EXHIBIT 4.12
INDEPENDENT CONTRACTOR FEE/CONSULTING AGREEMENT
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THIS AGREEMENT is made and entered into on February 17, 2004 by and between
NanoSignal Corporation, a Nevada corporation ("NNOS") and Xxxxx XxXxx, a
resident of Atlanta, GA ("XxXxx").
RECITALS
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WHEREAS, NNOS is a public company trading on the OTCBB under the symbol
"NNOS"; and
WHEREAS, XxXxx is knowledgeable in the areas of business operations of NNOS
and possesses skills and experience in mergers and acquistions and business
strategies;
WHEREAS, XxXxx has provided valuable assistance and advice regarding
American Stock Exchange and other exchanges upon the shares of NNOS may become
listed;
WHEREAS, NNOS wishes to engage XxXxx on a non-exclusive basis as an
independent contractor to continue utilizing his skills, business experience,
and his business knowledge to assist in completing certain strategic business
plans of NNOS to complete an asset roll-up and AMEX merger;
WHEREAS, NNOS and XxXxx intend that this Agreement and the services
performed hereunder shall be made, requested and performed in such a manner that
this Agreement shall be a "written compensation agreement" as defined in Rule
405 of the Securities and Exchange Commission ("Commission") pursuant to which
NNOS may issue "freely tradeable" shares (except as may be limited by
"affiliate" status) of its common stock as payment for services rendered
pursuant to an S-8 Registration Statement to be filed with the Commission by
NNOS; and
WHEREAS, XxXxx 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. NNOS hereby retains and engages XxXxx to perform the
following consulting services (the "Consulting Services"):
1.1 Duties of XxXxx. XxXxx will continue to help NNOS evaluate the AMEX
merger possibilities and assist in the reorganization of the company's
management. XxXxx will
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also provide such services and advice to NNOS so as to assist NNOS with matters
relating to acquisition targets for NNOS and advise and administer the structure
of any such mergers or other acquisitions. Without limiting the generality of
the foregoing, XxXxx will also assist NNOS in administering, studying and
evaluating acquisition proposals, review reports and studies thereon when
advisable, and assist in negotiations and discussions pertaining thereof.
Nothing contained herein constitutes a commitment on the part of XxXxx to find
an acquisition target for NNOS or, if such target is action will be completed.
XxXxx will assist NNOS in creating its business development and business
strategy as well as marketing strategies.
2. Duties Expressly Excluded. This Agreement expressly excludes XxXxx from
providing any and all capital formation and/or public relation services to NNOS
inclusive of but not limited to (i) direct or indirect promotion of NNOS's
securities; (ii) assistance in making of a market in NNOS's securities; and
(iii) assistance in obtaining debt and/or equity financing. XxXxx shall not have
the power of authority to bind NNOS to any transaction without NNOS's prior
written consent.
3. Term. All services performed at the request of NNOS by XxXxx shall have
been performed within 180 days from the date hereof, at which time this
Agreement shall terminate, unless otherwise provided herein; provided, however,
this Agreement may be extended for an additional 180 day period by written
agreement of NNOS and any of the Consultants.
4. Consideration. NNOS and XxXxx agree that XxXxx shall receive from NNOS a
fee consisting of the following:
A. 3,000,000 shares of NNOS's unrestricted common stock shares of the
NNOS's Common Stock, par value $0.01 per share (the "Common Stock"), covered by
a registration statement of the Company under the Securities Act of 1933, as
amended (the "Act"), on Form S-8 (the "S-8 Registration Statement") to be
prepared by NNOS at its expense and filed by NNOS with the SEC via XXXXX as soon
as practicable. NNOS covenants that the S-8 Registration Statement shall be kept
effective until such time as all of the S-8 shares have been sold pursuant
thereto. NNOS hereby further agrees to exert its best efforts to cause as
expeditiously as is practicable all of the S-8 shares to be certificated and
credited by the Depository Trust Company ("DTC") to the securities brokerage
account of Consultant specified by Consultant. These shares shall be paid in
advance, as consideration for the services already rendered or to be rendered
pursuant to this Agreement. These shares shall be issued immediately.
5. Expenses. XxXxx shall bear his out-of-pocket costs and expenses incident
to perform the Consulting Services, without a right of reimbursement from NNOS
unless such expenses are pre-approved by NNOS.
6. XxXxx Liability. In the absence of gross negligence or willful
misconduct on the part of XxXxx or XxXxx breach of any terms of this Agreement,
XxXxx shall not be
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liable to NNOS or to any officer, director, employee, stockholder or creditor of
NNOS, 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 XxXxx
or the breach by XxXxx of any terms of this Agreement is alleged and proven,
NNOS 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 XxXxx) which may in any way result from services rendered
by XxXxx 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 NNOS made by XxXxx without the prior approval
or authorization of NNOS.
7. NNOS's Liability. XxXxx agrees to defend, indemnify and hold NNOS
harmless from an against any and all reasonable costs, expenses and liability
(including reasonable attorney's fees paid in defense of NNOS) 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 NNOS without
the prior approval or authorization of NNOS or which are otherwise in violation
of applicable law.
8. Representations. XxXxx makes the following representations:
X. XxXxx has no prior or existing legally binding obligations
that are in conflict with his entering into this Agreement;
X. XxXxx 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 NNOS's securities;
X. XxXxx is not currently the subject of an investigation or
inquiry by the Securities and Exchange Commission, the NASD,
or any state securities Commission;
X. XxXxx activities and operations fully comply with now and will
comply with in the future all applicable state and federal
securities laws and regulations;
X. XxXxx agrees to reasonably to insure that neither he nor his
employees, agents, or affiliates, trade in the securities of
client companies while in possession of material non-public
information;
F. During the term of this Agreement and for a period of two
years thereafter, XxXxx shall treat as NNOS's confidential
trade secrets all data, information, ideas, knowledge and
papers pertaining to the affairs of
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NNOS. Without limiting the generality of the foregoing, such
trade secrets shall include: the identity of NNOS's customers,
suppliers and prospective customers and suppliers; the identity
of NNOS's creditors and other sources of financing, NNOS's
estimating and costing procedures and the costs and gross
prices charged by NNOS for its products, the prices or other
consideration charged to or required of NNOS by any of its
suppliers or potential suppliers; NNOS's sales and promotional
policies; and all information relating to entertainment
programs or properties being developed or otherwise developed
by NNOS. XxXxx shall not reveal said trade secrets to others
except in the proper exercise of his duties for NNOS, or use
their knowledge thereof in any way that would be detrimental to
the interest of NNOS, 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
XxXxx, or (iii) required to be disclosed by XxXxx pursuant to
judicial or governmental order. XxXxx shall also treat all
information pertaining to the affairs of NNOS's suppliers and
customers and prospective suppliers and customers as
confidential trade secrets of such customers and suppliers and
prospective customers and suppliers.
9. NNOS's Representations. NNOS makes the following representations:
A. NNOS is not currently the subject of an investigation or
inquiry by the Securities and Exchange Commission, the NASD,
or any state securities Commission; and
B. NNOS is in good standing in its state of incorporation.
10. Entire Agreement. This Agreement embodies the entire agreement and
understanding between NNOS and XxXxx 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 NNOS (except by operation of law or
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merger) but shall be freely assignable by XxXxx; and it shall be binding upon
and inure to the benefits of the parties and their respective successors,
assigns and legal representatives.
13. Governing Law and Attorney's Fees. In the event there is a dispute
regarding this Agreement, it shall be governed by Nevada law. Should litigation
arise in regard to this Agreement, the prevailing party shall be entitled to
costs and the attorney's fees actually incurred. The term "prevailing party" as
used in this paragraph means the party that is entitled to recover costs of
suit.
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. 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.
16. 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.
17. 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.
18. 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.
19. 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.
IN WITNESS WHEREOF, the parties hereto duly execute this Agreement as of
the date first written above.
NanoSignal Corporation Xxxxx XxXxx
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxx XxXxx
Authorized Corporate Signatory Xxxxx XxXxx
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