EXHIBIT 10.7
CONSULTING AGREEMENT
AGREEMENT made effective as of this 29th day of December 2004, by and between
Pluris Opportunity Fund, L.P., a Florida limited partnership, hereinafter
referred to as "the Consultant" and Free DA Connection Services, Inc., a
Vancouver corporation ("Old Free DA"), Free DA Connection Services, Inc., a
Delaware corporation (Formerly Precise Positioning Products, Inc.), hereinafter
referred to as "the Company ".
WHEREAS, the Company and Old Free DA are in the process of completing a
transaction pursuant to which Old Free DA will become a wholly-owned subsidiary
of the Company; and
WHEREAS, the Consultant is engaged in the business of providing services and
venues for identifying strategic partnerships, business opportunities, product
distribution, media, business development, market evaluation, security product
analysis in the global markets and the Company desires to identify and embark
on these various potential opportunities while improving the growth of its
operations after completion of the acquisition, and
WHEREAS, the Company desires to secure the efforts of consultant who is capable
of providing these services to the Company and its customer base; and
WHEREAS, Consultant desires to provide services to the Company; and
WHEREAS, Company desires to retain the services of Consultant as provided
herein.
NOW THEREFORE, in consideration of the mutual covenants hereinafter set forth,
the parties hereto agree as follows:
1. Appointment
Company hereby appoints and engages Consultant as its advisor and hereby retains
and employs Consultant on the terms and conditions of this Consulting Agreement.
Consultant accepts such appointment and agrees to perform the services upon the
terms and conditions of said Consulting Agreement.
2. Engagement
Company engages Consultant to provide the services described in paragraph 3
herein. Consultant accepts said engagement and agrees to provide services to
Company as further described in paragraph 3 below and subject to the provisions
of this Consulting Agreement.
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3. Authority and Description of Services
During the term of this Consulting Agreement Consultant shall furnish some or
all of the various services from time to time as requested by the Company and
agreed upon by the parties as described herein as follows:
1. Consultant shall assist Company in preparing a business strategy for its
customer.
2. Consultant shall provide guidance in the development of a strategic business
and marketing plan for the purpose of guiding the growth of the Customer's
business.
3. Consultant shall provide guidance to the Company in regard to the selection
of Merger and Acquisition candidates for the Company to evaluate with the
Consultant.
4. Consultant shall assist the Company in identifying business opportunities
for its customer base and in evaluating these in the global markets.
5. Consultant shall not be required to perform any investment banking related
activities on behalf of Company as a condition of this Agreement. For the
purposes of this Agreement investment banking activities shall be defined as
being any of the following:
A. The location, negotiation and/or securing of public or private debt for
Company.
B. The location, negotiation and/or securing of any public or private
equity for Company.
C. The production of any documentation that is to be utilized for the
purposes and activities as relating to the activities as outlined in subheadings
(1) and (2) above.
D. Any other activities as may normally be associated with the practice of
investment banking.
4. Term of Agreement
This Consulting Agreement shall become effective upon execution hereof and shall
continue thereafter and remain in effect for a period of 120 days. It is
expressly acknowledged and agreed by and between the parties hereto that
Consultant shall not be obligated to provide any services and/or perform any
work related to this Consulting Agreement until such time any agreed and/or
specified retainer (deposit, initial fee, down payment) in U.S. funds, and/or
other specified and/or agreed valuable consideration, has been received by
Consultant or as identified in P-9.
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5. Where Services shall be performed
Consultant's services shall be performed at the main office location of
Consultant or other such designated location(s) as Consultant and Company agree
are the most advantageous for the work to be performed. Further, Company and
Consultant agree that there shall be no specified minimum time commitment for
Consultant to be considered to have performed all of its duties under this
Agreement
6. Limitations on Services
The parties hereto recognize that certain responsibilities and obligations are
imposed by Federal and State securities laws and by the applicable rules and
regulations of stock exchanges, the National Association of Securities Dealers,
in-house "due diligence" or "compliance" departments of brokerage houses, etc.
Accordingly, Consultant agrees as follows:
a. Consultant shall NOT release any financial or other information or data
about Company or customers of the Company without the consent and approval of
Company.
b. Consultant shall NOT release any information or data about Company or
customers of the Company to any selected or limited person(s), entity, or group
if Consultant is aware that such information or data has not been generally
released or promulgated and Company requests in writing that said information or
data is not to be so released or promulgated.
7. Duties of Company
a. Company shall supply Consultant, on a regular and timely basis with all
approved data and information about Company or it's customer (s), its
management, its products, and its operations and Company shall be responsible
for advising Consultant of any facts which would affect the accuracy of any
prior data and information previously supplied to Consultant so that Consultant
may take corrective action.
b. Consultant reports are not intended to be used in the sale or offering of
securities.
c. In that Consultant relies on information provided by Company for a
substantial part of its preparations and report, Company represents that said
information is neither false nor misleading, nor omits to state a material fact
and has been reviewed and approved by counsel to Company.
8. Representation, Undertakings and Indemnification
a. Company shall be deemed to make a continuing representation of the
accuracy of any and all material facts, material, information and data which it
supplies to
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Consultant and Company acknowledges its awareness that Consultant will rely on
such continuing representation in disseminating such information and otherwise
performing its functions hereunder.
b. Consultant, in the absence of notice in writing from Company, will rely
on the continuing accuracy of material, information and data supplied by
Company.
c. Company shall cooperate fully and timely with Consultant to enable
Consultant to perform its duties and obligations under this Consulting
Agreement.
d. The execution and performance of this Consulting Agreement by Company
has been duly authorized by the Board of Directors of Company in accordance with
applicable law, and, to the extent required, by the requisite number of
shareholders of Company.
e. The performance by Company of this Consulting Agreement will not violate
any applicable court decree or order, law or regulation, nor will it violate any
provision of the organizational documents and/or bylaws of Company or any
contractual obligation by which Company may be bound.
f. Company shall act diligently and promptly in reviewing materials
submitted to it by Consultant to enhance timely distribution of the materials
and shall inform Consultant of any inaccuracies contained therein within a
reasonable time prior to the projected or known publication date.
9. Compensation
Compensation payable to Consultant for all general services shall be 500,000
free trading shares registered by an S-8 registration statement by the Company
immediately upon the Company becoming eligible to complete such filing on S-8.
10. Consultant as an Independent Contractor
Consultant shall provide said services as an independent contractor, and not as
an employee or of any Company affiliated with Company. Consultant has no
authority to bind Company or any affiliate of Company to any legal action,
contract, agreement, or purchase, and such action cannot be construed to be made
in good faith or with the acceptance of Company; thereby becoming the sole
responsibility of Consultant. Consultant is not entitled to any medical
coverage, life insurance, savings plans, health insurance, or any and all other
benefits afforded Company employees. Consultant shall be solely responsible for
any Federal, State or local taxes, and should Company for any reason by required
to pay taxes at a later date, Consultant shall reassure such payment is made by
Consultant and not by Company. Consultant shall be responsible for all workers
compensations payments and herein holds Company harmless for any and all such
payments and responsibilities related hereto.
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11. Amendments
This Consulting Agreement may be modified or amended, provided such
modifications or amendments are mutually agreed upon by and between the parties
hereto and that said modifications or amendments are made in writing and signed
by both parties.
12. Severability
If any provision of this Consulting Agreement shall be held to be contrary to
law, invalid or unenforceable for any reason, the remaining provisions shall
continue to be valid and enforceable. If a court finds that any provision of
this Consulting Agreement is contrary to law, invalid or unenforceable, and that
by limiting such provision it would become valid and enforceable, then such
provision shall be deemed to be written, construed, and enforced as so limited.
13. Termination of Agreement
This Consulting Agreement may not be terminated by either party prior to the
expiration of the term provided in paragraph 4 above except as follows:
a. Upon the bankruptcy or liquidation of the other party; whether voluntary
or involuntary;
b. Upon the other party taking the benefit of any insolvency law; or
c. Upon the other party having or applying for a receiver appointed for
either party;
14. Non-waiver
The failure of either party, at any time, to require any such performance by any
other party shall not be construed as a waiver of such right to require such
performance, and shall in no way affect such party's right to require such
performance and shall in no way affect such party's right subsequently to
require full performance hereunder.
15. Early Termination
In the event Company fails or refuses to cooperate with Consultant, or fails or
refuses to make timely payment of the compensation set forth above, Consultant
shall have the right to terminate any further performance under this Consulting
Agreement. In such event, and upon notification thereof, all compensation shall
become immediately due and payable and/or deliverable, and Consultant shall be
entitled to receive and retain the same as liquidated damages and not as a
penalty, in lieu of all other remedies the parties hereby acknowledge and agree
that it would be too difficult currently to determine the exact extent of
Consultant's damages, but that the receipt and retention of such compensation is
a reasonable present estimate of such damage.
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16. Notices
All notices hereunder shall be in writing and addressed to the party at the
address herein set forth, or at such other address which notice pursuant to this
section may be given, and shall be given by either personal delivery, certified
mail, express mail or other national or three (3) business days after being
mailed or delivered to such courier service. Any notices to be given hereunder
shall be effective if executed by and sent by the attorneys for the parties
giving such notice, and in connection therewith the parties and their respective
counsel agree that in giving such notice such counsel may communicate directly
in writing with such parties to the extent necessary to give such notice. Any
notice required or permitted by this Consulting Agreement to be given shall be
given to the respective parties at the address first written above, on page one
(1) of this Consulting Agreement.
17. Exclusion with Respect to Partnership
The parties agree that, in no way, shall this Consulting Agreement be construed
as being an act of partnership between the parties hereto and that no party
hereto shall have, as a result of the execution of this Consulting Agreement,
any liability for the commitments of any other party of any type, kind or sort.
18. Incurement
This Consulting Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective heirs, executors, administrators, personal
representatives, successors, and assigns.
19. Entire Agreement
This Consulting Agreement contains the entire agreement of the parties and may
be modified or amended only by agreement in writing, signed by the party against
whom enforcement of any waiver, change, amendment, modification, extension or
discharge is sought. It is declared by both parties that there are no oral or
other agreements or understanding between them affecting this Consulting
Agreement, or relating to the business of Consultant. This Consulting Agreement
supersedes all previous agreements between Consultant and Company.
This agreement will be governed pursuant to the laws of Florida.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have
executed this Consulting Agreement.
Free DA Connection Services, Inc., a British Columbia corporation
BY:
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Xxxxx X. Xxxxxxxxx, President
Free DA Connection Services, Inc., a Delaware corporation
BY:
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Xxxxx X. Xxxxxxxxx, President
Pluris Opportunity Fund, L.P.,
BY: Pluris Partners, Inc., General Partners
BY:
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Xxxxxxx X. Xxxxxxx, Xx., President
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