of Consultant during the entire term of this Agreement. | |
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| 4. | Remuneration As full and complete compensation for Consultant’s agreement to perform the Services, the Company shall compensate the Consultant as follows: | |
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| a. | For undertaking this engagement and for other good and valuable consideration, the Company agrees to issue and deliver to the Consultant a “Commencement Bonus”, payable in the form of 1,000,000 shares of the Company’s 144 restricted Common Stock (“Common Stock”) and $0.00 in cash. The 144 restricted Common Stock portion of the Commencement Bonus shall be issued to the Consultant immediately following e xecution of this Agreement and shall, when issued to the Consultant, be fully paid and non-assessable. The Company understands and agrees that Consultant has forgone significant opportunities to accept this engagement and the Company derives substantial benefit from the execution of this Agreement and the ability to establish its relationship with Consultant. The shares of Common Stock issued as a Commencement Bonus, therefore, constitute payment for Consultant’s agreement to consult with the Company and are a nonrefundable and non-ratable retainer (with the exception of the provisions set forth in Section 15 below). Such Shares are not a prepayment for future services. If the Company attempts to terminate this Agreement prior to the expiration of its term for any reason whatsoever, it is agreed and understood that Consultant will not be requested or demanded by the Company to return any of the Shares paid to it hereunder. Consultant aggr ess to a leak out provision for the Common Stock and is limited to selling 200,000 shares per month once the restriction has been lifted from the certificate. |
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| 5. | Finder’s Fee | |
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| a. | If, during the term of this Agreement, or within one-year thereafter, any Fee Transaction(s) (as herein defined) occur(s), then the Company shall pay to Consultant a finder’ s fee (the “Fee”) as follows and is herein defined). |
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| b. |
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| WSR Funding Referral FeesFunding/Transaction Amount |
| Fee |
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| $ | 100,000 to $250,000 |
| $ | 5,000 |
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| $ | 250,000 to $500,000 |
| $ | 10,000 |
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| $ | 500,000 to $750,000 |
| $ | 15,000 |
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| $ | 750,000 to $1 million |
| $ | 20,000 |
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| $ | 1 million to $2.49 million |
| $ | 30,000 |
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| $ | 2.49to $5 million |
| $ | 50,000 |
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| $ | 5 to $10 million |
| $ | 100,000 |
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| $ | 10 million plus |
| $ | 150,000 |
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| c. | The term “Fee Transaction” means any investment made directly or indirectly in, or debt financing provided to or for the benefit of, the Company or its shareholders by any third party originally introduced by Consultant to the Company during the term of this Agreement and not previously known to the Company or its consultants. The term “Consideration” means the aggregate amount of cash and the fair market value (on the date of payment) of securities or assets received by, or for the benefit of, the Company or its shareholders in connection with a Fee Transaction. < font style="">“Consideration” includes, but is not limited to, the total fair market value of (a) cash, securities, assets and other tangible property received by the Company or its shareholders in a Fee Transaction, or distributable to the Consultant or its shareholders upon liquidation or dissolution of the Consultant following a Fee Transaction, (b) any amounts payable to the Company or its shareholders under any non-compete agreement or other agreements entered into in connection with a Fee Transaction, and (c) any compensation payable to any shareholder of the Company under any employment or consulting contract entered in connection with a Fee Transaction but only to the extent such compensation exceeds the then-current compensation of such shareholder. |
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| d. | If the Consideration shall consist entirely of cash paid at the closing of a Fee Transaction, the fee payable to Consultant shall be paid to Consultant upon such closing. To the extent the Consideration is paid at closing and consists wholly or partially of stock, other securities or other property (other than cash), the Company shall use its best efforts to make a cash |
| Initial ______,______ |
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payment to Consultant at closing, equivalent to the “Fair Value” of such Consideration, defined as the fair value to be agreed upon between Consultant and the Company and taking into account appropriate discounts for any applicable holding periods, volume, contractual, legal or other limitations or restrictions on sale or transfer, “blockage discounts” or any other limitations or restrictions on alienation with respect to any such stock, other securities or other property; however, if such valuation is not feasible or practicable, or if such fair value is not agreed upon, a portion of Fee may be paid to Consultant in the same form (i.e., stock, other securities or other property) and in the same proportions in which the Consideration is received by the Company or its stockholders, as the case may be.
e.
If the Consideration shall consist entirely of cash, but the payment(s) of all or any portion(s) of the Consideration shall be deferred and shall not be made until after closing of a Fee Transaction, the Company may, in its discretion, pay to Consultant the Fee on the same pro rata basis and at the same time or times as the Consideration is received by the Company or the Company’s stockholders (as the case may be). If any of the deferred payment(s) of the Consideration consists wholly or partially of stock, other securities or other property (other than cash), then with respect to each such payment, the Company shall use its best efforts to make a cash payment to Consultant equivalent to the Fair Value of such Consideration; however, if such determination of Fair Value is not feasible or practicable or if such Fair Value is not agreed upon, a portion of the Fee may be paid to Consultant in the same form (i.e., stock, other securities or other property) at the same time and in the same proportion in which the Consideration is received by the Company or its stockholders, as the case may be.
f.
Notwithstanding all of the foregoing provisions of this Section Five (5), in lieu of payment of portions of the Fee as the Consideration is so received, the Company may, at its option, pay to the Consultant the entire Fee in cash at closing, discounted to take into account the reasonably projected rate of inflation, and the period over which the Consideration is to be received, the then-generally-prevailing interest rate for unsecured debt obligations for such period of time of corporate borrowers of the h ighest credit standing, and, if applicable, the factors set forth in Section Five, paragraph d, with regard to Consideration in the form of stock, other securities or other property.
g.
The Fee payable to Consultant will be in addition to any fees payable by the Company to any other intermediary, if any, which shall be per separate agreements negotiated between the Company and such other intermediary. In reference to the Company procuring financing sources and acquisition and merger candidates through Consultant which qualify as a Fee Transaction, it is specifically understood that Consultant is not nor does it hold itself out to be a Broker/Dealer or investment adviser, but rather merely a “Finder”.
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| h. | It is further understood that the Company, and not Consultant, is responsible to perform any and all due diligence on any lender, equity purchaser or acquisition/merger candidate introduced to it by Consultant under this Agreement, prior to the Company receiving funds or closing on any acquisition. |
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| i. | Consultant will notify the Company of introductions it makes for potential sources of financing or acquisitions in a timely manner (within three (3) days of each introduction). If the Company has a preexisting relationship with such nominee and believes such party should be excluded from the Agreement, then the Company will notify Consultant immediately of such circumstances via facsimile memo (“fax”). |
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| 6. | Expenses: Consultant agrees to pay for all its expenses (phone, labor, etc.), other than extraordinary items for which the Company will reimburse Consultant. Such extraordinary items include travel and entertainment required by/or specifically requested by the Company, luncheons or dinners for large groups of investment professionals, mass faxing to a sizable percentage of the Company’s constituents, investor conference calls, print advertisements in publications, and like expenses which must be approved by the Company prior to its incurring an obligation for reimbursement. | |
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| 7. | Indemnification: | |
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| a. | The Company agrees to indemnify and hold h armless Consultant, its officers, directors, employees, affiliates and agents harmless from and against any and all losses, claims, damages and liabilities, related to or arising out of any breach by the Company of its obligations under this Agreement and/or the Company’s actions in connection with the transactions and/or activities contemplated herein. |
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| b. | Consultant agrees to indemnify and hold harmless Company, its officers, directors, employees, affiliates and agents harmless from and against any and all losses, claims, damages and liabilities, related to or arising out of any breach by Consultant of its obligations under this Agreement and/or the Consultant’s actions in connection with the transactions and/or activities contemplated herein. |
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| Initial ______,______ |
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| 8. | Representations: The Company warrants and represents that all oral communications, written documents or materials furnished to Consultant are accurate, and the Consultant warrants and represents that all communications by Consultant with the public, with respect to the financial affairs, operations, profitability, and strategic planning of the Company, will be in accordance with information provided to it by the Company. The Consultant may rely upon the accuracy of the information provided by the Company without independent investigation. Consultant represents that it is not required to maintain any licenses and registrations under federal or any state regulations necessary to perform the Services set forth herein. Consultant acknowledges that to the best of its knowledge, the performance of the Services will not violate any rule or provision of any regulatory agency having jurisdiction over Consultant. Consultant acknowledges that to the best of its knowledge, Consultant and its officers and directors are not the subject of any investigation, claim, decree or judgment involving any violation of the SEC or securities law. The Company acknowledges that to the best of its knowledge that it has not violated any rule or provision of any regulatory agency having jurisdiction over the Company. The Company also acknowledges that, to the best of its knowledge, the Company is not the subject of any investigation, claim, decree or judgment involving any violation of the SEC or securities laws. |
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| 9. | Status as Independent Contractor: Consultant’s engagement pursuant to this Agreement shall be as independent contractor, and not as employee, officer or other agent of the Company. Neither party to this Agreement shall represent or hold itself out to be the employer or employee of the other. Consultant further acknowledges the consideration provided hereinabove is a gross amount of consideratio n and that the Company will not withhold from such consideration any amounts as to income taxes, social security payments or any other payroll taxes. All such income taxes and other such payment shall be made or provided for by Consultant and the Company shall have no responsibility or duties regarding such matters. Neither the Company nor the Consultant possesses the authority to bind each other in any agreements, without the express written consent of the entity to be bound. |
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| 10. | Attorneys’ Fees: If any legal action(s) or any arbitration or other proceeding(s) is brought for the enforcement or interruption of the Agreement, or because of alleged dispute, breach, default or misrepresentation in connection with or related to this Agreement, the successful or prevailing party shall be entitled to recover reasonable attorney’s’ fees and other costs in connection with that action(s) or proceeding(s), in addition to any other relief to which they may be entitled. |
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| 11.< /p> | Waiver: The waiver by either party of a breach of any provision of this agreement by the other party shall not operate or be construed as a waiver of any subsequent breach by such other party. |
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| 12. | Notices: All notices, requests, and other communications hereunder shall be deemed to be duly given if sent by U.S. mail, postage prepaid, addressed to the other party at the address set forth herein below: |
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| Company Address: | Consultants Address: |
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| CX2 Technologies, Inc. | Wall Street Resources, Inc. |
| 3700 Airport Road, Suite 410B | 2646 SW Mapp Road, Suite 303 |
| Boca Raton, FL 33431 | Palm City, FL 34990 |
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| 13. | Choice of Law, Jurisdiction and Venue: This Agreement shall be governed by, construed and enforced in accordance with the internal laws of the State of Florida, without giving effect to its conflict of laws or choice of law principles. |
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| 14. | Arbitration: Any controversy or claim arising out of or relating to this Agreement, or the alleged breach thereof, or relating to Consultant’s activities or remuneration under this Agreement, shall be settled by binding arbitration in Wilmington, Delaware in accordance with the applicable rules of the American Arbitration Association, and judgment on the award rendered by the arbitrator(s) shall be binding on the parties and may be entered in any court having jurisdiction. |
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| 15. | Due Diligence Period: The Consultant retains the right to terminate this Agreement for thirty (30) days from the effectiveness of this Agreement while Consultant completes due diligence. Consultant explicitly understands that all Cash, Common Stock, Options or any other compensation received by the Consultant from the Company will be forfeited and returned to the company within five (5) days of written termination of the Agreement. |
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| 16. | Right to Change Opi nion: It is explicitly understood that forecasts, price targets and ratings are based heavily upon timely information supplied by the Company that is deemed to be realistic and accurate. Consultant reserves the right to revise their opinion regarding, but not limited to, revenue projections, income projections, price targets or rating in light of new information or if any prior information is found to be inaccurate or misleading. It is further agreed that Consultant reserves the right to revise their opinion regarding, but not limited to, revenue projections, income projections, price targets or rating in light of any significant or material change in the Company including, but not limited to, excessively dilutive financing, change in business model, merger, acquisition or change in management. |
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| 17 | Agreement: This Agreement contains the entire agreement of the parties relating to the subject matter hereof. This Agreement and its terms may not be changed orally, but only by an agreement in writing signed by the party against whom enforcement of any waiver, change, modification, extension or discharge is sought. |
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| AGREED TO: |
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| “The Company” &nbs p; | CX2 Technologies, Inc. | |
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| 3700 Airport Road, Suite 410B | |
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| Boca Raton, FL 33431 | |
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| Dated: September 10, 2008 | By: | /s/ Michael Rand |
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| Michael Rand |
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| Chief Executive Officer |
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| and Its Duly Authorized Officer |
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| “Consultant” | Wall Street Resources, Inc. | |
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| 2646 SW Mapp Road | |
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| Suite 303 | |
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| Palm City, FL 34990 | |
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| Dated: September 10,2008 | By: | /s/Gerald N. Kieft |
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| Gerald N. Kieft |
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| President |
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| and Its Duly Authorized Officer |
| Initial ______,______ |
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