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EXHIBIT 5 CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is entered into as of the 16TH
day of July, 1998, by and between Pacific Magtron, Inc. (the "Company"), and
Network Investor Communications Inc., a Nevada corporation ("Consultant").
Premises
a) Consultant has expertise and knowledge regarding media and public
relations.
b) The Company has need for the services of the Consultant in assisting in
the preparation of press releases, shareholder information and investor
relations.
Agreement
NOW, THEREFORE, for and in consideration of the mutual promises and covenants
hereinafter set forth, the benefits to the parties to be derived therefrom and
other good and valuable consideration the receipt and adequacy of which is
hereby acknowledged, it is agreed as follows:
1. Services. The Company hereby retains the Consultant and Consultant
hereby agrees to serve the Company as an independent consultant providing
advice and services to the Company in connection with:
a) Introduce company to retail brokerage firms, institutional investors,
analysts, and individual investors;
b) Working with management in developing strategies to add value to Company;
c) Creating an investor corporate profile, updated periodically (as needed);
d) Developing an investor kit to disseminate public information to trade
publications, newspapers, magazines and potential investment entities;
e) Producing and oversee fulfillment of investor requests and/or inquires;
f) Disseminating news and press releases over Business Wire or other wire
service; and
g) Assisting in public and media relationships; including media planning and
placement, message development, and preparation, timing and placement of press
releases.
Consultant agrees to provide such services to the Company as the Company may
from time to time reasonably request, including, without limitation, advice
and services with respect to those matters as to which it has special
competence by reason of its expertise. Consultant shall make its staff
available during reasonable business hours to perform services requested by
the Company that fall within the scope of this Agreement and Consultant's
expertise. Additionally, Consultant shall provide monthly reports to the
Company outlining its activities on behalf of the Company for the prior month.
2. Term. This Agreement shall remain in full force and effect for six (6)
months after the date hereof. The Agreement may be renewed for six (6)
additional months upon the mutual written consent of the parties. Upon
termination of this Agreement, the Company shall have no further obligations
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to Consultants, including the payment of any further monthly obligations.
Either party can terminate this Agreement, before the end of six (6) months,
provided that a written 30-day notice is given.
3. Compensation. The Company shall pay, and Consultant shall accept, a fee
structure as follows: $3,000 for first month, $4,000 for second month, $5,000
for third month, $5,000 for fourth month, $6,000 for fifth month, and $7,000
for sixth month, payable on the sixteenth of each month in advance.
4. Stock Compensation. It is hereby understood that any Stock Options to the
Consultant will be negotiated prior to Secondary Offering.
5. Reimbursement for Costs. The Company shall pay all reasonable and
necessary expenses, within the Company's normal expense guidelines, incurred
by Consultant in the course of providing advice and services to the Company
under the terms of this Agreement. Expenses also include business travel
while on business at the request of and in the service of the Company.
Consultant shall obtain written authorization from an executive officer of the
Company before committing to any such business expenditure in excess of five
hundred dollars ($500). Consultant shall provide the Company with all
receipts and/or other documentation concerning such business expenses. The
Company on receipt of documentation acceptable to it; including a statement
setting forth the purpose of such expenses, persons contacted and the
expectations or results of such conferences or contacts; shall pay such
expenses within thirty (30) days of the receipt of such documentation.
6. Independent Contractor. Consultant is retained under the terms of this
Agreement as an independent contractor and nothing herein shall be construed
as creating an employer/employee relationship, partnership or joint venture
between the parties. Consultant shall be solely liable for the payment of any
taxes imposed or arising out of the payment of compensation to it by the
Company set forth in this Agreement including taxes imposed by Internal
Revenue Code Section 3508; 6153 and section 1401 through 1403. The Company
agrees to the following rights of Consultant consistent with an independent
contractor relationship;
a) Consultant has the right to perform services for others during the term of
this Agreement;
b) Consultant will furnish all equipment and materials used to provide the
services required by this Agreement;
c) Consultant has the right to hire assistants as subcontractors, or to use
its employees to provide the services required by this Agreement, provided
that the Company is not liable for resulting cost; and
d) Neither Consultant nor its employees or agents shall be required to devote
full time to performing the services required by this Agreement.
7. Authority to Act. The Consultant shall not have the authority to act on
behalf of the Company or to enter into agreements on behalf of the Company.
8. Working Facilities. The Company shall provide to Consultant at the
Company's principal executive offices suitable office space and facilities for
use by Consultant when working on matters for the Company.
9. Nondisclosure of Information. Consultant agrees that during the term of
this Agreement, Consultant will not, nor will it allow its employees or agents
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to directly or indirectly, disclose to any person not authorized by the
Company to receive or use such information, any of the Company's confidential
or proprietary data, information, or techniques, or give any person not
authorized by the Company to receive it, any information that is not generally
known to anyone other than the Company or that is designated by the Company as
"limited," "private," "confidential," or otherwise marked to indicate its
confidential nature.
10. Assignment. The Consultant may not assign the obligations set forth
herein.
11. Entire Agreement. This Agreement supersedes and supplants all prior
agreements between the parties. This Agreement is the only agreement or
understanding between the parties hereto with respect to the advice and
services to be provided by Consultant to the Company. All negotiations,
commitment, and understandings of both parties have been incorporated herein.
This Agreement cannot be modified except by a written document signed by both
parties to this Agreement.
12. Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of California and venue shall be in the
County of Santa Xxxxx, State of California.
13. Attorney's Fees. In the event that either party hereunder institutes any
legal proceedings in connection with its rights or obligations under this
Agreement, the prevailing party in such proceeding shall be entitled to
recover from the other party, all costs incurred in connection with such
proceeding, including reasonable attorneys' fees and costs.
14. Notices. Any notices or other communication required or permitted
hereunder shall be sufficiently given if personally delivered, if sent by
facsimile or telecopy transmission or other electronic communications
confirmed by registered or certified mail, postage prepaid, or if sent by
prepaid overnight courier addressed as follows:
If to Network Investor Communications Inc., Consultant, to:
Xxxxxx X. Xxxxxx, President
Network Investor Communications Inc.
0000 Xxxxxxx Xxxxx, Xxxxx X
Xxxx, Xxxxxx 00000
Fax: (000) 000-0000
If to the Company, to:
Xxx Xx, CEO/President
Pacific Magtron, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
15. Severability. If, and to the extent that, any court of competent
jurisdiction holds any provision of this Agreement to be invalid or
unenforceable, such holding shall in no way affect the validity of the
remainder of this Agreement.
16. Waiver. No failure by any party to insist on the strict performance of
any convenient, duty, agreement, or condition of this Agreement, or to
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exercise any right or remedy consequent on a breach thereof, shall constitute
a waiver of any such breach or any other covenant, agreement, term, or
condition.
17. Confidential Nature. This Agreement is confidential in nature and,
accordingly, neither the Consultant nor the Company or their officers,
directors, employees and agents shall disclose its terms or conditions to any
other parties unless required to do so pursuant to an order of a court or
administrative body having proper jurisdiction over the parties and this
Agreement or pursuant to the requirements of the Securities Act of 1933, as
amended or the Exchange Act of 1934, as amended or any rule or regulation
promulgated thereunder.
PACIFIC MAGTRON, INC.
By:/S/Xxx Xx,CEO/President
NETWORK INVESTOR COMMUNICATIONS INC.
By:/S/Xxxxxx X. Xxxxxx, President
