X. X. XXXXX & ASSOCIATES
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT made this 1st day of December, 1996; by and between:
X.X. XXXXX & ASSOCIATES
000 Xxxxxxx Xxxxxx, Xxxxx #0000
Xxxxxxxxx Xxxxxxx, Xxxxxxx 00000
Telephone : [407] 000-0000
a Florida Corporation [hereinafter referred to as "HCS"], and :
NORTH AMERICAN RESORTS, INC
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Telephone : [407] 000-0000
a Colorado Corporation [hereinafter referred to as the "COMPANY"],
collectively HCS and the COMPANY hereinafter referred to as "the parties".
WITNESSETH
WHEREAS, HCS is an investor relations, direct marketing, publishing, public
relations, and advertising firm with expertise in the dissemination of
information about private and publicly traded companies; and is in the business
of providing investor relations services, public relations services, publishing,
advertising services, fulfillment services, marketing of business formats and
opportunities, financing arrangements, private placements and other related
programs, services and products; and
WHEREAS, the COMPANY is publicly held with its common stock trading on one or
more stock exchanges and/or over-the-counter; or the COMPANY desires to become a
publicly held company with its common stock trading on one or more stock
exchanges and/or over-the-counter; and
WHEREAS, the COMPANY desires to publicize itself with the intention of making
its business better known to its shareholders, investors, brokerage houses,
potential investors, or shareholders and various media; and
WHEREAS, HCS is willing to accept the COMPANY as a client; and
WHEREAS, the COMPANY requires investor relations services and desires to employ
and/or retain HCS to provide such services as an independent contractor, and HCS
is agreeable to such a relationship and/or arrangement, and the parties desire a
written document to formalizing and defining their relationship and evidencing
the terms of their Agreement;
THEREFORE, in consideration of the mutual covenants herein and other good and
valuable consideration, it is agreed as follows;
DEFINITIONS AND INTERPRETATIONS
1. CAPTIONS AND SECTION NUMBERS
The headings and section references to this Consulting Agreement are for
convenience of reference only and do not form a part of this Consulting
Agreement and are not intended to interpret, define or limit the scope, extent
or intent of this Consulting Agreement or any provision thereof.
2. EXTENDED MEANINGS
The words "hereof", "herein", "hereunder", "hereto" and similar expressions used
in any clause, paragraph or section of this Consulting Agreement and any
Addendum's and/or Exhibits attached to this Consulting Agreement will relate to
the whole of this Consulting Agreement including any attached Addendums and/or
Exhibits and not to that clause, paragraph or section only, unless otherwise
expressly provided.
3. NUMBER AND GENDER
In this Consulting Agreement words importing the masculine gender include the
feminine or neuter gender and words in the singular include plural, and vice
versa.
4. SECTION REFERENCES AND SCHEDULES
Any reference to a particular "article", "section", "paragraph" or other
subdivision of this Consulting Agreement and any reference to a schedule,
exhibit or addendum by name, number, and/or letter will mean the appropriate
schedule, exhibit or addendum attached to this Consulting Agreement and by such
reference is incorporated into and made part of this Consulting Agreement.
AGREEMENT
5. APPOINTMENT
The COMPANY hereby appoints and engages HCS as its investor relations counsel
and hereby retains and employs HCS upon the terms and conditions of this
Consulting Agreement. HCS accepts such appointment and agrees to perform the
services upon the terms and conditions of said Consulting Agreement.
6. ENGAGEMENT
The COMPANY engages HCS to publicize the COMPANY to brokers, prospective
investors and shareholders and as further described below and subject to further
provisions of this Consulting Agreement. HCS hereby accepts said engagement and
the COMPANY as a client, and agrees to publicize the COMPANY as further
described below and subject to the further provisions of this Consulting
Agreement.
7. AUTHORITY AND DESCRIPTION OF SERVICES
During the term of this Consulting Agreement HCS shall furnish various
professional services and advice as specifically requested by X. XXXXXXXX, who
is an authorized representative of the COMPANY, and holds the position of SENIOR
CONSULTANT, with the COMPANY. Said professional services and advice shall relate
to those services and advice shall relate to those services, items and/or
subjects described in Addendum "A", which is attached hereto and made apart
hereof by this reference, and/or as follows;
a. HCS shall act, generally, as corporate investor relations counsel,
essentially acting [1] as liaison between the COMPANY and its shareholders; [2]
as advisor to the COMPANY with respect to existing and potential market makers,
broker-dealers, underwriters, and investors as well as being the liaison between
the COMPANY and such persons; and [3] as advisor to the COMPANY with respect to
communications and information, which may include, but is not necessarily
limited to, preparation of one page magazine advertorial, writing a corporate
profile, preparation of a research report, planning, developing, designing,
organizing, writing and distributing such communications and information.
b. HCS shall assist in establishing, and advise the COMPANY with
respect to interviews of the COMPANY Officers by the financial media, interviews
of the COMPANY Officers by analysts, market makers, broker-dealers, and other
members of the financial community.
c. HCS shall seek to make the COMPANY, its management, its products,
and its financial situation and prospects, known to the financial media,
financial publications, broker-dealers, mutual funds, institutional investors,
market makers, analysts, investment advisors, and other members of the financial
community as well as the public generally.
d. HCS in providing the foregoing services, shall be responsible for
all costs of providing the services, including, but not limited to, out of
pocket expenses for postage, delivery service [e. g. Federal Express], telephone
charges, compensation to third party vendors, copywriters, xxxxx xxxxxxx, art
and graphic personnel, subcontractors, printing, etc.
e. HCS'S compensation under this Consulting Agreement shall be deemed
to include the above mentioned costs and expenses, unless otherwise expressly
provided herein.
f. Marketing Program: Including but not necessarily limited to, the
following components; i] HCS reviews and analyzes all aspects of the COMPANY'S
goals and makes recommendations on feasibility and achievement of desired goals.
ii] HCS provides through their network, firms and brokers interested in
participating and schedules and conducts the necessary due diligence and obtains
the required approvals necessary for those firms to participate. HCS interviews
and makes determinations on any firms or brokers referred by the COMPANY with
regard to their participation. iii] HCS shall be available to the COMPANY to
field calls from the firms and brokers inquiring about the COMPANY.
8. TERM OF AGREEMENT
This Agreement shall become effective upon full execution hereof and shall
continue thereafter and remain in effect for a period of one [1] year and/or in
the case of specific services as described in Addendum "A" attached hereto,
until such time as such matters are finalized to the satisfaction of both the
COMPANY and HCS. It is expressly acknowledged and agreed by and between the
parities hereto that HCS shall not be obligated to provide any services and/or
perform any work related to this Consulting Agreement until such time any agrees
and/or specific retainer [deposit, initial fee, down-payment] in U. S. funds,
and/or other specified and/or agreed valuable consideration, has been received
by HCS.
9. WHERE SERVICES SHALL BE PERFORMED
HCS services shall be performed at the main location of HCS, or other such
designated location[s] as HCS and the COMPANY agree are the most advantageous
for the work to be performed.
10. 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, HCS agrees as follows:
a. HCS shall NOT release any financial or other information or data
about the COMPANY without the consent or approval of the COMPANY.
b. HCS shall NOT conduct any meetings with financial analysts without
informing the COMPANY in advance of any proposed meeting, the format or agenda
of such meeting and the COMPANY may elect to have a representative of the
COMPANY attend such a meeting.
c. HCS shall NOT release any information or data about the COMPANY to
any selected or limited person[s], entity, or group if HCS is aware that such
information or data has not been generally released or promulgated and the
COMPANY requests in writing that said information or data is not to be so
released or promulgated.
d. After notice by the COMPANY of filing for a proposed public offering
of securities of the COMPANY, and during any period of restriction on publicity.
HCS shall not engage in any public relations efforts not in the normal course
without approval of the COMPANY and of counsel for the underwriter[s], if any.
11. DUTIES OF THE COMPANY
a. The COMPANY shall supply HCS, on a regular and timely basis with all
approved data and information about the COMPANY, its management, its products,
and its operations and the COMPANY shall be responsible for advising HCS of any
facts which would affect the accuracy of any prior data and information
previously supplied to HCS so that HCS may take corrective action.
b. The COMPANY shall promptly supply HCS, with full and complete copies
of all filings with all Federal and State Security agencies; with full and
complete copies of all shareholder reports and communications whether or not
prepared with the assistance of HCS; with all data and information supplied to
any analyst, broker-dealer, market maker, or other member of the financial
community; and with all product/services brochures, sales materials, etc. The
COMPANY shall supply to HCS, within fifteen [15] days of executing, this
Consulting Agreement, with a list of all stockbrokers and market makers active
in the stock of the COMPANY , and a complete list of all its shareholders on
3-1/2 inch computer disk in ASCH delimited format.
c. HCS reports are not intended to be used in the offering of
Securities. Accordingly, clients must agree to each of the points listed below
and to indemnify HCS for any breach of the representations and covenants:
i. The COMPANY is not presently in a private public offering
of Securities, including S-8 or Regulation S, or including any continuing
distribution, whether or not exempt, that will not be included prior to the
issuance of a HCS research report on the COMPANY, and the COMPANY has no
intention of making such an offering during the initial term of this Consulting
Agreement. An "evergreen" prospectus for employee stock option and other plans
will not preclude issuance of HCS research reports.
ii. The COMPANY will notify HCS in writing a minimum of thirty
[30] days prior to making any private offering of Securities, including but not
limited to S-8 filing or Regulation S.
iii. The COMPANY will notify HCS at least thirty [30] days
prior to any insider selling of clients stock.
iiii. The COMPANY will not use HCS reports in connection with
any offering of Securities without the prior written consent of HCS.
d. In that HCS relies on information provided by the COMPANY for a
substantial part of its preparations and reports, the COMPANY must represent
that said information is neither false nor misleading, and agrees to hold
harmless and indemnify HCS for any breach of these representations and
covenants; and the COMPANY agrees to hold harmless and imdenify HCS for any
claims relating to the purchase and/or sale of the COMPANY securities occurring
out of, or in connection with HCS'S relationship with the COMPANY, including,
without limitation, reasonable attorney's fees and other costs arising out of
any such claims.
e. In that HCS shareholders, officers, employees, and/or members of
their families may hold a position in and engage in transactions with respect to
the COMPANY Securities, and in light of the fact that HCS imposes restrictions
on such transactions to guard against trading on the basis of material
non-public information the COMPANY shall contemporaneously notify HCS if any
information or data being supplied to HCS has not been generally released or
promulgated.
12. REPRESENTATION AND INDEMNIFICATION
a. The Company shall be deemed to make a continuing representation of
the accuracy of any and all material facts, materials, information, and data
which it supplies to HCS and the COMPANY acknowledges its awareness that HCS
will rely on such continuing representation in disseminating such information
and otherwise performing its investor relations functions.
b. HCS, in the absence of notice in writing from the COMPANY, will rely
on the continuing accuracy of materials, information, and data supplied by the
COMPANY.
c. The COMPANY hereby agrees to hold harmless and indemnify HCS
against any claims, demands, suits, loss, damages, etc., arising out of HCS's
reliance upon the accuracy and continuing accuracy of such facts, materials,
information, and data, unless HCS has been negligent in performing its duties
and obligations hereunder.
d. The COMPANY hereby authorizes HCS to issue, in HCS'S sole
discretion, corrective, amendatory, supplemental, or explanatory press releases,
shareholder communications and reports, or data supplied to analyst,
broker-dealers, market-makers, or any other members of the financial community.
e. The COMPANY shall cooperate fully and timely with HCS to enable HCS
to perform its duties and obligations under this Consulting Agreement.
f. The execution and performance of this Consulting Agreement by the
COMPANY has been duly authorized by the Board of Directors of the COMPANY in
accordance with applicable law, and, to the extent required, by the requisite
number of shareholders of the COMPANY.
g. The performance by the 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 by-laws of the
COMPANY or any contractual obligation by which the COMPANY may be bound.
h. The COMPANY activities pursuant to this Consulting Agreement or as
contemplated by this Consulting Agreement do not constitute and shall not
constitute acting as a Securities broker or dealer under Federal or State
Securities laws; any contact between the COMPANY and a potential investor in the
COMPANY shall be such that the COMPANY would be acting merely as a finder or as
a consultant with respect to such prospective investor obligations under this
Agreement.
i. The execution and performance of this Consulting Agreement by the
COMPANY has been duly authorized by the Board of Directors of the COMPANY in
accordance with applicable law, and, to the extent required, by the requisite
number of shareholders of the COMPANY.
j. The performance by the COMPANY of this 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 by-laws of THE COMPANY or any
contractual obligation by which the COMPANY may be bound.
k. The COMPANY shall promptly deliver to HCS'S a complete due diligence
package to include the latest 10-Q , last six [6] months of press releases and
all other relevant materials, including, but not limited to corporate reports,
brochures, etc.
l. The COMPANY shall promptly deliver to HCS a list of names and
addresses of all shareholders of the COMPANY which it is aware. This shareholder
list shall be upgraded at HCS'S request. The COMPANY agrees to furnish to HCS a
copy of all DTC sheets on a weekly basis.
m. The COMPANY shall promptly deliver to HCS a list of all brokers and
market makers of the COMPANY'S Securities, known to the COMPANY, which have been
following the COMPANY.
n. Because HCS will rely on such information to be supplied by the
COMPANY, all such information shall be true, accurate, complete and not
misleading, in all respects.
o. The COMPANY shall act diligently and promptly in reviewing materials
submitted to it by HCS to enhance timely distribution of the materials and shall
inform HCS of any inaccuracies contained therein within a reasonable time prior
to the projected or known publication date.
p. The execution and performance of this Consulting Agreement by HCS
has been duly authorized by the Board of Directors of HCS in accordance with
applicable law, and, to the extent required, by the requisite number of
shareholders of HCS.
q. The performance by HCS 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 by-laws of HCS or any
contractual obligation by which HCS may be bound.
r. HCS'S activities pursuant to this Consulting Agreement or as
contemplated by this Consulting Agreement do not constitute and shall not
constitute acting as a Securities broker or dealer under Federal or State
Securities laws; any contact between HCS and a potential investor in the COMPANY
shall be such as that HCS would be acting merely as a finder or consultant with
respect to such prospective investor.
13. COMPENSATION
a. Compensation payable to HCS for all general investor relations
services and other services hereunder, including but not limited to acquisition
and merger services, shall be paid by the COMPANY to HCS by the means and in the
manners as described in "Addendum A", a copy of which is attached hereto and
incorporated herein by this reference.
b. All monies payable hereunder shall be in U. S. funds and drawn on U.
S. banks. The parties acknowledge that in negotiating this fee they recognized
that the services will probably not be performed in equal monthly segments, but
may be substantial during the earlier portion of the term and less thereafter as
relationships and communication lines are established. Thus, part of the
compensation for earlier services will be deferred and therefore any lessening
of services shall not constitute a breach or termination hereof and the level
fee shall continue.
c. For all special services, not within the scope of this Consulting
Agreement, the COMPANY shall pay to HCS such fee[s] as, when, the parties shall
determine in advance of performance of said special services, provided the
COMPANY has agreed to said special services.
14. BILLING AND PAYMENT
Monthly fees or payments shall be due and payable without billing. Billing and
payments for special services shall be as agreed on a case to case basis. The
COMPANY acknowledges and agrees that deposits, initial payments, down payments,
partial payments, payments for special services, monthly fees or monthly
payments shall be by wire to HCS'S bank account upon execution of any agreement
or agreements, or; upon payment due date in the case of monthly fees or monthly
payments, or; in the case of special services by the first day of the preceding
month that work is scheduled to be performed, unless expressly provided
otherwise in writing, and that if such funds are not received by HCS by said
date the COMPANY shall pay to HCS an additional operations charge equal to one
percent [1%] for each day said funds are not received.
15. HCS AS AN INDEPENDENT CONTRACTOR
HCS shall provide said services as an independent contractor, and not as an
employee of the COMPANY or of any company affiliated with the COMPANY. HCS has
no authority to bind the COMPANY or any affiliate of the 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 the COMPANY; thereby becoming
the sole responsibility of HCS. HCS is not entitled to any medical coverage,
life insurance, savings plans, health insurance, or any and all benefits
afforded the COMPANY employees. HCS shall be solely responsible for any Federal,
State, or Local taxes, and should the COMPANY for any reason be required to pay
taxes at a later date, HCS shall reassure such payment is made by HCS, and not
by the COMPANY. HCS shall be responsible for all workers compensation payments
and herein holds the COMPANY harmless for any and all such payments and
responsibilities related hereto.
16. HCS NOT TO ENGAGE IN CONFLICTING ACTIVITIES
During the term of this Consulting Agreement, HCS shall not engage in any
activities that directly conflicts with the interests of the COMPANY. The
COMPANY hereby acknowledges notification by HCS and understands that HCS does,
and shall, represent and service other and multiple clients in the same manner
as it does the COMPANY, and that the COMPANY is not an exclusive client of HCS.
17. TRADE SECRETS AND INVENTIONS
HCS shall treat as proprietary any and all information belonging to the COMPANY,
its affiliates, or any third parties, disclosed to HCS in the course of its
performance of HCS services. HCS assigns and agrees to assign the COMPANY or its
nominee all rights in invention and or other proprietary information conceived
by HCS during the term of this Consulting Agreement with respect to any and all
work performed under said Agreement.
18. INSIDE INFORMATION -- SECURITIES VIOLATIONS
In the course of the performance of this Consulting Agreement it is expected
that specific sensitive information concerning the operations of the COMPANY'S
business, and/or affiliate companies shall come to the attention and knowledge
of HCS. In such event HCS will not divulge, discuss, or otherwise reveal such
information to any third parities.
19. DISCLOSURE
HCS is required to disclose any outside activities or interests, including
ownership or participation in the development of prior inventions, that conflict
or may conflict with the best interests of the COMPANY. It is mutually
understood that prompt disclosure is required under this paragraph if the
activity or interest is related, directly or indirectly, to any activity HCS may
be involved with on behalf of the COMPANY.
20. WARRANTY AGAINST CONTEMPLATION OF AGREEMENT RELATED CORRUPT PRACTICES
HCS represents and warrants that all payments and other valuable considerations
paid or to be paid under this Consulting Agreement constitutes compensation for
services rendered; that this Consulting Agreement and all payments and other
valuable considerations and the use of those payments and other valuable
considerations are non-political in nature; and that said payments and other
valuable considerations do not influence, sway or bribe any government or
municipal party, either domestic or foreign, in any way.
21. 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 and amendments are made in writing and signed
by both parties.
22. SEVERABILITY
If any provision of this Consulting Agreement shall be held to the 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.
23. TERMINATION OF AGREEMENT
This Consulting Agreement may not be terminated by either party prior to the
expiration of the term provided in Paragraph eight [8] above, except as follows:
a. Upon the bankruptcy or liquidation of the other party; whether
voluntarily or involuntarily;
b. Upon the other party taking the benefit of any insolvency law;
and/or
c. Upon the other party having or applying for a receiver appointed for
either party;
d. As provided for in Paragraph twenty-eight [28] below.
24. ATTORNEY FEES
In the event either party is in default of the terms or conditions of this
Consulting Agreement and legal action is initiated or suit be entered as a
result of such default, the prevailing party shall be entitled to recover all
costs incurred as a result of such default, including all costs, reasonable
attorney fees, expenses and court costs through trial, appeal and to final
disposition.
25. RETURN OF RECORDS
Upon termination of this Consulting Agreement, HCS shall deliver any and all
records, notes, data, memorandum, models and equipment of any nature that are in
control of HCS that are the property of or relate to the business of the
COMPANY.
26. 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 effect such party's right subsequently to
require full performance hereunder.
27. DISCLAIMER BY HCS
HCS shall be the preparer of certain promotional materials, and; HCS makes no
representation to the COMPANY or others that; [a] its efforts or services will
result in any enhancement to the COMPANY [b] the price of the COMPANY'S publicly
traded Securities will increase [c] any person will purchase the COMPANY'S
Securities, or [d] any investor will lend money to and/or invest in or with the
COMPANY.
28. EARLY TERMINATION
In the event the COMPANY fails or refuses to cooperate with HCS, or fails or
refuses to make timely payment of the compensation set forth above and/or in
"Addendum A" , HCS 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 HCS shall be entitled to receive and retain the same 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 HCS'S damages, but that the receipt and retention of such compensation is a
reasonable present estimate of such damage.
29. LIMITATION OF HCS LIABILITY
In the event HCS fails to perform its work or services hereunder, its entire
liability to the COMPANY shall not exceed the lesser of; [a] the amount of cash
compensation HCS has received from the COMPANY under Paragraph thirteen [13]
above; [b] the amount of cash compensation HCS has received from the COMPANY
under "Addendum A"; or [c] the actual damage to the COMPANY as result of
non-performance. In no event shall HCS be liable to the COMPANY for any
indirect, special or consequential damages, nor for any claim against the
COMPANY by any person or entity arising from or in any way related to this
Consulting Agreement.
30. OWNERSHIP OF MATERIALS
All rights, title and interest in and to materials to be produced by HCS in
connection with this Consulting Agreement and other services to be rendered
under said Consulting Agreement shall be and remain the sole and exclusive
property of HCS, except in the event the COMPANY performs fully and timely its
obligations hereunder; the COMPANY shall be entitled to receive, upon written
request, one [1] copy of all such materials.
31. AGREEMENT NOT TO HIRE
The COMPANY understands and appreciates that HCS invested a tremendous amount of
time, energy and expertise in the training of its employees and education of its
sub contractors to be able to provide the very services the COMPANY desires. The
COMPANY further understands that in the event an employee or sub contractor of
HCS is enticed to leave, then HCS shall be damaged in an amount to the parties
are incapable of calculating at the present time. Therefore, the COMPANY agrees
not to offer employment or sub contractor status to any employee or sub
contractor of HCS, nor to allow any employee, officer, director, shareholder, or
consultant of the COMPANY to offer such employment or sub contractor status with
the COMPANY or any other company, concern, venture or entity with whom officers
directors, or consultants of the COMPANY are employed, associated or hold a
financial stake in for a period of three [3] years from the date of expiration
or termination hereof. Further, in the event an employee or sub contractor of
HCS leaves the employ of or dissolves or breaks association with HCS and
subsequently establishes employment or association of any kind with another
investor relations or other type of competing firm of HCS, the COMPANY agrees
not to do business with such other investor relations or competing firm for a
period of three [3] years from the date of expiration or termination hereof.
32. MISCELLANEOUS
a. Effective date of representations shall be no later than the date of
execution by the parties of this Consulting Agreement.
b. Currency; In all instances, references to dollars shall be deemed to
be United States Dollars.
c. Stock; In all instances, reference to stock shall be deemed to be
unrestricted and free trading.
33. 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 overnight courier services. Notices shall
be deemed given upon the earlier of actual receipt 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.
34. FIRST RIGHT OF REFUSAL ON INVESTMENT BANKING SERVICES
The parties agree that during the term of this Consulting Agreement, HCS shall
have first right of refusal to provide the COMPANY with any fund raising and/or
investment banking services, provided that HCS has the ability to provide the
same or equivalent services needed or requested by the COMPANY, and at a
compensation to HCS equal to, or in a lesser amount, than which the COMPANY can
obtain said services from another alternative provider. HCS shall have five [5]
days upon written notice from the COMPANY in which to match or exceed such
requested services at a compensation rate equal to or less than offered by an
other alternative provider of said services.
35. PARENT AND SUBSIDIARY COMPANIES OR ENTITIES
This consulting Agreement applies to all parent or subsidiary companies or
entities of the COMPANY.
36. EXCLUSIVE 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 executing of this Consulting Agreement,
any liability for the commitments of any other party of any type, kind or sort.
37. TRAVEL COMPENSATION AND REIMBURSEMENT
In the course of HCS providing services necessary hereunder, on behalf of or for
the COMPANY during the term of this Consulting Agreement, the COMPANY shall pay
to, or reimburse HCS for any travel expenses incurred by HCS that are not
specifically described elsewhere herein, provided that the COMPANY has been
notified in advance by HCS of the nature and the cost of any such required
travel and the amount of travel compensation and/or reimbursement related
thereto. Travel expenses shall be deemed to include, but not limited to,
transportation expenses hotel expenses, airline fares, taxi fares, toll road
fees, reasonable food expenses and reasonable gratuities related thereto. The
COMPANY shall have the right to book airline reservations, hotels, etc., itself
on behalf of HCS within five [5] days upon written notice for the requirement
thereof from HCS.
38. TIME IS OF THE ESSENCE
Time is hereby expressly made of the essence of this Consulting Agreement with
respect to the performance by the parties of their respective obligations
hereunder.
39. ENUREMENT
This Consulting Agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective heirs, executors, administrators, personal
representatives, successors, assigns and any addendas attached hereto.
40. 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 understandings between them affecting this Consulting
Agreement, or relating to the business of HCS. This Agreement supersedes all
previous agreements between HCS and the COMPANY.
41. APPLICABLE LAW
This Agreement is executed pursuant to and shall be interpreted and governed for
all purposes by the laws of the State of Florida for which the Courts in
Seminole County, Florida shall have jurisdiction. If any provision of this
Consulting Agreement is declared void, such provision shall be deemed severed
from this Consulting Agreement, which shall otherwise remain in full force and
effect.
42. ACCEPTANCE BY HCS
This Consulting Agreement is not valid or binding upon HCS unless and until
executed by its President or other duly authorized executive officer of HCS at
its home office in Altamonte Springs, Florida.
43. EXECUTION IN COUNTERPART; TELECOPY - FACSIMILE
This Consulting Agreement may be executed in counterparts, not withstanding the
date or dates upon which this Consulting Agreement is executed and delivered by
any of the parties, and shall be deemed to be an original and all of which will
constitute one and the same Agreement, effective as of the reference date first
written above. The fully executed telecopy [facsimile] version of this
Consulting Agreement shall be construed by all parties hereto as an original
version of said Consulting Agreement.
44. DISCLAIMER
HCS is in the business of investor/public relations and other related business,
as previously stated above, and in no way proclaims to be an investment advisor
and/or stock or Securities broker. HCS is not licensed as a stock or Securities
broker and is not in the business of selling such stocks or Securities or
advising as to the investment viability or worth of such stocks or Securities.
IN WITNESS WHEREOF, the parties hereto have set their hands in execution of this
Consulting Agreement
For and in behalf of: the COMPANY: For and in behalf of: HCS
By: _________________________________ By: _________________________________
Xxxxx X. Xxxxx / President
Title: ______________________________
Date __________________________ Date ____________________________
CONSULTING AGREEMENT
ADDENDUM "A"
[A.] The COMPANY acknowledges and agrees HCS shall not provide or continue to
provide services until all such fees are paid. The COMPANY acknowledges that it
has verified with its Corporate Council, Accountants, Corporate Officers, Board
of Directors, Executive decision makers, and appropriate stock exchanges that
said stock can, in fact, be timely delivered to HCS as agreed.
[B.] VALUABLE COMPENSATION DUE HCS - Total dollar value;
Sixty thousand dollars [$60,000.00]
SEE PAGE TWO OF ADDENDUM "A"
For and in behalf of: the COMPANY: For and in behalf of: HCS
By: _________________________________ By: _________________________________
Xxxxx X. Xxxxx / President
Title: ______________________________
Date __________________________ Date ____________________________
CONSULTING AGREEMENT
ADDENDUM "A"
[1.] It is mutually agreed by and between the parities hereto that in the event
HCS opts or agrees to accept the COMPANY'S stock, either now or in the future,
as full or partial payment for any part or portion of HCS's compensation or fee
under this Consulting Agreement, that the number of shares necessary for such an
equal value alternative compensation shall be determined pursuant to a formula
or computation that discounts the stock from the bid price at a rate of one
hundred percent [100%] based solely on the ten [10] day previous average bid
price as of the date of execution of this Consulting Agreement, or such other
subsequent written agreement to accept said stock as alternative compensation.
[2.] In the event the price of the stock declines before HCS is in receipt of
said stock, the COMPANY agrees to increase the number of shares accordingly in
order to appropriately maintain the agreed upon equal dollar value compensation
as determined by the applicable formula or computation as specified and provided
for herein above.
[3.] The COMPANY agrees that in the event the stock has not been received in
HCS'S account within ten [10] days of the date of execution of this Consulting
Agreement or any subsequent written agreements related hereto, the COMPANY shall
pay to HCS in U. S. funds, an additional amount equal to five percent [5%] of
such equal value alternative compensation as liquidation damages. This shall
continue for each and every ten [10] day period said stock is not received by
HCS. Said funds to be wired to HCS'S account, without notice, within three [3]
days of any such default.
[4.] The COMPANY acknowledges and agrees HCS shall not provide or continue to
provide services until all such fees are paid. The COMPANY acknowledges that it
has verified with its Corporate Council, Accountants, Corporate Officers, Board
of Directors, Executive decision makers, and appropriate stock exchanges that
said stock can, in fact, be timely delivered to HCS as agreed.
[5.] VALUABLE COMPENSATION DUE HCS - Total U.S. dollar value:
Sixty thousand dollars [$60,000.00]
SEE ADDENDUM "B" OPTIONS
For and in behalf of: the COMPANY: For and in behalf of: HCS
By: _________________________________ By: _________________________________
Xxxxx X. Xxxxx / President
Title: ______________________________
Date __________________________ Date ____________________________
