Business Development Agreement
BUSINESS DEVELOPMENT AGREEMENT
This Business Development Agreement ("Agreement") dated this 1st day of
April, 2003, is entered into by and between Xxxxx Xxxxxxx ("Advisors"),
individuals residing in the state of California, and Accupoll Holding Corp.
("Company" or "ACCUPOLL"), a Nevada corporation. Advisors and Company may each
be referred to as a "Party" and together Advisors and Company may be referred to
as the "Parties".
WHEREAS, Company wishes to engage Advisors to complete a thorough
evaluation of Company's business development programs and provide
recommendations about various courses of action;
WHEREAS, Company wishes to engage Advisors to perform a complete review
of its current business development procedures and make recommendations; and
WHEREAS, after reviewing Company's business goals with management,
Advisors are sufficiently confident that management's objectives can be
achieved;
NOW THEREFORE, in consideration of the promises and covenants contained herein,
the Parties hereto agree as follows:
1. RESPONSIBILITIES OF ADVISORS. Advisors agree to become management consultants
to Company with respect to the evaluation of the current business development,
and make recommendations as to possible ways to focus the assets and management
resources to achieve long-term growth. Advisors will work with management to
evaluate all strategic plans and evaluate the current capabilities of Company in
view of its organization and resources. In addition, Advisors will continue in
the role of business development for Company. It is understood that this program
of business development may involve the Company in possible business
combinations; strategic alliances, or joint venture transactions. None of the
services to be provided by Advisors under this Agreement shall be in connection
with the offer and sale of securities of ACCUPOLL in a capital raising
transaction, nor shall such services directly or indirectly promote or maintain
a market for any of ACCUPOLL securities. Advisors shall provide Company with
their opinion and recommendations with respect to the most appropriate means of
meeting corporate goals; however, the implementation of such recommendations
shall be at the sole and exclusive option of Company.
2. ANALYSIS AND REVIEW. Advisors agree to provide the following services, and
such other advisory services as may be appropriate and required to assist in
Company's efforts to meet the corporate goals:
A. Conduct summary due diligence and analysis of Company's operation
and structures to ascertain the feasibility of the Program ("Recommendation").
Such analysis shall include a critical evaluation of the information and
documents delivered to Advisors by Company prior to implementation of the
Program, and
B. Provide Company with a formal recommendation for implementation of
the program.
3. PROGRAM IMPLEMENTATION. Upon receipt of formal approval and written
authorization from Company to proceed with the Program, Advisors shall:
A. Advise Company with respect to the form and structure of the
Program;
B. Provide an analysis of strategic alternatives;
C. Assist in the development of new opportunities;
D. Assist Company wherever possible with the implementation of each
of the above- enumerated steps.
4. RESPONSIBILITIES OF COMPANY. In connection with the above activities, which
will be undertaken by Advisors on Company's behalf, Company shall fully
cooperate with the Advisors in the fulfillment of its duties hereunder, and
Company and Advisors agree to the following:
A. RELATIONSHIP. Advisors are independent contractors of Company and
will act as advisors to Company in accordance with this Agreement. Advisors
acknowledge and agree that it is their responsibility to provide all employment
taxes, insurance premiums and local, state and federal taxes related to this
Agreement. Neither FICA (Social Security), FUTA (Federal Unemployment), nor
local, state or federal income taxes will be withheld from payments to Advisors.
This provision shall also apply to any employees or agents of Advisors.
B. ACCESS TO INFORMATION. Furnish all non-privileged information and
data concerning Company, any transactions or prior transactions which Advisors
may request.
C. ACCESS TO COMPANY OFFICERS AND PROFESSIONALS. Company will provide
Advisors complete access to Company's officers, directors, employees,
accountants, counsel and other key persons.
5. TERM. The term of this Agreement shall be for a period of twelve months,
commencing on the date first set forth above.
6. TRUTHFUL REPRESENTATIONS. Company represents and warrants that all
information (a) made available to the Advisors, or (b) contained in any
materials prepared by Company will, at all times during this engagement be true,
accurate and complete in all material respects and will not contain any untrue
statement of a material fact or omit to state therein any fact necessary to make
the statements therein not misleading in light of the circumstances under which
they are made. Company further represents that any projections provided to
Advisors or contained in any materials prepared by or on behalf of Company with
respect to the subject matter thereof will have been prepared in good faith and
will be based on assumptions which in light of the circumstances under which
they are made are in Company's determination, reasonable.
7. RESPONSIBILITY FOR REPRESENTATIONS. Company acknowledges and agrees that in
rendering its services as agreed hereunder, Advisors will be using and relying
on the information (and information available from public sources and other
sources deemed to be reliable) without independent verification thereof and
without independent appraisal of any of Company's assets. Advisors do not assume
responsibility for the accuracy or completeness of the information. Any advice
rendered by Advisors pursuant to this Agreement may not be disclosed publicly
without Company's prior written consent.
8. INDEMNIFICATION OF ADVISORS. If in connection with the services or matters
that are the subject of this Agreement Advisors become involved in any capacity
in any action or legal proceeding, due to the actions, information, position,
assertions, and/or affirmations put forth by Company or by Advisors at the
direction of Company, or in reliance upon material or information furnished by
Company, Company agrees to indemnify and hold harmless Advisors as the case may
be for the reasonable legal fees of counsel, court costs and other expenses
(including the costs of investigation and preparation) incurred. Company also
agrees to hold harmless Advisors against any losses, claims, damages or
liabilities, joint services or matters which are the subject of this Agreement;
provided however that Company shall not be liable to Advisors with respect to
any loss, claim, damages or liability to the extent and only to the extent that
such loss, claim, damage or liability resulted from the gross negligence or
willful misconduct of Advisors. The provisions of this paragraph shall survive
the expiration of the period of this Agreement including any extensions thereof
set forth herein.
9. IMPLEMENTATION OF PROGRAM. In the event that Company provides Program
Authorization to Advisors, Company agrees, subject to its resources, to:
A. Allocate the services of its Chief Executive Officer, Chief
Financial Officer and engage such other outside professionals as required to
successfully implement and complete each task associated with the Program,
pursuant to Advisors' recommendation, unless modified in writing by the mutual
consent of the parties, and
B. Issue such compensation as may be suggested by Advisors so as to
cause timely implementation of the Program pursuant to Advisors' recommendation,
unless modified in writing by the mutual consent of the parties.
10. COMPENSATION. In consideration for the services which are to be provided by
Advisors under this Agreement, Company agrees to compensate Advisors as follows:
A. BUSINESS DEVELOPMENT, REVIEW, AND ANALYSIS. Company will retain
Advisors for a period of thirteen months, and Advisors will be paid under the
terms of this agreement in the form of 350,000 shares of S-8 registered common
stock to be issued to Advisors at discretion of the Company. These payments will
be subject to Company's right to terminate Advisors' services and this Agreement
as set forth in Paragraph 16 herein below. Advisors agree that dispositions of
the said common stock, if any, will be made in consultation with Company and
will not be conducted in any way that may pose a threat to or destabilize the
orderly public market in Company's securities.
B. STOCK IN LIEU OF CASH COMPENSATION. Advisors will be paid in free
trading ( S-8 registration ) Common Stock of ACCUPOLL. All shares will be issued
according to all state and federal rules and regulations. Company shall use all
reasonable and best efforts to prepare and file a Form S-8 Registration
Statement covering the registration of the above-referenced shares within 3
business days of the date of the execution of this Agreement. Company will bear
the full expense of the Form S-8 Registration filing.
11. EXPENSES. Upon demand, but no more than monthly, Company shall reimburse
Advisors for all of their reasonable out of pocket expenses incurred in
connection with the performance of their services pursuant to this Agreement.
Such expenses shall include, but not be limited to travel,
lodging, research, entertainment, printing, postage and similar charges.
Advisors agree that they shall obtain authorization from Company prior to
incurring any expense in excess of Two Hundred and Fifty Dollars ($250.00).
12. CONFIDENTIALITY. Except to the extent necessary to perform its obligations
hereunder or to comply with any applicable law, regulation or rule, neither
Party shall disclose or divulge to any third party other than the other Party's
directors, officers, auditor or legal advisors, either before or after the
termination of this Agreement, any document or information exchanged between the
Parties during the term of this Agreement without prior written consent of the
other Party, which consent shall not unreasonably withheld.
13. USE OF ADVICE AND RECOMMENDATIONS. Neither the Recommendations or any
advice, whether oral or in writing, and no other material prepared for Company
in connection with Advisors' services hereunder is to be used for any purpose
other than the purpose for which such report, advice or material was prepared,
or is to be used or referred to by Company in any public documents or otherwise
publicly referred to without Advisors' written consent. Notwithstanding the
foregoing, in the event that Company receives a request to disclose all or any
part of the information contained in any such report, advice or material under
the terms of a valid and effective subpoena or order issued by a court of
competent jurisdiction, Company may disclose such information provided that
Company notifies Advisors of the existence, terms and circumstances surrounding
such request.
14. NON-CIRCUMVENTION. Company hereby irrevocably agrees not to circumvent,
avoid or bypass Advisors, either directly or indirectly. Company will not
directly use or approach Advisors' associates, contacts or introductions in
order to avoid payments of fees to Advisors, or otherwise benefit, either
financially or otherwise, from information supplied to it or individuals and or
business entities introduced to it by Advisors with regard to any business
opportunity, business combination or joint venture under discussion. The spirit
of mutual trust and confidence shall be the underlying principle of this
undertaking, and the Parties agree to adhere thereto.
15. TERMINATION BY ADVISORS. It is hereby agreed and understood that Advisors
shall have the right to interview Company and accomplish a due diligence review
with respect to Company's representations and that at Advisors' sole discretion
if such interviews and due diligence demonstrate substantive and/or material
discrepancies from that which was put forth by the Company then Advisors shall
have the right to terminate this Agreement and be held harmless from any claims
of Company for such termination as well as from any claims of third parties
which may result from any such discrepancy. In the event that Advisors are
unable to perform their responsibilities under this Agreement due to the failure
of Company to perform its responsibilities hereunder, Advisors shall be released
from their responsibilities under this Agreement and shall receive any
compensation due and owing pursuant to Paragraph 10 above.
16. TERMINATION BY COMPANY. Notwithstanding Paragraph 5, Company may terminate
this Agreement at any time, without cause, upon thirty (30) days' written notice
to Advisors. In the event that Company terminates Advisors without cause prior
to the expiration of the term set forth in Paragraph 5, Advisors shall be
entitled to all compensation set forth in Paragraph 10 up and until the
effective date of termination. In the event of cancellation, Company can call
all unsold shares as of the date of effective cancellation, and all shares
accrued during the thirty day notice period, at par.
In the event that at time of such termination Company shall be in
discussions with respect to any persons or entities introduced by Advisors,
Advisors will maintain the exclusive right to conclude any transactions between
Company and such persons or entities. In case of termination, regardless of when
or by whom such termination may have been brought about, Advisors will receive
full reimbursement for the entire amount of expenses incurred by Advisors in
connection with their services pursuant to Paragraph 11 of this Agreement.
Neither termination nor completion shall affect the provisions of Paragraphs 6,
7, 8, 11, 12, 13 or 14, which shall remain operative and in full force and
effect for a period of two years subsequent to termination.
17. SECURITIES LAWS. The Parties to this Agreement mutually agree to comply with
any and all applicable securities laws with respect to their performance under
this Agreement.
18. MISCELLANEOUS PROVISIONS.
A. NOTICES. All notices, requests, demands and other communications to
be given hereunder shall be in writing and shall be deemed to have been duly
given on the date of personal service or transmission by fax if such
transmission is received during the normal business hours of the addressee, or
on the first business day after sending the same by overnight courier service or
by telegram, or on the third business day after mailing the same by first class
mail, or on the day of receipt if sent by certified or registered mail,
addressed as set forth below, or at such other address as any party may
hereafter indicate by notice delivered as set forth herein. Notice shall be
given to Advisor as follows: X/x Xxxxx Xxxxxxx, Xxxxx 000, 0000 Xxxxxx of the
Stars, Xxx Xxxxxxx XX 00000. Notice shall be given to Company as follows:
Accupoll Holding Corp., Attn: Xxxxxx Xxxxxx, 00 XXXXXXXXX XXXX, XXXXX 000,
XXXXXX, XX. 00000.
B. BINDING AGREEMENT; ASSIGNMENT. This Agreement shall constitute the
binding agreement of the Parties hereto, enforceable against each of them in
accordance with its terms. This Agreement shall inure to the benefit of each of
the Parties hereto, and their respective successors and permitted assigns.
C. ENTIRE AGREEMENT. This Agreement constitutes the entire and final
agreement and understanding between the Parties with respect to the subject
matter hereof and the transactions contemplated hereby.
D. WAIVER. No waiver of any provision of this Agreement shall be deemed
to be or shall constitute a waiver of any other provision, whether or not
similar, nor shall any waiver constitute a continuing waiver. No waiver shall be
binding unless executed in writing by the Party making the waiver.
E. HEADINGS. The headings provided herein are for convenience only and
shall have no force or effect upon the construction or interpretation of any
provision hereof.
F. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
G. FURTHER DOCUMENTS AND ACTS. Each party agrees to execute such other
and further documents and to perform such other and further acts as may be
reasonably necessary to carry out the purposes and provisions of this Agreement.
H. GOVERNING LAW & VENUE. This Agreement shall be governed by and
construed in accordance with the laws of the State of California, without giving
effect to the principles of conflicts of laws applied thereby. The parties
hereby agree that any disputes arising hereunder shall be brought before any
court of competent jurisdiction sitting in the County of Los Angeles, State of
California, and hereby consent to jurisdiction and venue in the County of Los
Angeles, State of California.
I. ADVICE, DRAFTING. Each party further agrees and acknowledges that
this Agreement represents the respective understandings of such parties as
negotiated between them, and no ambiguity or other aspect of this Agreement
shall be construed against any party solely by virtue of the drafting or
presentment of this Agreement. Each party has been advised to speak with a legal
and an accounting professional to understand the legal and tax implications and
impact of the transactions contemplated hereby, and neither party has relied
upon the other, the Company or their respective counsel in connection therewith.
J. SEVERABILITY. The provisions of this Agreement are severable, and if
any one or more provisions is determined to be illegal, invalid or otherwise
unenforceable, in whole or in part, by any court of competent jurisdiction, then
the remaining provisions of this Agreement and any partially unenforceable
provisions to the extent enforceable in the pertinent jurisdiction, shall
continue in full force and effect and shall be binding and enforceable on the
Parties.
K. SURVIVAL. The representations, warranties, general covenants and
indemnities contained in this Agreement shall survive the termination of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
COMPANY:
ACCUPOLL HOLDING CORP.
----------------------------------
By:
ADVISORS:
----------------------------------- -----------------------------
Signed By : XXXXX XXXXXXX
