EXHIBIT 10.12
INDEPENDENT CONTRACTOR/CONSULTING AGREEMENT
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THE AGREEMENT is made and entered into as November 12, 2002 by and between
MicroSignal Corporation, a Nevada corporation ("MSC") and Xxxx Xxxxxxxx, a
resident of Nevada ("Consultant").
RECITALS
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WHEREAS, MSC is a public company trading on the OTCBB under the symbol
"MSGL"; and
WHEREAS, Consultant is knowledgeable in the areas of business operations of
MSC and possesses experience in merger structure, corporate image, public
relations, marketing, advertising, business development and business strategy;
and
WHEREAS, MSC wishes to engage Consultant on a non-exclusive basis as an
independent contractor to utilize his experience and business knowledge to
assist in administering the affairs of MSC and to assist in completing a
proposed asset acquisition by MSC as well as developing a marketing strategy;
and
WHEREAS, Consultant is willing to be so retained on the terms and
conditions set forth in this Agreement.
AGREEMENT
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NOW, THEREFORE, in consideration of the promises and the mutual agreements
hereinafter set forth, the parties hereto agree as follows:
1. Engagement. MSC hereby retains and engages Consultant to perform the
following consulting services (the "Consulting Services"):
1.1 Duties of Consultant. Consultant will provide such services and advice
to MSC so as to assist MSC with marketing and developing operations in Russia
and advising MSC on the licensing and development of its services in Russia.
Without limiting the generality of the foregoing, Consultant will also assist
MSC in administering, studying and evaluating licensing and marketing proposals,
review reports and studies thereon when advisable, and assist in negotiations
and discussions pertaining thereof. Consultant will assist MSC in creating its
corporate image advertising, business development and business strategy as well
as marketing strategies in the target area described herein.
2. Duties Expressly Excluded. This Agreement expressly excludes
Consultant from providing any and all capital formation and/or public relation
services to MSC inclusive of but not limited to (i) direct or indirect promotion
of MSC's securities; (ii) assistance in making of a market in MSC's securities;
and (iii) assistance in obtaining debt and/or equity financing. Consultant
shall not have the power of authority to bind MSC to any transaction without
MSC's prior written consent.
3. Consideration. MSC and Consultant agree that Consultant shall receive
from MSC a fee consisting of 200,000 Shares of MSC's common stock, in advance,
as consideration for the services rendered or to be rendered pursuant to this
Agreement. The Shares to be issued hereunder shall be registered by MSC, at
its sole cost and expense, with the Securities and Exchange Commission.
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4. Term. This Agreement shall be effective for a term of twenty-four
months (24) starting from the date first above written unless sooner terminated
upon mutual written agreement of the parties hereto.
5. Expenses. Consultant shall bear his out-of-pocket costs and expenses
incident to perform the Consulting Services, without a right of reimbursement
from MSC unless such expenses are pre-approved by MSC.
6. Consultant's Liability. In the absence of gross negligence or willful
misconduct on the part of Consultant or Consultant's breach of any terms of this
Agreement, Consultant shall not be liable to MSC or to any officer, director,
employee, stockholder or creditor of MSC, for any act or omission in the course
of or in connection with the rendering or providing of services hereunder.
Except in those cases where the gross negligence or willful misconduct of
Consultant or the breach by Consultant of any terms of this Agreement is alleged
and proven, MSC agrees to defend, indemnify, and hold harmless from and against
any and all reasonable costs, expenses and liability (including reasonable
attorney's fees paid in the defense of Consultant) which may in any way result
from services rendered by Consultant pursuant to or in any connection with this
Agreement. This indemnification expressly excludes any and all damages as a
result of any actions or statements, on behalf of MSC, made by Consultant
without the prior approval or authorization of MSC.
7. MSC's Liability. Consultant agrees to defend, indemnify and hold MSC
harmless from an against any and all reasonable costs, expenses and liability
(including reasonable attorney's fees paid in defense of MSC) which may in any
way result pursuant to his gross negligence or willful misconduct or in any
connection with any actions taken or statements made, on behalf of MSC, without
the prior approval or authorization of MSC or which are otherwise in violation
of applicable law.
8. Representations. Consultant makes the following representations:
a. Consultant has no prior or existing legally binding obligations that
are in conflict with his entering into this Agreement;
b. Consultant shall not offer or make payment of any consideration to
brokers, dealers or others for purposes of inducing the purchase, making of a
market or recommendation for the purchase of MSC's securities;
c. Consultant is not currently the subject of an investigation or inquiry
by the Securities and Exchange Commission, the NASD, or any state securities
Commission;
d. Consultant's activities and operations fully comply with now and will
comply with in the future all applicable state and federal securities laws and
regulations;
e. Consultant understands that, as a result of his services, it may come
to possess material non-public information about MSC, and that he has
implemented internal control procedures designed to reasonably to insure that
neither he nor his employees, agents, Consultant or affiliates, trade in the
securities of client companies while in possession of material non-public
information;
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f. During the term of this Agreement and for a period of two years
thereafter, Consultant shall treat as MSC's confidential trade secrets all data,
information, ideas, knowledge and papers pertaining to the affairs of MSC.
Without limiting the generality of the foregoing, such trade secrets shall
include: the identity of MSC's customers, suppliers and prospective customers
and suppliers; the identity of MSC's creditors and other sources of financing,
MSC's estimating and costing procedures and the costs and gross prices charged
by MSC for its products, the prices or other consideration charged to or
required of MSC buy any of its suppliers or potential suppliers; MSC's sales and
promotional policies; and all information relating to entertainment programs or
properties being developed or otherwise developed by MSC. Consultant shall not
reveal said trade secrets to others except in the proper exercise of his duties
for MSC, or use their knowledge thereof in any way that would be detrimental to
the interest of MSC, unless compelled to disclose such information by judicial
or administrative process; provided, however, that the divulging of information
shall not be a breach of this Agreement to the extent that such information was
(i) previously known by the party to which it is divulged, (ii) already in the
public domain, all through no fault of Consultant, or (iii) required to be
disclosed by Consultant pursuant to judicial or governmental order;
Consultant shall also treat all information pertaining to the affairs of
MSC's suppliers and customers and prospective suppliers and customers as
confidential trade secrets of such customers and suppliers and prospective
customers and suppliers; and
g. Consultant agrees to notify MSC immediately if, at any time, any of the
representations and warranties made by Consultant herein are no longer true and
correct or if a breach of any of the representations and warranties made by
Consultant herein occurs.
9. MSC makes the following representations:
a. MSC is not currently the subject of an investigation or inquiry by the
Securities and Exchange Commission, the NASD, or any state securities
Commission;
b. MSC is in good standing in its state of incorporation;
c. MSC and its senior management are not aware of any materially adverse
events not previously disclosed in MSC's annual and quarterly reports with the
Securities and Exchange Commission.
10. Entire Agreement. This Agreement embodies the entire agreement and
understanding between MSC and Consultant and supersedes any and all
negotiations, prior discussions and preliminary and prior agreements and
understandings related to the primary subject matter hereof. This Agreement
shall not be modified except by written instrument duly executed by each of the
parties hereto.
11. Waiver. No waiver of nay provisions of this Agreement shall be
deemed, or shall constitute a waiver of any other provisions, nor shall any
waiver constitute a continuing waiver. No waiver shall be binding unless
executed in writing by the party making the waiver.
12. Assignment and Binding Effect. This Agreement and the rights
hereunder may not be assigned by the parties (except by operation of law or
merger) and shall be binding upon and inure to the benefits of the parties and
their respective successors, assigns and legal representatives.
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13. Notices. Ant notice or other communications between the parties
hereto shall be sufficiently given if sent by certified or registered mail,
postage prepaid, or faxed and confirmed at the following locations:
MSC:
MicroSignal Corporation
Attn: CEO
000 Xxxxxxxxxxx Xxxxxxxxx Xxx 000
Xxxxxxxxxx XX 00000
Consultant:
Xxxx Xxxxxxxx
0000 Xxxxx Xxxxxx Xxxxx Xxx 0000
Xxx Xxxxx XX 00000
or at such location as the addressee may have specified in notice duly given to
the sender as provided herein. Such notice or other communications shall be
deemed to be given on the date of receipt.
14. Severability. Every provision of this Agreement is intended to be
severable. If any term or provision hereof is deemed unlawful or invalid for
any reason whatsoever, such unlawfulness or invalidity shall not affect the
validity of this Agreement.
15. Governing Law. This Agreement shall be construed and interpreted in
accordance with the laws of Nevada, without giving effect to conflicts of laws.
16. Headings. The headings of this Agreement are inserted solely for the
convenience of reference and are not part of, and are not intended to govern,
limit or aid in the construction of any term or provision hereof.
17. Further acts. Each party agrees to perform any further acts and
execute and deliver any further documents that may be reasonably necessary to
carry out the provisions and intent of this Agreement.
18. Acknowledgment Concerning Counsel. Each party acknowledges that it
had the opportunity to employ separate and independent counsel of its own
choosing in connection with this Agreement.
19. Independent Contractor Status. There is no relationship, partnership,
agency, employment, franchise or joint venture between the parties. The parties
have no authority to bind the other or incur any obligations on their behalf.
20. Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto duly execute this Agreement as of
the date first written above.
MICROSIGNAL CORPORATION
By: /s/ Xxxxxx X. XxXxxxxxx
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Xxxxxxx X. XxXxxxxxx, President
By:/s/ Xxxx Xxxxxxxx
Xxxx Xxxxxxxx
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