CONSULTING AGREEMENT
This Consulting Agreement (the “Agreement”)
is made as of this 4th day
of January 2010, between Shrink Nanotechnologies, Inc., a Delaware corporation
(the "Company"),
and OTC Investor Source, Inc. (the "Consultant")
and shall be effective upon execution by the Company and the Consultant (the
"Effective
Date"). The Company and the Consultant are collectively
referred to herein as the “Parties.”
1. Services. The
Consultant will provided investor relations, preparation and review of press
releases, marketing, networking, market awareness programs, media placement,
procurement of a third party research report on the Company’s technologies,
creation of one or more corporate videos (“Services”). Consultant
will provide consulting services, as reasonably requested by the Company and as
the Consultant’s schedule permits. Consultation may be
sought by the Company over the telephone, in person, at the Company's offices or
another reasonable location or through written
correspondence. Additionally, Consultant may be requested to attend,
to the extent Consultant’s schedule permits, one or more in person meetings with
other members of the Board or committees or advisory committees of the
Board. Notwithstanding the foregoing, no information, videos or
presentations may be distributed or disseminated in private or public by
Consultant, without review and written approval of the same by the Company, at
its sole and absolute discretion. Any presentations shall also, without
limitation, have such risk factors, disclosure and forward looking statement
cautionary language as are required by the Company from time to
time.
2. Term and
Termination. The term of this Agreement will begin on the
Effective Date of this Agreement and will end on the first year anniversary
(based on a 360 day year containing four (4) ninety (90) day quarterly periods)
of this Agreement or upon earlier termination as provided below (the "Term"). This
Agreement may be terminated at any time upon sixty (60) days written notice by
either party. The Consultant agrees, following the termination of
this Agreement or upon earlier request by the Company, to promptly return all
financial information, due diligence, materials, agreements or agreement drafts,
drawings, tracings, business models or plans or market information, vendor or
vendee information, and all visual or written materials in the Consultant’s
possession that were made available by the Company or its affiliates in
conjunction with the Consultant’s consulting services under this Agreement, or
that were generated by the Consultant in the performance of consulting services
under this Agreement.
3. Compensation. Consultant
shall receive stock based compensation upon entering into this Agreement of
1,740,000 shares (the “Shares”).
All shares are restricted and may only
be issued in accordance with an exemption from registration under the Securities
Act of 1933, as amended (the “Securities
Act”). The Shares are being acquired on an as is basis from
the Company. The Company has made no, and currently makes no warranty
or representation whatsoever as to the present or future value or liquidity
levels of the Shares. The parties acknowledge and agree that any
presumed value provided on a 1099 or in similar tax documents or any dollar
amount valuation of the Company or the Shares as indicated on the Company’s past
or future SEC reports or financial statements, are not necessarily indicative of
the present or future actual value of the Shares.
3.2.1 Consultant
understands that any restricted shares, and the Shares and any securities issued
in respect thereof, shall bear the following legend:
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A
VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. THESE
SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY APPLICABLE
STATE SECURITIES LAWS OR AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE.
3.3 Additional Success
Fees. The Consultant shall not receive any form of success or
finance success based compensation finders or consulting fees and, shall not
take any actions or act in any manner requiring FINRA registration.
3.4 Acknowledgement of Risks
Relating to Shares. Consultant understands and acknowledges
that the shares being received are illiquid and do not vest for a period of time
and certain shares are further subject to forfeiture if this Agreement is
terminated prior to the end of any Term. In addition, the securities
of the Company are generally illiquid and subject a high degree of
risk. Consultant represents that it has the knowledge and experience
to assess the nature of a risk relating to such shares. Consultant
understands therefore, that it is possible that he will not be able to monetize
the value of the shares. Additionally, and without limitation,
Consultant acknowledges that:
3.4.1 the
Shares are “restricted securities” (as such term is defined in Rule 144
promulgated under the Act (“Rule 144”),
and that the Shares may include a restrictive legend, and, that the Shares may
not be able to be sold unless registered with the United States Securities and
Exchange Commission and qualified by appropriate state securities regulators, or
unless the Consultant complies with an exemption from such registration and
qualification (including, without limitation, compliance with
Rule 144);
3.4.2 Consultant
has adequate means of providing for current needs and contingencies, has no need
for liquidity in the investment, and is able to bear the economic risk of an
investment in the Shares offered by the Seller of the size contemplated. The
Consultant represents that he/she has read and reviewed all public filings made
available by each Issuer, with the United States Securities Commission’s XXXXX
filing service (xxx.xxx.xxx) and understands that each Issuer maintains
questionable financial stability. The Consultant represents that
he/she is able to bear the economic risk of the investment and at the present
time could afford a complete loss of such investment;
3.4.3 the
Consultant is an “Accredited Investor” as defined in Regulation D of the
Securities Act or the Consultant, and, directly or indirectly, has sufficient
knowledge and experience in financial and business matters that the Consultant
is capable of evaluating the merits and risks of an investment in the Shares
offered by the Seller and of making an informed investment decision with respect
thereto and has the capacity to protect the Consultant’s own interests in
connection with the Consultant’s proposed investment in the Shares. Consultant
is not acquiring the shares as part of a public solicitation or offering and is
not acquiring said shares with intent to distribute the same;
3.4.4 The
Consultant is acquiring the Shares solely for the Consultant’s own account as
principal, for investment purposes only and not with a view to the resale or
distribution thereof, in whole or in part, and no other person or entity has a
direct or indirect beneficial interest in such Shares other than the Consultant
and its principals.
3.4.5 The
Consultant will not sell or otherwise transfer the Shares without registration
under the Act or an exemption therefrom and fully understands and agrees that
the Purchaser must bear the economic risk of their purchase for an indefinite
period of time because, among other reasons, the Shares have not been registered
under the Securities Act or under the securities laws of any state and,
therefore, cannot be resold, pledged, assigned or otherwise disposed of unless
they are subsequently registered under the Securities Act and under the
applicable securities laws of such states or unless an exemption from such
registration is available.
4. Certain Other
Contracts. Company is aware that Consultant is involved in
several professional engagements with various commercial
entities. The Consultant will not disclose to the Company any
information that the Consultant is obligated to keep secret pursuant to an
existing confidentiality agreement with a third party or otherwise utilize
sources that it is contractually prohibited from utilizing, and nothing in this
Agreement will impose any obligation on the Consultant to the
contrary. The consulting work performed hereunder will not be
conducted on time that is required to be devoted to any other third party. The
Consultant shall not use the funding, resources and facilities of the any other
third party to perform consulting work hereunder and shall not perform the
consulting work hereunder in any manner that would give any third party rights
to the product of such work. The Consultant has disclosed and, during
the Term, will disclose to the President of the Company any conflicts between
this Agreement and any other relevant agreements binding the
Consultant.
5. [Omitted.]
6. Inventions Discovered by the
Consultant While Performing Services Hereunder. The Consultant will
promptly and fully disclose to the President of the Company any invention,
improvement, discovery, process, formula, technique, method, trade secret, or
other intellectual property, whether or not patentable, whether or not
copyrightable (collectively, "Invention")
made, conceived, developed, or first reduced to practice by the Consultant,
either alone or jointly with others, while performing services hereunder,
whether for the Company or any subsidiary or affiliate of the
Company. The Consultant hereby assigns to the Company all of his
right, title and interest in and to any such Inventions. The
Consultant will execute any documents necessary to perfect the assignment of
such Inventions to the Company and to enable the Company to apply for, obtain,
and enforce patents or copyrights in any and all countries on such
Inventions. The Consultant hereby irrevocably designates the
Secretary of the Company as his agent and attorney-in-fact to execute and file
any such document and to do all lawful acts necessary to apply for and obtain
patents and copyrights, and to enforce the Company's or any subsidiary’s or
affiliates’ rights under this paragraph. This Section 6 will survive the
termination of this Agreement.
7. Confidentiality.
7.1 The
Consultant acknowledges that, during the course of performing his services
hereunder, the Company (which, for purposes of this Section 7 shall be deemed to
be defined as the Company and any subsidiary of the Company) will be disclosing
information to the Consultant, and the Consultant will be developing information
related to the Company’s business and marketing plans, Inventions, projects,
products, potential customers, personnel, business plans, and finances, as well
as other commercially valuable information (collectively "Confidential
Information"). The Consultant acknowledges that the Company's
business is extremely competitive; dependent in part upon the maintenance of
secrecy, and that any disclosure of the Confidential Information would result in
serious harm to the Company. The Consultant agrees that the
Confidential Information will be used by the Consultant only in connection with
consulting activities hereunder, and will not be used in any way that is
detrimental to the Company. The Consultant agrees not to disclose,
directly or indirectly, the Confidential Information to any third person or
entity, other than representatives or agents of the Company. The
Consultant will treat all such information as confidential and proprietary
property of the Company. The term "Confidential
Information" does not include information that (i) is or becomes
generally available to the public other than by disclosure in violation of this
Agreement, (ii) was within the relevant party's possession prior to being
furnished to such party, (iii) becomes available to the relevant party on a
non-confidential basis, or (iv) was independently developed by the relevant
party without reference to the information provided by the
Company. The Consultant may disclose any Confidential Information
that is required to be disclosed by law, government regulation or court order.
If disclosure is required, the Consultant will give the Company advance notice
so that the Company may seek a protective order or take other action reasonable
in light of the circumstances. Upon termination of this Agreement,
the Consultant will promptly return to the Company all materials containing
Confidential Information as well as data, records, reports and other property,
furnished by the Company to the Consultant or produced by the Consultant in
connection with services rendered hereunder, together with all copies of any of
the foregoing. Notwithstanding such return, the Consultant shall continue to be
bound by the terms of the confidentiality provisions contained in this Section 7
after the termination of this Agreement.
7.2 If
the Consultant has a conflict of interest, or potential conflict of interest,
with respect to any matter, he shall excuse himself from the discussion of such
matter and at the time of the execution of this Agreement, Consultant shall
disclose and describe all potential conflicts of interest that may arise from
the execution of this Agreement with respect to prior engagements Consultant is
a party to.
8. Acknowledgments and
Assent. The Parties acknowledge that they have been given at least
seven (7) days to consider this Agreement and that they were advised to consult
with an independent attorney prior to signing this Agreement and that they have
in fact consulted with counsel of their own choosing prior to executing this
Agreement. The Parties may revoke this Agreement for a period of three (3)
calendar days after signing this Agreement, and the Agreement shall not be
effective or enforceable until the expiration of this three (3) day revocation
period. The Parties agree that they have read this Agreement and
understand the content herein, and freely and voluntarily assent to all of the
terms herein.
9. Use of Name. It is
understood that the name of the Consultant will appear in disclosure documents
required by securities laws, and in other regulatory, administrative filings and
public relations materials in the ordinary course of the Company's business. The
above-described uses will be deemed to be acceptable uses.
10. No Conflict: Valid and
Binding. The Consultant represents that neither the execution of this
Agreement nor the performance of the Consultant's obligations under this
Agreement will result in a violation or breach of any other agreement by which
the Consultant is bound. The Company represents that this Agreement has been
duly authorized and executed and is a valid and legally binding obligation of
the Company, subject to no conflicting agreements.
11. Notices. Any notice
provided under this Agreement shall be in writing and shall be deemed to have
been effectively given (i) upon receipt when delivered personally, (ii) one day
after sending when sent by nationally recognized overnight courier mail service
(such as Federal Express), or (iii) 5 days after sending when sent by regular
mail to the following address, return receipt requested:
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In the case of the Company:
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In the case of the
Consultant:
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Attention:
Xxx Xxxx
, Xxxxxx 00000
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0000
Xxxxx xxx Xxxxx, Xxxxx 000
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Xxxxxxxx,
Xxxxxxxxxx 00000
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000-000-0000
xxx 000
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or to
other such address as may have been designated by the Company or the Consultant
by notice to the other given as provided herein.
12. Independent Contractor:
Withholding. The Consultant will at all time be an independent
contractor, and as such will not have authority to bind the
Company. The Parties acknowledge that this Agreement is not a
contract within the meaning of Section 2750 of the California Labor Code, and
the Consultant is not an employee of the Company for any purpose under the
California Labor Code. Consultant will not act as an agent nor shall
he be deemed to be an employee of the Company for the purposes of any employee
benefit program, unemployment benefits, or otherwise. The Consultant recognizes
that no amount will be withheld from his compensation for payment of any
federal, state, or local taxes and that the Consultant has sole responsibility
to pay such taxes, if any, and file such returns as shall be required by
applicable laws and regulations. Consultant shall not enter into any agreements
or incur any obligations on behalf of the Company.
13. Assignment. Due
to the personal nature of the services to be rendered by the Consultant, the
Consultant may not assign this Agreement. The Company may assign all rights and
liabilities under this Agreement to a subsidiary or an affiliate or to a
successor to all or a substantial part of its business and assets without the
consent of the Consultant. Subject to the foregoing, this Agreement will inure
to the benefit of and be binding upon each of the heirs, assigns and successors
of the respective parties.
14. Severability. If
any provision of this Agreement shall be declared invalid, illegal or
unenforceable, such provision shall be severed and the remaining provisions
shall continue in full force and effect.
15. Indemnification.
Consultant agrees to indemnify, hold harmless, reimburse and defend the the
Company and each of their respective officers, directors, agents, affiliates,
members, managers, control persons, and principal shareholders (each, together
with the Company, an “Indemnified
Party”), against any claim, cost, expense, liability, obligation, loss or
damage (including reasonable legal fees) of any nature, incurred by or imposed
upon the Company or any such person which results, arises out of or is based
upon: (i) any act by the Consultant of fraud or violation of state or federal
law causing any Claim (as hereinafter defined) or investigation on or against an
Indemnified Party; (ii) any intentional or fraudulent material misrepresentation
by the Consultant or intentional or fraudulent breach of any representation or
warranty by the Consultant in this Agreement document prepared by the Consultant
for use by the Company or third parties; or (iii) after any applicable notice
and/or cure periods, any material breach or default in performance by the
Consultant of any covenant or undertaking to be performed by the
Consultant hereunder.
If any
claim, suit, action or other proceeding to which the indemnity set forth herein
applies (“Claim”) is
brought against the Company an Indemnified Party, such Indemnified Party shall
give the Consultant prompt notice of such Claim, and the Consultant shall have
the right, at its own expense, to participate in or assume, with the consent of
the Indemnified Party (such consent not to be unreasonably withheld), the
defense of such Claim, provided that, the Consultant
shall use counsel reasonably acceptable to the Indemnified Party in defending
such Claim.
16. Remedies. The
Consultant acknowledges that the Company would have no adequate remedy at law to
enforce Sections 3, 4, 5, 6, 7, and 15 hereof. In the event of a
violation by the Consultant of such Sections, the Company shall have the right
to obtain injunctive or other similar relief, as well as any other relevant
damages, without the requirement of posting bond or other similar
measures. In the event any dispute is asserted by the Company as to
the Services, the Company may issue a stop order with the Company’s stock
transfer agent, for all or a portion of the shares issued without the
requirement that a bond be posted therefore. In such connection,
Consultant waives any obligation of Company to post a bond as to such stop order
and, will not contest any efforts or application of the Company to take such
action without the requirement of posing a bond. Notwithstanding the
foregoing, in the event Consultant does not provide the Services and related
report at the times contemplated hereby, then the Company shall be entitled to
terminate this Agreement and seek damages not to exceed return of the shares,
or, if transferred, the value thereof. (i.e. liquidated damages shall
be limited to return of the shares or, the value thereof based on current market
prices).
17. Governing Law; Entire
Agreement; Amendment. This Agreement shall be governed by the laws of the
State of California applicable to agreements made and to be performed within
such State, represents the entire understanding of the parties, supersedes all
prior agreements between the parties (other than the previously existing
confidentiality agreement executed by Mr. Port, individually which shall also
remain in effect), and may only be amended in writing.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
Consultant
Shrink
Nanotechnologies,
Inc. OTC
Investor Source, Inc.
____________________________ _____________________________
By: Xxxx
X.
Xxxx
By: Ben Port
Its:
CEO
Its: CEO
