EXHIBIT 10.14
PROFESSIONAL CONSULTING AGREEMENT
THIS PROFESSIONAL CONSULTING AGREEMENT is made this 7th day of April, 2005,
by and between SRG, LLC ("Consultant"), a Colorado limited liability com-pany,
with principal executive offices located at 00000 Xxxxxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxx 00000 and FREE DA Connection Services, Inc. ("Company"), a Delaware
corporation with principal executive offices located at Xxxxx 000-000 Xxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000.
WHEREAS, Consultant operates and sells marketing and investor relations
services designed to heighten public awareness of the business conducted and
performance results achieved by specified companies, which services consist
primarily of organizing and as-sembling information provided to the Consultant
by the company in a format which pro-files the company and which is conducive to
dissemination in appropriate information channels and networks, and
disseminating such information; and
WHEREAS, Company wishes to retain Consultant to provide such services with
re-spect to the Company on the terms and conditions set forth herein.
NOW THEREFORE, for the mutual promises and other consideration described herein,
the parties hereto agree as follows:
1. INFORMATION TO BE FURNISHED BY COMPANY. Company shall furnish
Consult-ant with current public information about the Company, including without
limitation the Company's Annual Report on Form 10-K or Form 10-KSB filed with
the Securities and Exchange Commission for the Company's most recently completed
fiscal year, its most re-cent Annual Report to Shareholders, its most recent
Proxy Statement and any other periodic or current reports filed with the
Securities and Exchange Commission pursuant to the Secu-rities Exchange Act of
1934 since the dates of those documents, and shall also provide any other public
information reasonably requested by Consultant ("Company Information"). Company
shall not provide to Consultant any confidential or nonpublic information
(unless under specific non-disclosure terms by way of written agreement)
con-cerning the Company, and any and all information concerning the Company
provided to the Consultant by Company shall be deemed nonconfidential and
public.
Company shall be responsible to assure Company Information accurately and
fairly presents the financial condition and results of operations of the Company
as of the dates indicated thereon. Consultant shall have no liability for any
misstatement or omission in the Company Information, and Company shall be
obligated to indemnify and defend Con-sultant against any claim, action or
proceeding brought by any party against Consultant as-serting such third party
has been injured as a result of any such misstatement or omission, unless proven
that the dissemination of the harmful information did not originate from the
Company.
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2. SERVICES TO BE PROVIDED BY CONSULTANT. Consultant shall exercise
commer-cially reasonable efforts to identify and establish appropriate
informational channels and networks capable of maximizing dissemination of
Company Information to targeted ele-ments of the public specified by Company,
and shall disseminate the Company Information in such channels and networks.
Consultant shall also exercise commercially reasonable efforts to assemble and
organize Company Information in a format and medium which best facilitates
dissemination through such channels and networks, and shall further exercise
commercially reasonable efforts to instigate and facilitate such dissemination.
To this end, Consultant shall work with the Company to:
(a) Create and implement a market development strategy designed to help
increase public awareness of the Company.
(b) Handle in accordance with the directions of the Company all
incom-ing investor and shareholder inquiries and correspondence including
emails, mail and telephone communications.
(c) Create exposure for the Company through informational programs
focus-ing on retail brokers, retail brokerage firms, institutions and portfolio
managers, utiliz-ing mailing of Company packages and telephone follow-up.
(d) Coordinate and schedule quarterly conference calls with key investors
and management.
(e) Assist in developing research coverage and sponsorship.
3. TERM AND TERMINATION. This Agreement shall become effective as of
the date written above, and shall remain in effect until the close of business
on that date which is twelve calendar months later, or, in the event such date
is not a business day, then on the first business day preceding such date
("Expiration Date"). Thereafter, this Agreement automatically shall renew for
additional one-year terms; unless either party notifies the other in writing
prior to the termination date that such party desires to ter-minate the
Agreement as of the Expiration Date. Upon any such termination of this
Agreement and except as otherwise explicitly stated herein, the parties hereto
shall have no further duty or obligations hereunder; provided that,
notwithstanding such termination, Company shall remain obligated to (a) defend
and indemnify Consultant as described in paragraph 1 of this Agreement, (b) take
actions with respect to stock options granted to Consultant and shares issued
with respect thereto as described in Section 4(b) of this Agreement, and (c)
make any payments of reimbursable expenses pursuant to paragraph 5 which have
not been previously paid. Said agreement may be terminated by the Company
should the Consultant be
4. COMPENSATION FOR SERVICES.
(a) Monthly Retainer Fee. Throughout the term of this Agreement,
Com-pany shall pay to Consultant a retainer fee in the amount of $2,500 USD per
month while listed on the Pink Sheets. Upon listing on the OTC Bulletin Board
or any other exchange, the retainer fee shall increase to $5,000 USD per month.
The first such monthly retainer fee shall be paid upon execution and delivery of
this Agreement by Company. Thereafter, said monthly retainer fee shall be due
and payable by Company
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in advance on the first day of each calendar month throughout the term of the
Agreement; provided that, if any such day is not a business day, then the
monthly retainer for the rele-vant period shall be due and payable by Company on
the first business day next following said first day of the relevant month (the
"Payment Date"). Failure by Company to pay the monthly retainer fee on any
Payment Date shall entitle Consultant to cease providing ser-vices pursuant to
this Agreement unless and until said payment is tendered in full, in addi-tion
to any other rights or remedies Consultant may have under this Agreement, at law
or in equity on account of such late payment.
(b) Stock and Stock Options. Company shall grant to Consultant,
concurrent with the execution and delivery of this Agreement, 150,000 144 shares
issued by two grants; 1st grant within 60 days of executing the agreement, 2nd
grant 120 days after execution. If Contract is terminated for "cause" or
mutually agreed to, within 60 days, only 75,000 shares will be issued. Company
shall grant to Consultant, non-qualified stock options entitling Con-sultant to
purchase up to 75,000 shares of Common Stock of the Company which shall vest
quarterly over the twelve months of this agreement and be fully exercisable.
The exercise price for the Vested Options shall be $0.50 USD per share. All
such options shall be issued under the Company's Stock Option Plan (the "Stock
Plan") and shall be represented by a stock option agreement mutually acceptable
to the Company and Consultant. All such op-tions shall survive for a term of
five years from the date of vesting and shall be freely as-signable, but not be
resold, by Consultant.
In the event the Company files or amends any registration statement
under the Securities Act of 1933 which registers for resale by option holders
shares of the Com-pany's Common Stock that they acquire through the exercise of
options granted under the Stock Plan, then the Company shall include in such
registration state-ment the resale by Consultant or its assignee(s) of shares of
the Company's Com-mon Stock acquired pursuant to the exercise of options granted
under this Agreement. Unless and un-til such resale registration of shares of
the Company's Common Stock underlying the options granted pursuant to this
Agreement becomes effective with the Securities and Exchange Commission, any
such shares of the Company's Common Stock shall have attached thereto customary
piggy-back registration rights providing the holder thereof with registration
rights in the event the Company and/or any of its shareholders register any of
their shares of Common Stock under the Securi-ties Act of 1933 for sale in a
pub-lic offering, excluding registrations on Form S-4 of shares being offered in
connection with business combination transactions or any successor regis-tration
form(s). The specific terms of the registration rights are set forth in the
Registration Rights Agreement being executed between the parties concurrent with
their mutual execu-tion and delivery of this Agreement.
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5. REIMBURSEMENT FOR EXPENSES. Company shall reimburse Consultant for all
out-of-pocket expenses incurred by Consultant in connection with performing
services pur-suant to this Agreement, including without limitation travel,
meals, lodging, long distance telephone and the installation and maintenance of
one Local Line with an associated Toll Free Line dedicated to the Company, and
out-of-pocket expenses incurred in connection with preparing Company Information
for dissemination, including without limitation art work, graphics, typesetting,
printing, copying, copywriting and postage, etc. Consultant shall obtain the
Company's prior approval before incurring any items of out-of-pocket expenses
which exceed $1,000 USD. Company agrees to make reimbursement payments for
out-of-pocket expenses upon receipt of Consultant's invoice.
6. CONSULTANT'S REPRESENTATIONS AND WARRANTIES. Consultant represents
and war-rants that services to be provided and materials to be produced or
developed by Con-sultant under this Agreement will be performed, produced or
developed by competent, trained personnel of Consultant or its subcontractors in
a workmanlike manner. Consult-ant, its personnel, its subcontractors and their
personnel shall comply with all applicable statutes, rules and regulations
governing all aspects of their services to be performed under this Agreement.
Company understands and acknowledges that Consultant cannot guaran-tee that the
services provided hereunder will achieve any particular objective or fulfill any
specified goals.
OTHER THAN THE FOREGOING EXPRESS WARRANTIES, CONSULTANT MAKES TO WARRANTIES
WITH RESPECT TO THE QUALITY OF THE GOODS AND SERVICES TO BE PROVIDED HEREUNDER
OR ANY RESULTS TO BE ACHIEVED, AND HEREBY EXPRESSLY DISCLAIMS THE EXISTENCE OF
ANY SUCH REPRESENTATIONS AND WAR-RANTIES, INCLUDING WITHOUT LIMITATION THE
IMPLIED WARRANTIES OF MER-CHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
CONSULTANT SHALL HAVE NO LIABILITY FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL
DAM-AGES SUFFERED BY COMPANY.
7. COMPANY'S REPRESENTATIONS AND WARRANTIES. Company represents and
war-rants to Consultant that Company has all requisite corporate or other power
and authority, and has taken all corporate or other actions necessary to
authorize, the execution, delivery and performance by it of this Agreement,
including without limitation the grant to consult-ant of stock options pursuant
to Section 4(b) and the issuance of shares of its common stock in connection
with the exercise thereof, and its execution and delivery of the Option
Agreement and the Registration Rights Agreement described in said Section 4(b).
This Agreement constitutes the valid and binding obligations of the Company,
enforceable against the Company in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws re-lating to the rights of creditors generally
and for general principles of equity.
8. 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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9. CHOICE OF LAW, JURISDICTION AND VENUE. This Agreement shall be governed
by, construed and enforced in accordance with the laws of the State of Delaware.
The parties agree Delaware will be the venue of any dispute and will have
jurisdiction over all parties.
10. 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 th State of Delaware in accordance with the applicable rules of
the American Arbitration Association, Commercial Dispute Resolution Procedures,
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.
11. MISCELLANEOUS. Neither party may assign its rights or duties under
this Agree-ment without the express prior written consent of the other party,
except that Consultant may freely assign stock options granted hereunder,
together with all of Consultant's associ-ated rights with respect thereto
provided in the Stock Option and Registration Rights Agreements. Additionally,
Consultant may retain one or more subcontractors to fulfill ser-vices to be
provided by Consultant hereunder, provided no such subcontracting on the part of
Consultant shall absolve Consultant from any liability or responsibility it
otherwise has under the terms of this Agreement on account of failures in
performance in the provision of such services.
This Agreement and the related Stock Option and Registration Rights
Agreements together contain the entire understanding of the parties with respect
to the subject matter hereof. The terms of this Agreement may be altered only
by written agreement between the parties. The failure of either party to object
to or take affirmative action with respect to any conduct of the other which is
in violation of the terms of this Agreement shall not be construed as a waiver
of the violation or breach, or of any future similar violation or breach. This
Agreement shall be governed and interpreted under the laws of the State of
Colorado.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed by its duly authorized officer or, as to an individual party, has
executed this Agreement in his or her own hand, as of the date first written
above.
FREE DA CONNECTION SERVICES, INC. SRG, LLC
By: By:
Xxx Xxxxxxxxxx Xxxx X. Xxxxxxxxx
Chairman & Chief Executive Officer Managing Director
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