Exhibit 10.30
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TRADE AGREEMENT
This Trade Agreement ("Agreement") is made as of October 18, 2000 by
and between netcruise.com,inc. ("NETCRUISE.COM") and
Active Media Services, Inc. ("ACTIVE").
1. Purchase and Sale of Stock. ACTIVE hereby agrees to purchase, and
NETCRUISE.COM hereby agrees to sell and issue to ACTIVE, FIVE MILLION
(5,000,000) shares of NETCRUISE.COM Common Stock, par value $0.0001 per share
(the "Shares"), subject to the terms and conditions of this Agreement
("Agreement") and a Stock Purchase Agreement, substantially in the form attached
hereto as Schedule A and made a part hereof.
2. Issuance of Trade Credit. ACTIVE shall issue to NETCRUISE.COM, in
full payment for the Shares, a trade credit in the amount of FIVE MILLION
DOLLARS ($5,000,000) (the "Trade Credit"). The Trade Credit shall be utilized
solely in accordance with the terms and conditions of this Agreement in
connection with the purchase by NETCRUISE.COM of media, goods and/or services
and shall not be redeemable for cash. Any Trade Credit that remains unapplied
pursuant to this Agreement on the close of business on February 29, 2006 shall
expire at that time and thereafter ACTIVE shall have no further obligation to
NETCRUISE.COM hereunder.
3. Use of the Trade Credit.
A. In order to utilize the Trade Credit, NETCRUISE.COM shall
submit to ACTIVE, a reasonable time in advance, a buying plan or plans
requesting the acquisition of media, goods and/or services reasonably available
to ACTIVE as a trading company. Upon acceptance by NETCRUISE.COM of the "Cash
Payment Requirement" and the "Trade Credit Requirement") (as such terms are
defined in Paragraph 4 hereof), ACTIVE shall submit to NETCRUISE.COM, or its
designee, the purchasing schedules developed by ACTIVE for approval prior to
placement or purchase. NETCRUISE.COM, or its designee, shall promptly advise
ACTIVE whether such purchasing schedules are approved. Upon approval by
NETCRUISE.COM of the purchasing schedules, ACTIVE shall promptly purchase the
media, goods and/or services requested.
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B. In the case of media, upon request, ACTIVE will also serve
as NETCRUISE.COM's media buying service and will develop media plans for the
acquisition of media. ACTIVE shall submit to NETCRUISE.COM the media plans
developed by ACTIVE for approval. Once such media plans are approved by
NETCRUISE.COM and upon acceptance by NETCRUISE.COM of the Cash Payment
Requirement and the Trade Credit Requirement, ACTIVE shall develop purchasing
schedules for approval by NETCRUISE.COM prior to placement or purchase.
NETCRUISE.COM shall promptly advise ACTIVE whether such purchasing schedules are
approved. Upon approval by NETCRUISE.COM of the purchasing schedules, ACTIVE
shall promptly purchase the media requested.
C. In the case of media, costs shall be gross. In the case of
broadcast and/or electronic media, costs shall be determined as set forth in
such buying plan or plans and as mutually agreed to by NETCRUISE.COM and ACTIVE
and all placements shall be subject to availability and market conditions. In
the case of print media, costs shall be the published SRDS rate card costs and
all insertions shall be subject to each publisher's rules on trade eligibility,
which shall be at the discretion of such publisher. In the case of outdoor
media, costs shall be the vendor's rate card for the location in question and
all postings shall be subject to availability and each vendor's rules on trade
eligibility, which shall be at the discretion of each vendor. In the case of
internet media, costs shall be the applicable website's rate card for the
website and placement shall be subject to availability and to each website's
rules on trade eligibility, which shall be at the discretion of each website.
D. In the case of travel-related services, which are subject
to trade availability to ACTIVE, costs shall be the applicable published rates
available to ACTIVE for the dates requested at the time of reservation
confirmation. In the case of goods and/or services (other than media and
travel-related services), which are subject to trade availability to ACTIVE: (i)
a benchmark for the costs of such goods and/or services must be established by
NETCRUISE.COM in arms length negotiations with a vendor or supplier and as
agreed to by ACTIVE; (ii) such costs must be verifiable by ACTIVE; and (iii)
NETCRUISE.COM shall provide ACTIVE with invoices or contracts evidencing such
costs, or if no such invoices or contracts exist, with proposals NETCRUISE.COM
has received from vendors or suppliers evidencing such costs.
E. Attached hereto as Schedule B and made a part hereof is a
list of media, goods and/or services which ACTIVE has provided to its clients on
a trading basis. This list is subject to change and to trade availability to
ACTIVE.
4. Payment of ACTIVE's invoices. ACTIVE shall advise NETCRUISE.COM of
the portion of its invoices that ACTIVE will require to be paid in cash in order
to effectuate a particular purchasing schedule (the "Cash Payment Requirement").
The remaining portion of ACTIVE's invoices will be paid by application of
unapplied trade credit (the "Trade Credit Requirement"). In the case of media,
the Trade Credit Requirement of ACTIVE's invoices will never be less than
fifteen percent (15%) of ACTIVE's invoices. In the event there is insufficient
Trade Credit to pay the Trade Credit Requirement of any of ACTIVE's invoices,
NETCRUISE.COM shall pay cash to the extent of such insufficiency. Payment terms
for ACTIVE's invoices will be on a prepaid or estimate basis as determined by
ACTIVE in accordance with its standard credit review policies and procedures. In
the case of media, following completion of the related media campaign, ACTIVE
shall provide NETCRUISE.COM with a reconciliation of the actual media which ran
against the media specified in the prepaid or estimated invoice(s), together
with proof of performance, and any appropriate adjustments will be made.
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5. Representations and Warranties.
A. By NETCRUISE.COM
1. Organization and Standing. NETCRUISE.COM is a corporation duly organized and
validly existing under the laws of the State of New Jersey and is in good
standing under such laws. NETCRUISE.COM has all requisite corporate power and
authority to own and operate its properties and assets, and to carry on its
business as presently conducted and as proposed to be conducted.
2. Corporate Power. NETCRUISE.COM has all requisite legal and corporate power
and authority to execute and deliver this Agreement and to carry out and perform
its obligations under the terms of this Agreement.
3. Authorization. All corporate action on the part of NETCRUISE.COM, its
officers, directors and stockholders necessary for the authorization, execution,
delivery and performance of this Agreement by NETCRUISE.COM, the authorization,
sale, issuance and delivery of the Shares and the performance of all of
NETCRUISE.COM's obligations hereunder have been taken or will be taken prior to
the execution of this Agreement by both parties. This Agreement constitutes the
valid and legally binding obligations of NETCRUISE.COM, enforceable in
accordance with their respective terms, subject to laws of general application
relating to bankruptcy, insolvency and the relief of debtors and rules of law
governing specific performance, injunctive relief or other equitable remedies.
4. Governmental Consents. No consent, approval, qualification or authorization
of registration, designation, declaration or filing with, any local, state or
federal governmental authority on the part of NETCRUISE.COM is required in
connection with the valid execution, delivery or performance of this Agreement,
or the offer, sale or issuance of the Shares or the consummation of any
transaction contemplated hereby, except such additional filings as will be made
by NETCRUISE.COM to comply with applicable state and federal securities laws,
and with applicable general corporation laws of the various states.
5. Commercial Advertising. NETCRUISE.COM represents and warrants that each and
every element of any commercial advertising delivered by NETCRUISE.COM directly
or indirectly to ACTIVE and/or any media provider pursuant to this Agreement
does not and shall not infringe upon or violate the rights of any third party,
including, without limiting the generality of the foregoing, any copyrights,
trademarks, servicemarks, literary, music performance and synchronization
rights, or other intellectual property rights, any rights of privacy and
publicity, any private, civil or property rights, or any other applicable law.
6. Survival. The representations and warranties of NETCRUISE.COM set forth in
this Agreement shall survive the expiration or termination of this Agreement.
B. By ACTIVE.
1 Organization and Standing. ACTIVE is a corporation duly organized and validly
existing under the laws of the State of Delaware and is in good standing under
such laws. ACTIVE has all requisite corporate power and authority to own and
operate its properties and assets, and to carry on its business as presently
conducted and as proposed to be conducted.
2. Corporate Power. ACTIVE has all requisite legal and corporate power and
authority to execute and deliver this Agreement and to carry out and perform its
obligations under the terms of this Agreement.
3. Authorization. All corporate action on the part of ACTIVE, its officers,
directors and stockholders necessary for the authorization, execution, delivery
and performance of this Agreement by ACTIVE, the authorization, sale, issuance
and delivery of the Shares and the performance of all of ACTIVE's obligations
hereunder have been taken or will be taken prior to the execution of this
Agreement by both parties. This Agreement constitutes the valid and legally
binding obligations of ACTIVE, enforceable in accordance with their respective
terms, subject to laws of general application relating to bankruptcy, insolvency
and the relief of debtors and rules of law governing specific performance,
injunctive relief or other equitable remedies.
4. Governmental Consents. No consent, approval, qualification or authorization
of registration, designation, declaration or filing with, any local, state or
federal governmental authority on the part of ACTIVE is required in connection
with the valid execution, delivery or performance of this Agreement, or the
consummation of any transaction contemplated hereby.
5. Survival. The representations and warranties of ACTIVE set forth in this
Agreement shall survive the expiration or termination of this Agreement.
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6. Miscellaneous.
A. ACTIVE, on the one hand, and NETCRUISE.COM on the other,
(each an "Indemnitor") each indemnifies and agrees to hold harmless the other,
its successors, assigns, shareholders, officers, directors, agents,
representatives, employees and/or subdistributors of the Shares and/or each of
them (collectively referred to herein as the "Indemnified Party") from and
against any and all claims, liabilities, costs, expenses, suits, losses,
damages, recoveries (including, without limitation, reasonable attorney's fees
and disbursements), including interest, incurred by the Indemnified Party in any
action or proceeding between Indemnitor and the Indemnified Party or between the
Indemnified Party and any third party or otherwise, arising out of any breach or
alleged breach of any warranty, representation, agreement or inducement herein
made by the Indemnitor. The indemnification obligations contained herein shall
survive the expiration or termination of this Agreement.
B. This Agreement will not be effective to bind ACTIVE until and unless executed
and delivered by ACTIVE. Subject to the foregoing sentence, this Agreement shall
be binding upon the successors of both NETCRUISE.COM and ACTIVE.
C. This Agreement and the Schedules attached hereto contain
the entire understanding between the parties and supersede all prior and
contemporaneous agreements and understandings, written or oral, with respect to
the subject matter herein and no representations, warranties, inducements,
promises or agreements, oral or otherwise, by or between the parties not
contained herein or incorporated herein by reference shall be of any force or
effect. This Agreement may not be modified except by a writing signed by both
nor may it be assigned by either party hereto without the prior written consent
of the other party hereto, except as provided immediately below. NETCRUISE.COM
may assign TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000) of the Trade Credit to
David Appell ("Appell") in consideration for his services as a broker in this
transaction, upon ACTIVE and Appell signing a Trade Credit Usage Agreement in
connection with the usage of the Trade Credit. Any assignment made in violation
of this Agreement shall be void. ACTIVE retains the right to determine and
modify payment terms in accordance with its standard credit review policies and
procedures and to request and review credit references, histories and reports of
NETCRUISE.COM. No waiver of any provision of this Agreement shall be deemed or
shall constitute a continuing waiver of such provision or a waiver of any other
provision, unless otherwise expressly provided for in a writing signed by both
parties.
D. This Agreement shall be governed by the laws of the State
of New York without reference to principles of choice of laws. In the event of
any litigation, action or other proceeding relating to or arising out of this
Agreement, or the performance and enforcement of this Agreement, the parties
hereto irrevocably consent and submit to the exclusive personal jurisdiction of
the federal courts of the State of New York. Each of the parties consents that
service of process may be made on them by registered mail or overnight courier
(with delivery confirmed), to their respective addresses set forth herein. Each
of the parties hereto irrevocably waives any objection to services of process so
made or to jurisdiction or venue in such federal courts of the State of New
York, including without limitation any objection based on the grounds of forum
non conveniens.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date above set forth.
ACTIVE MEDIA SERVICES, INC.
By: /s/______________
Arthur Wagner
President
NETCRUISE.COM, INC.
By: /s/_________________
Lawrence E. Burk
President
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Schedule A
Form of Stock Purchase Agreement
See Stock Purchase Agreement
ACTIVE MEDIA SERVICES, INC.
By: /s/_________________________
NETCRUISE.COM, INC.
By: /s/___________________________
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Schedule B
MEDIA, GOODS AND/OR SERVICES
Spot Television
Spot Radio
Network Radio
National Cable Television
Print Media
National Syndication
Outdoor Media
Hotels
Airlines
Air Freight
Ocean Freight
Long Distance Telecommunication Services and Equipment
Carpet
Printing Services
Office Relocation Services
Business Equipment
Computer Software
Corrugated Box/Packaging
Premium and Incentive Items
Energy (subject to local, state and federal rules and regulations)
Office Furniture
The foregoing list is subject to change and to trade availability to ACTIVE.
ACTIVE MEDIA SERVICES, INC.
By: /s/_______________
NETCRUISE.COM, INC.
By: /s/__________________
Schedule B
