CONSULTING AGREEMENT
This
Consulting Agreement (“the agreement “), effective as of Friday, February 09,
2007 which is entered into and by and between The Small Business Company ,
a
Delaware Corporation (herein referred to as the company) and A.S. Austin company
a (“herein referred to as the consultant”)
RECITALS
WHEREAS,
company
is a
publicly- held corporation with its stock traded on the OTC BB Markets
and,
WHEREAS,
Company
desires to engage the services of consultant to represent the company in the
areas of investor’s communications and public relations with existing
shareholders, brokers, dealers, and other investment professionals as to the
company’s current and proposed activities, and to consult with management
concerning such Company activities.
NOW
THEREFORE, In
Consideration of the promises and the mutual covenant and agreements hereinafter
set forth, the parties hereto covenant and agree as follows:
| 1. |
Term
of Consultancy,
Company
hereby agrees to retain the consultant to act in a consulting capacity
to
the company and the consultant hereby agrees to provide services
to the
company commencing on Friday,
February 09, 2007 and extending until February 08,
2008.
|
| 2. |
Duties
of Consultant,
The
consultant agrees that it will generally provide the following services
through its officers and employees during the term specified in section
1:
|
| a. |
Consult
and assist the company in developing and implementing appropriate
plans
and means for presenting the company and its business plans, strategy
and
persona.
|
| b. |
Introduce
the company to the financial
community.
|
| c. |
With
the cooperation of the company, maintain an awareness during the
term of
this Agreement of the company’s plans, strategy and personal, as they may
evolve during such a period, and consult and assist the company in
communicating appropriate information regarding such plans, strategy
and
personnel to the financial community;
|
| d. |
Assist
and consult the company with respect to its (i) relations with
stockholders (ii) relations with brokers, dealers, analysts and other
investment professional, and (iii) financial public
generally;
|
| e. |
Perform
the functions generally assigned to stockholder relations and public
relations departments in major corporations, including responding
to
telephone and written inquiries (which may be referred to the consultant
by the company); assisting in the preparation of press releases for
the
company with the company’s involvement and approval of all press releases,
reports and communications with or to shareholders, the investment
community and the general public; consulting with respect to the
timing,
form, distribution and other matters related to such releases, reports
and
communications; and at the company’s request and subject to the company’s
securing its own rights to the use of its names, marks, and logos,
consulting with respect to corporate symbols, logos, names, the
presentation of such symbols, logos and other matters relating to
corporate image.
|
| f. |
Upon
the company’s direction and approval, disseminate information regarding
the company to shareholders, brokers, dealers, and other investment
community professional and the general investing
public.
|
| g. |
Upon
the company’s approval conduct meetings, in person or by the telephone,
with , brokers, dealers, analyst and other investment professionals
to
communicate with them regarding the company’s plans, goals and activities
the company in preparing for press conferences and other forums involving
the media, investment professionals and the general investment
public.
|
| h. |
At
the company’s request , review business plans, strategies, mission
statements budgets, proposed transactions and other plans for the
purpose
of advising the company of the public relations implications thereof;
and
|
| i. |
Otherwise
perform as the company’s consultant for public relations with the
financial professionals.
|
| 3. |
Allocation
of Time and Energies.
The
consultant herby promises to perform and discharge faithfully the
responsibilities which may be assigned to the consultant from time
to time
by the officers and dully authorized representatives of the company
in
connection with the conduct of its public relations and communication
activities, so long as such activities are in compliance with the
applicable securities laws and regulations. Consultant and staff
shall
diligently and thoroughly provide the consulting services required
hereunder. Although no specific hours-per day requirement will be
required, consultant and the company agree that consultant will perform
the duties set forth herein above in a diligent and professional
manner.
The parties acknowledge and agree that a disproportionately large
amount
of the effort to be expended and the cost to be incurred by the consultant
and the benefits to be received by the company are expected to occur
within or shortly after the first two months of the effectiveness
of this
Agreement. It is explicitly understood that consultant’s performance of it
duties hereunder will in no way be measured by the price of the company’s
common stock nor the trading volume of the company’s common stock. It is
also understood that the company is entering into this agreement
with
A.S.
Austin Company
or
Xxxxxx
X. Xxxxxx (ASA)
a
Nevada Corporation and not any individual member of ASA
and
as such , consultant will
not be deemed to have breached this Agreement if any member, officer
or
director of ASA
leaves
the firm or dies or becomes physically unable to perform any meaningful
activities during the term of this agreement, provided the consultant
otherwise performs its obligation under this Agreement.
|
| 4. |
Remuneration.
As
full and complete compensation for services in this agreement, the
company
shall compensate ASA
as
follows:
|
4.1
For
undertaking this engagement and for other good and valuable consideration,
the
company agrees to Issue to the consultant a “Commencement Bonus” of 300,000
shares
of the company’s common stock (Common Stock) to be delivered to consultant
within five (5) business days of Friday,
February 09, 2007.
This
commencement bonus shall be issued to the consultant immediately following
the
execution of this agreement and shall, when issued and delivered to consultant,
be fully paid and non-assessable. The company understands and agrees that
consultant has foregone significant opportunities to accept this engagement
and
that the company derives substantial benefits from the execution of this
agreement and the ability to announce its relationship with consultant. The
300,000
shares
of common stock issued as a Commencement Bonus, therefore, constitute payments
for consultant’s agreement to consult to the company and are nonrefundable,
non-apportionable, and non-ratable retainer, such shares of common stock are
not
a prepayment for future services. If the company decides to terminate this
Agreement prior to
Friday, February 09, 2008 for
any
reason whatsoever, it is agreed and understood that consultant will not be
requested or demanded by the company to return any of the shares of common
stock
paid to it as Commencement Bonus hereunder. Further if and in the event the
company is acquired in whole or in part, during the term of this agreement,
it
is agreed and understood consultant will not be requested or demanded by the
Company to return any of the 300,000
shares
of common stock paid to it hereunder. It is further agreed that if at any time
during the term of this agreement, the company or substantially all of the
assets are merged with or acquired by another entity, or some other change
occurs in the legal entity that constitutes the company, the consultant shall
retain and will not be requested by the company to return any of the
300,000
shares,
(Commencement Bonus)
4.2
With
each transfer of shares of the common stock to be issued pursuant to this
agreement ( Collectively, the “shares”), company shall cause to be issued a
certificate representing the common stock and a written Opinion of counsel
for
the company stating that said shares are validly issued fully paid and non
assessable and that the issuance and eventual transfer of them to consultant
has
been dully authorized by the company. Company shares issued to consultant
pursuant to this agreement shall have been validly issued, fully paid and
non-assessable and that the issuance and any transfer of them to consultant
shall have been duly authorized by the company’s board of
directors.
4.3
Consultant acknowledges that the shares of common stock to be issued pursuant
to
this Agreement (Collectively the “Shares”) have not been registered under the
securities Act of 1933, and accordingly are “restricted securities” within the
meaning of Rule 144 of the act. As such, the shares may not be resold or
transferred unless the company has received an opinion of counsel reasonably
satisfactory to the company that such resale or transfer is exempt from the
registration requirements of the Act.
4.4
Grant
of Warrants. The company shall grant and deliver to A.S.Austin Company warrants
(the Warrants) to purchase up to 700,000
shares
of the common stock (the Common Stock). Such warrants to be granted ratably
over
the term of this Agreement on the first day of each Calendar Month. The warrants
shall be exercisable at any time or from time to time commencing on
The
grant
date at an exercise price of $0.20 per share, (Twenty Cents (US)) subject to
customary stock splits and the like and payable in cash (including check, bank
draft or money order).
4.5
In
connection with the acquisition of the shares, hereunder, the consultant
represents and warrants to the company, to the best of its/his knowledge, as
follows.
| a. |
Consultant
acknowledges that the consultant has been afforded the opportunity
to ask
questions of and receive answers from duly authorized officers and
other
representatives of the company concerning an investment in the shares
and
any additional information which the consultant has
requested.
|
| b. |
Consultant’s
investment in restricted securities is reasonable in relation to
the
consultant’s net worth, which is in excess of ten (10) times the
consultant’s cost basis in shares. Consultant has had experience in
investments in restricted and publicly traded securities, and consultant
has had experience in investments in speculative securities and other
investments which involve the risk of loss of investments. Consultant
acknowledges that an investment in the shares is speculative and
involves
the risk of loss. Consultant has the request knowledge to assess
the
relative merits and risk of this investment without the necessity
of
relying upon other advisors, and consultant can afford the risk of
loss of
his entire investment in the shares. Consultant is (i) an accredited
investor as that term is defined in Regulation D promulgated under
the
Securities Act of 1933, and (ii) a purchaser described in section
25102(f)
(2) of the California Corporate Securities Law of 1968, as
amended.
|
| c. |
Consultant
is acquiring the shares for the consultants own account for long
-term
investment and not with a view toward resale or distribution thereof
except in accordance with applicable
laws.
|
4.6
Additionally, for a period of two years after the effective date hereof, should
the company make any public offering of its securities pursuant to an effective
registration statement under the securities act of 1933 or 1934 as amended?
Consultant shall be entitled, and the company agrees to include in such
registration any or all of the common stock given to consultant by the company
as consideration hereunder (commonly referred to as “Piggyback Registration
Rights”). Such piggyback registration rights include, at the consultants option
registration on Form S-1. All such registration rights shall be subject to
customary market stand - off and underwriter cutback provisions.
| 5. |
Non-Assignably
of services;
Consultant’s services under this contract are offered to company only and
may not be assigned by company to any entity with which company merges
or
which acquires the company or substantially all or its assets. In
the
event of such merger or acquisition, all compensation to consultant
herein
under the schedules set forth herein remain due and payable, and
any
compensation received by the consultant may be retained in the entirely
by
consultant, all without any reduction or pro-rating and shall be
considered and remain fully paid and non-assessable.
|
Not
withstanding the non-assignability of consultants services, company shall assure
that in the event of any merger, acquisition or similar change in form of
entity, that its successor entity shall agree to complete all obligation to
consultant, including the provision and transfer of all compensation herein,
and
the perseveration of the value thereof consistent with the rights granted to
consultant by the company herein, and to shareholders.
7.
Expenses:
Consultant agrees to pay for all its expenses (phone, mailing, labor, etc.)
other than extraordinary items (travel required bi/or specifically requested
by
the company, luncheons or Dinners to large groups of investments professionals,
mass faxing to a sizable percentage of the company’s constituents, investor
conference calls, print advertisements in publications, etc.) approved by the
company prior to its incurring an obligation for reimbursement.
8.
Indemnification
The
Company warrants and represents that all oral communications written documents
or material furnished to consultant by the company with respect to financial
affairs operations profitability and strategic planning of the company are
accurate and consultant may rely upon the accuracy thereof without independent
investigation. The company will protect, indemnify and hold harmless consultant
against any claims or litigation including any damages, liability, cost, and
reasonable attorneys fees as incurred with respect thereto resulting from
consultants communication or dissemination of any said information, documents
or
materials excluding any such claims or litigation resulting from consultants
communication or dissemination of information not provided or authorized by
the
company.
9.
Representations
Consultant
represents that it is not required to maintain any licenses and registrations
under federal or any state regulations necessary to perform the services set
forth herein. Consultant acknowledges that to the best of its knowledge the
performance of services set forth under this agreement will not violate any
rule
or provision of any regulatory agency having jurisdiction over consultant.
Consultant acknowledges that to the best of its knowledge, consultant and its
officers and directors are not subject to any investigation, claim, decree
or
judgment involving and violation of the SEC or securities laws. Consultant
further acknowledges that it is not a security Broker Dealer or a registered
investment advisor. Company acknowledges that to the best of its knowledge
that
it has not violated any rule or provision of any regulatory agency having
jurisdiction over the company. Company acknowledges that to the best of its
knowledge company is not the subject of any investigation, claim, degree or
judgment involving any violation of the SEC or securities laws.
10.
Legal
Representations The
Company acknowledges that it has been represented by independent legal consul
in
the preparation of the agreement. Consultant represents that it has consulted
with independent legal counsel and /or tax, financial and business advisors
to
the extent the consultant deemed necessary.
11.
Status
as Independent Contractor Consultant’s
engagement pursuant to this agreement shall be as independent contractor, and
not as an employee, officer or other agent of the company. Neither party to
this
agreement shall represent or hold itself out to be the employer of the other.
Consultant further acknowledges the consideration provided herein above is
a
gross amount of consideration and that the company will not withhold from such
consideration any amounts as to income taxes, social security payments or any
other payroll taxes. All such income taxes and other such payment shall be
made
or provided for by Consultant and the Company shall have no responsibility
or
duties regarding such matters. Neither the company or the Consultant possess
the
authority to bind each other in any agreements without the express written
consent of the entity to be bound.
12.
Attorney’s
Fee
If any
legal action or any arbitration or other proceeding is brought for the
enforcement of interpretation of this Agreement or because of an alleged
dispute, breach, default or misrepresentation in connection with or related
to
this agreement the successful or prevailing party shall be entitled to recover
reasonable attorneys fees and other cost in connection with that action or
proceeding in addition to any other relief to which it or they may be
entitled.
13.Waiver:
The
waiver by either of a breach or any provision of this Agreement by the other
party shall not operate or be construed as a waiver of any subsequent breach
by
such other party.
14.
Notices:
All
notices, requests and other communications hereunder shall be deemed to be
duly
given if sent by U.S. postage prepaid, addressed to the other party at the
address set forth herein below.
Company:
Contact
Person: Xxxxxx Xxxxxxxxx, President & CEO
Address:
000 Xxx Xx xx Xxxxx, Xxxxx 000
Xxxx:
Xxxxxx Xxxxx, Xx 00000
Consultant:
A.S.
Austin Company/ Xxxxxx X. Xxxxxx
0000
Xxxxxxx Xxxx # 000-000
Xx
Xxxxx,
Xx 00000
It
is
understood that either party may change the address to which notices for it
shall be addressed by providing notice of such a change to the other party
in
the manner set forth in this paragraph.
15.
Choice
of Jurisdiction and Venue:
This
agreement shall be governed by, construed and enforced in accordance with the
laws of California. The parties agree that San Diego County, Ca will be the
venue of any dispute and will have jurisdiction over all parties.
16.
Arbitration:
Any
controversy or claim arising out of or relating to this agreement, or the
alleged breach thereof or relating to consultants activities or remuneration
under this agreement shall be binding arbitration in California. In accordance
with the applicable rules of the American Arbitration Association, and judgment
on the award rendered by the arbitrator(s) shall be binding on the parties
and
may be entered in any court having jurisdiction as provided by paragraph 14
herein. The provisions of Title 9 of part 3 of the California Code of Civil
procedure, including section 1283.05 and successor statutes, permitting expanded
discovery proceedings shall be applicable to all disputes that are arbitrated
under this paragraph.
17.
Complete
Agreement: This
Agreement contains the entire agreement of the parties relating to the subject
matter hereof. This Agreement and its terms may not be changed orally but only
by an agreement in writing signed by the party against whom enforcement of
any
waiver, change, modification, extension or discharge is sought.
AGREED
TO:
| “COMPANY “ | ||
| |
|
|
| Date: | By: | |
|
Xxxxxx
Xxxxxxxxx
|
||
|
“CONSULTANT” A.S.
AUSTIN COMPANY
|
||
| |
|
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| Date: Friday, February 09, 2007 | By: | |
|
Xxxxxx
X. Xxxxxx, President |
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