AMENDED CONSULTING AGREEMENT
This Amended Consulting Agreement (the "Agreement") is entered into as of
March 1, 1999 between Panoramic Care Manager, Inc., (formerly named FreeStyle
Publications, Inc.) a Colorado corporation with its principal place of business
at 00000 Xxxx 00xx Xxxxx, Xxxxxx, Xxxxxxxx 00000, (the "Company") and Bolder
Venture Partners, LLC, a Colorado limited liability company with its principal
place of business at 0000 00xx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, (the
"Consultant").
RECITALS
A. The Company and the Consultant have entered into a letter of intent,
dated September 14, 1998, (the "LOI"), pursuant to which the Consultant has
provided and is providing consulting services to the Company.
B. The Company has amended its Articles of Incorporation and effected a
Stock Split, as contemplated by the LOI, so that there are presently outstanding
2,000,000 shares of Common Stock, $.001 par value per share, and the name of the
Corporation has been changed to Panoramic Care Manager, Inc., and Consultant has
furnished consulting services to the Company as contemplated in the LOI.
C. To formalize the consulting arrangements contemplated in the LOI, the
Company and the Consultant entered into a Consulting Agreement dated as of
December 7, 1998.
D. The Company proposes to make a public offering of its shares on the
Vancouver Stock Exchange ("VSE") and has been advised that, in order to comply
with certain of the requirements of the VSE, certain of the terms of the
Consulting Agreement should be modified, and the Company and the Consultant have
therefore agreed upon amended terms as set forth herein.
AGREEMENT
In consideration of the mutual promises contained herein, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Effective Date. This Agreement shall be deemed to be effective from
December 1, 1998 (the "Effective Date"), and it supersedes the LOI, the original
Consulting Agreement, and any other agreements between the Consultant and the
Company relating to consulting services to be furnished by the Consultant to the
Company and all such previous agreements shall hereafter be deemed terminated
for all purposes.
2. Consulting Services. The Consultant shall be reasonably available
during the period from the Effective Date through May 31, 1999 (the "Consulting
Period"), unless the term of this Agreement is renewed pursuant to Section 7, to
consult with the officers of the Company with
respect to matters of corporate development, capital raising and other financial
matters. Such consultation may include but shall not be limited to the
following:
(a) INTERIM FINANCING. The Consultant shall advise and assist with
respect to a private placement of the Company's Common Stock to raise up to
$600,000 of equity capital. The Consultant has been furnishing advise with
respect to such private placement since the Effective Date, and the private
placement has been completed.
(b) PUBLIC OFFERING. The Consultant shall advise and assist the
Company in preparation for a public offering of its Common Stock with the
intention to raise approximately $1,000,000 to $1,250,000 gross proceeds to the
Company, depending on market conditions. It is presently anticipated that such
offering would be effected through the facilities of the Vancouver Stock
Exchange in Vancouver, British Columbia and that the Common Stock would be
priced at approximately $1.00 per share to the public. The Consultant shall
assist the Company in selecting and engaging investment bankers to represent the
Company as an underwriter or agent in connection with the public offering with
Common Stock and otherwise to complete the offering.
(c) OTHER DUTIES; COORDINATION AND REPORTING. The Consultant shall
cause its principals to be available at reasonable times for consultation with
respect to strategic planning for the Company, including financial and capital
raising matters, both related to and in addition to those specific consultant
assignments described in the proceeding paragraphs of this Section 2. In
performing its services hereunder, the Consultant shall coordinate closely with
the officers and directors and other agents and advisers of the Company and
shall keep the officers of the Company fully advised at all times about the
status of all discussions with third parties concerning any of the services
provided by the Company hereunder. The Consultant shall furnish such reports
concerning its consulting activities at such intervals as the Company may from
time to time reasonably request.
3. Independent Contractor. The parties acknowledge that the
Consultant is acting as an independent contractor in furnishing the services
provided for hereunder and that neither the Consultant nor any of its officers
or agents is an employee of the Company or subject to the supervision and
direction of the Company in the performance of its services. Nothing herein
shall be deemed to create a partnership, joint venture or other relationship
between the Consultant and the Company other than the consulting relationship
described above.
4. Consulting Fees and Expenses.
(a) CONSULTING FEE. In consideration for the services to be
provided by the Consultant hereunder, the Consultant shall receive Warrants to
purchase shares of Common Stock of the Company (the "Consulting Fee") upon the
following terms:
(i) Concurrently with the execution of this
Agreement, the Company has granted to the Consultant Warrants to purchase up to
200,000 shares of Common Stock of the Company at an exercise price of $.25 per
share. The Warrants shall be immediately
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exercisable, and expire at the close of business the day prior to the offering
of shares in the Public Offering referred to in Section 3(b) above, but no later
than September 30, 2003.
(ii) Upon completion of the Private Placement, the
Company shall
grant to the Consultant Warrants to purchase 240,000 shares of Common Stock of
the Company with an exercise price of $1.00 per share. The Warrants shall be
exercisable beginning 90 days after the Company's shares are listed, posted, and
called for trading on the Vancouver Stock Exchange (the "Listing Date"), or on
December 31, 1999, whichever is earlier, and shall expire five (5) years after
that date.
(iii) Upon completion of the initial Public Offering,
the Company
shall grant to the Consultant Warrants to purchase a number of shares equal to
10% of the number of shares of Common Stock of the Company issued in the initial
Public Offering with an exercise price equal to the price per share received by
the Company in the initial Public Offering, for the first year after the Listing
Date, increased by 15 percent for the remainder of the term of the Warrants. The
Warrants shall become exercisable six months after the Listing Date and shall
remain exercisable for five years after the Listing Date.
(iv) The Warrants provided for in the preceding
paragraphs shall be evidenced by Warrant Agreements in form satisfactory to the
Company and the Consultant.
b. Cash Compensation. In addition to the compensation provided for
under Section 3 (a), during the Consulting Period the Company shall pay the
Consultant a monthly retainer of $6,000, and upon completion of the Private
Placement, the Company shall pay to the Consultant cash compensation in an
amount equal to 7.5% of the gross proceeds received by the Company in the
Private Placement.
c. Expense Reimbursement. The Company shall reimburse the
Consultant, in accordance with the Company's expense reimbursement policies, for
reasonable out-of-pocket expenses incurred in connection with the services
provided pursuant to this Agreement upon presentation of an itemized accounting
of such expenses with reasonable supporting data.
5. Trade Secrets and Confidential Information. During the term of
this Agreement and for a period of five (5) years following the termination of
Consultant's services hereunder, the Consultant shall not, directly or
indirectly, use, disseminate, or disclose for any purpose other than at the
specific written request of the Company, any of the Company's Confidential
Information, unless such disclosure is compelled in a judicial or governmental
proceeding or is required by law; PROVIDED, HOWEVER, that the Consultant shall
give the Company written notice of the Confidential Information to be so
disclosed or produced as far in advance of its disclosure or production as is
practicable and shall use his best efforts to obtain, to the greatest extent
practicable, an order or other reliable assurance that confidential treatment
will be accorded to such Confidential Information so required to be disclosed or
produced. All documents, records, notebooks, and similar repositories of records
containing information relating to any Confidential Information now in the
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Consultant's possession or control, whether prepared by him or by others, shall
be left with the Company or returned to the Company upon its request.
Consultant agrees that any violation by the Consultant of the agreements
contained in Section 5 are likely to cause irreparable damage to the Company and
the Consultant therefore agrees that if there is a breach or threatened breach
by the Consultant of the provisions of said sections, the Company shall be
entitled to an injunction restraining the Consultant from such breach. Nothing
herein shall be construed as prohibiting the Company from pursuing any other
remedies for such breach or threatened breach.
6. Reliance on Company Information; Indemnification and Limitation
of Liability. The Company recognizes and confirms that in the performance of its
services hereunder: (i) Consultant may rely upon information provided by the
Company without independent verification and (ii) Consultant does not assume
responsibility for the accuracy or completeness of such information, whether or
not it makes an independent investigation to verify such information. In no
event shall Consultant be liable for acting in accordance with instructions from
the Company or any entity authorized to act on its behalf.
(a) In consideration of Consultant's services as provided
herein, the Company agrees to indemnify and hold harmless Consultant and its
members, managers, officers, agents and employees against any loss, claim,
damage, liability, or expense, including reasonable counsel fees and expenses
("Losses") arising out of or to which Consultant may become subject in
connection with this engagement, unless such Loss results from Consultant's
willful misfeasance, bad faith or gross negligence.
(b) Consultant shall indemnify, defend and hold harmless the
Company and each of its directors, officers and employees against Losses arising
out of (i) any material misrepresentation about the Company that is inconsistent
with written information furnished to the Consultant by the Company, or (ii) or
any action by the Consultant in connection with its performance of services
hereunder which constitutes willful misfeasance, bad faith or gross negligence
by the Consultant.
(c) If any third party threatens to commence or commences any
action for which one party (the "indemnifying party") may be required to
indemnify another person hereunder, (the "indemnified party"), the indemnified
party shall promptly give notice thereof to the indemnifying party. The
indemnifying party shall be entitled, at its own expense and without limiting
its obligation to indemnify the indemnified party to assume control of the
defense of such action, with counsel selected by the indemnifying party and
reasonably satisfactory to the indemnified party. If the indemnifying party
assumes control of the defense, the indemnified party may participate in the
defense of such claim at its own expense. Without the prior written consent of
the indemnified party, which consent shall not be unreasonably withheld, the
indemnifying party may not settle or compromise the liability of the indemnified
party in any such action, or consent to or permit the entry of any judgment in
respect thereof, unless in connection with such settlement, compromise or
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consent, each indemnified party received from such claimant an unconditional
release from all liability in respect of such claim.
7. Termination; Renewal. This Agreement and the Consultant's
obligations to perform services hereunder shall terminate at the end of the
Consulting Period unless extended by the written consent of both the Consultant
and the Company.
8. Nonassignability; Successors. This Agreement provides for
personal services by the Consultant and its obligations hereunder may not be
assigned or delegated. The rights and obligations of the Company, and the rights
of the Consultant hereunder, shall bind and inure to the benefit of the
successors of the Consultant and the Company (including, in the case of the
Company, any successor to the business of the Company, whether by merger,
consolidation, acquisition of assets or any other transaction).
9. Entire Agreement. This Agreement is the entire agreement between
the parties and no representations, warranties or other statements or promises
have been made by either party to the other in connection with this Agreement.
10. Applicable Law. This Agreement shall be interpreted and
construed in accordance with the laws of the State of Colorado.
IN WITNESS WHEREOF, the Consultant and the Company have caused this
Agreement to be executed and delivered as of the first date mentioned above.
THE COMPANY:
PANORAMIC CARE MANAGER, INC.
By:__________________________________
President
THE CONSULTANT:
BOLDER VENTURE PARTNERS, LLC
By:__________________________________
Manager
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