CONSULTING AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into this 15th day of
November, 2005, by and between INTERACTIVE RESOURCES GROUP, INC., located at 000
Xxxx Xxxxx Xxxx 000, Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000 (hereinafter referred to
as "Consultant," "Interactive Resources Group, Inc.," or "IRG") and SIRICOMM,
INC., located at 0000 Xxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx, XX 00000 (hereinafter
referred to as "SiriCOMM, Inc.," "SIRC," or the "Company") (together the
"Parties").
WHEREAS, the Parties desire to set forth the terms and conditions under which
IRG shall provide corporate consulting services to SIRICOMM, INC.;
NOW THEREFORE, in consideration of the mutual promises and covenants herein
contained, and other valid consideration, receipt of which is hereby
acknowledged, the Parties agree as follows:
1. Term of Agreement
The agreement shall remain in effect from the date hereof through the
expiration of a period of three (3) months from the date hereof ("the
Term"), and thereafter may be renewed upon mutual consent of the
Parties.
2. Nature of Services to be rendered
During the Term and any renewal thereof, IRG shall; (a) provide the
Company with corporate consulting service(s) on a best efforts basis in
connection with corporate finance relations, corporate financial
services, corporate finance and mergers and acquisitions with respect
to SIRICOMM, INC., (b) use its best efforts to introduce the Company to
various securities dealers, investment advisors, analysts, funding
sources and other member of the financial community with whom it has
established relationships, and generally assist the Company in its
efforts to enhance its visibility in the financial community
(collectively, the "Services"). It is acknowledged and agreed by the
Company that IRG carries no professional licenses, and is not rendering
legal advice or performing accounting services, nor acting as an
investment advisor or broker-dealer within the meaning of applicable
state and federal laws.
3. Disclosure of Information
IRG agrees as follows:
IRG shall NOT disclose to any third party any material non-public
information of data received from the Company without the consent and
approval of the Company other than: (i) to its agents or
representatives that have a need to know in connection with the
services hereunder; (ii) as may be required by applicable law; and
(iii) such information that becomes publicly known through no action of
IRG.
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4. Compensation
The following represents the compensation to be received by IRG in
connection with rendering the Services hereunder:
a) $45,000 (forty five thousand dollars) cash, payable in monthly
installments with the first payment of $10,000 (ten thousand dollars)
due on or before December 1, 2005, and subsequent monthly payments of
$15,000 (fifteen thousand dollars) due on or before January 1st, 2006,
and $20,000 (twenty thousand dollars) on or before February 1st, 2006.
The Company agrees to make all monthly payments on the applicable due
date and in no event beyond ten (10) days past the due date. In the
event any of such payments are not received until after the 10th day,
then a 10% penalty shall also become due and payable.
b) Company agrees to deliver fifty thousand (50,000) shares of the
Company's common stock restricted pursuant to Rule 144 to the
Consultant in accordance with the following schedule: 25,000 on or
before December 1, 2005; 15,000 on or before January 1, 2006; and
10,000 on or before February 1, 2006. Furthermore, Company agrees to
convert above stated thirty five thousand (50,000) restricted shares to
become free trading shares when adequate registration is done.
c) IRG would also be entitled to receive an option/warrant to purchase
up to 50,000 common shares of the Company's common stock which shall
fully vest on the sixty-first (61st) day of said Agreement, exercisable
as follows:
i. 16,666 common shares exercisable at $1.25 per share;
ii. 16,667 common shares exercisable at $1.35 per share; and
iii. 16,667 common shares exercisable at $1.45 per share.
e) The Company shall agree to issue IRG piggyback registration rights
for the common shares underlying the option/warrant listed above,
whereby these shares will be registered for resale by IRG on the first
applicable Registration Statement filed by the Company with the U.S.
Securities & Exchange Commission. Said underlying common shares shall
be held by the Company until such time as IRG elects to exercise its
option or warrant to purchase the common shares. The term of the
option/warrant shall expire forty eight (48) months from the date of
the Registration Statement which registers the shares underlying the
option/warrant is deemed effective.
5. Duties of the Consultant.
The Consultant will develop a marketing campaign for SiriCOMM, Inc.
that will increase the market's awareness of the Company, and build a
strong shareholder base while increasing shareholder value.
Upon initiation of said campaign, IRG will develop and disseminate
customized investor relations materials, such as a Corporate Profile
that will prompt research coverage and serve as a catalyst for
marketing your stock to the investment community. This will promote the
understanding of and appreciation for the Company's strategic direction
among the retail, wholesale, institutional and individual investing
communities.
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By targeting investment professionals who are the most logical
candidates to become supporters of the Company, IRG will determine and
continually refine your company's key investment appeals with emphasis
on long-term growth.
Each time SiriCOMM, Inc. releases a piece of news; within an hour of
its release, IRG will provide this ongoing information about the
Company to our network of brokers in order to meet the needs of today's
investors who place a premium on the availability of timely, meaningful
and accurate information.
The Consultant will then make personal follow-up phone calls to all
parties that have previously shown interest in your company. This is
ensuring that the Company's progress is made known to the brokers,
analysts and portfolio managers who can buy or recommend your stock;
therefore matching what makes your company unique with the
characteristics sought by each individual financial professional.
In addition, the Consultant will assist SiriCOMM, Inc.'s management in
determining market timing and strategy for application of the Company's
listing on either the American Stock Exchange or Nasdaq Small Cap.
Assisting the Company in these decisions will aid in the development of
investor relations communications that will most positively influence
the Company's strategic vision, operational and financial performance,
and ongoing business expertise.
IRG will also provide in-depth DTC Review for the Company to better
understand the distribution of stock ownership.
6. Representations and Warranties of IRG.
In order to induce the Company to enter into said Agreement, IRG hereby
makes the following unconditional representation and warranties:
In connection with its execution of and performance under this
Agreement, IRG has not taken and will not take any action that will
cause it to become required to make any filings with or to register in
any capacity with the Securities and Exchange (the "SEC"), the National
Association of Securities Dealers, Inc. (the "NASD"), the securities
commissioner or department of state, or any other regulatory or
governmental body or agency.
Neither IRG nor any of its principals are subject to any sanction or
restriction imposed by the SEC, the NASD, any state securities
commission or department, or any other regulatory or government body or
agency that would prohibit, limit or curtail IRG's execution of said
Agreement or the performances of its obligation hereunder.
IRG is permitted to provide consulting services to any corporation or
entity in a business identical or similar to the Company's.
7. Duties of the Company
The Company shall supply IRG, on a regular and timely basis, with all
approved data and information regarding SiriCOMM, Inc., its management,
its products, and its operation. Company shall be responsible for
advising IRG of any facts which would affect the accuracy of any prior
data and information previously supplied to IRG so that IRG may take
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corrective action. The Company shall promptly supply IRG with full and
completed copies of all filings with all federal and state securities
agencies; with full and complete copies of all shareholder reports and
communication, whether or not prepared with the assistance of IRG; with
all data and information supplied to any analyst, broker-dealer, market
maker, or other member of the financial community; and with all
product/service brochures, sales materials, etc. Company shall supply
to IRG, within fifteen (15) days of execution of the Agreement, with a
list of all stockbrokers and marker makers active in the stock of
SiriCOMM, Inc. and a complete list of all shareholders.
IRG's reports are not intended to be used in the offering of
securities. Accordingly, the Company agrees as follows:
Company will notify IRG in writing a minimum of ten (10) days prior to
making any private or public offering of securities, including but not
limited to any offering registered on form S-8 or pursuant to
Regulation S of Regulation D.
Company will not utilize any of IRG's reports in connection with any
offering (public or private) of securities without the prior written
consent of IRG.
Company will not cause to be affected by any split of SiriCOMM, Inc.'s
stock during the term of this Agreement without the prior consent of
IRG.
The Company acknowledges that IRG relies on information provided by the
Company in connection with the provision of Services hereunder and
represents that said information is neither false nor misleading.
Company further agrees to hold harmless and indemnify IRG for any
breach of such representations and for any claims relating to the
purchase and/or sale of SiriCOMM, Inc.'s securities occurring out of or
in connection with IRG's relationship with the Company. This includes,
without limitation, reasonable attorney's fees and other costs arising
out of any such claims.
The Company's counsel must, within five (5) business days of receiving
written notice from IRG, provide an opinion letter to IRG and the
Transfer Agent for the Company's Restricted Stock addressing the
permissible resale of the Restricted Stock and the M & A Restricted
Stock (pursuant to Rule 144 of the Securities Act of 1933, as amended,
"The 1933 Act") transferred to IRG under this agreement.
8. Representations and Warranties of the Company
In order to induce IRG to enter into this Agreement, the Company hereby
makes the following unconditional representations and warranties:
SiriCOMM, Inc. is not subject to any restriction imposed by
the SEC or by operation of the 1933 Act, the Exchange Act of
1934, as amended (the "1934 Act") or any of the rules and
regulations promulgated under the 1933 Act or the 1934 Act
which prohibit its execution of this Agreement or the
performance of its obligations to IRG set forth herein.
SiriCOMM, Inc. has not been sanctioned by the SEC, the NASAD,
or any state securities commissioner or department in
connections with issuance of its securities.
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All payments are required to be made on time and in accordance
with the payment terms and conditions set forth herein.
The Company acknowledges that IRG does not guarantee its
ability to cause the consumption of any contract or merger or
acquisition with any corporate candidate. The Company hereby
agrees (i) all information about SiriCOMM, Inc. provided to
IRG, by or on behalf of the Company which may be disseminated
to the public by IRG in providing any consulting or other
services, pursuant to the Agreement shall not contain any
untrue statement of a material fact or omit to state any
material fact necessary to make the statements true, (ii) the
Company shall promptly notify IRG if the Company becomes aware
that IRG has publicly made any untrue statement of a material
fact regarding SiriCOMM, Inc., or has omitted to state any
material fact necessary to make the public statements made by
IRG about SiriCOMM, Inc. true, and (iii) the Company shall
promptly notify IRG of any "quiet period", "blackout period",
or other similar period during which public statements by or
on behalf of SiriCOMM, Inc. are restricted by any Securities
Law. Each party (an "indemnifying party") hereby agrees, to
the full extent permitted by applicable law, to indemnify and
hold harmless the other party (the "indemnified party") for
any damages caused to the indemnified party by the
indemnifying party's breach or violation of a Securities Law
which is caused by the indemnified party's breach or violation
or the Agreement, or any State Law.
9. Registration Obligations
At any time following the signing of the Agreement, if SIRICOMM, INC.
files a registration statement with the SEC registering an amount of
securities equal to at least one million ($1,000,000.00) dollars
("Registration Statement"), the Company must provide a ten (10) day
prior written notice of the Registration Statement to IRG.
10. Waiver of Registration Obligations
In the event that a NASD register broker-dealer executes a letter of
intent to conduct a firm commitment underwriting of SiriCOMM, Inc.
securities, with anticipated gross proceeds of at least one million
($1,000,000.00) dollars, and requiring all of Company's shareholders to
waive registration rights, IRG will provide a written waiver of
registration right herein provided.
11. Indemnification of IRG by the Company
The Company shall indemnify and hold harmless IRG and its principals
from and against any and all liabilities and damages in connection with
the Company's ownership and operation, and without limiting the
foregoing, shall pay IRG's legal fees and expenses if the Company is
named as a defendant in any proceedings brought in connection with the
Company or its activities.
12. Indemnification of the Company by IRG
IRG shall indemnify and hold harmless the Company and its principals
from and against any and all liabilities and damages arising out of any
intentional breach of its representations and warranties or agreements
made hereunder.
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13. Arbitration
Any controversy, dispute or claim arising out of or relating to this
Agreement or the breach thereof shall be settled by arbitration.
Arbitration proceedings shall be conducted in accordance with the rules
then prevailing of the American Arbitration Association or any
successor. The award of the Arbitration shall be binding on the
Parties. Judgment may be entered upon an arbitration award or in a
court of competent jurisdiction and confirmed by such court. Venue for
arbitration proceedings shall be within the state of Florida. The costs
of arbitration, reasonable attorney's fees of the Parties, together
with all other expenses, shall be paid as provided in the Arbitration
award.
14. Attorney Fees
In the event a legal action or arbitration is commenced by a Party to
the Agreement alleging a default of the terms or conditions of the
Agreement, and judgment is held in favor of the non-moving party
(respondent/defendant), the non-moving party shall be entitled to
recover all costs incurred as a result of defending such action
including reasonable attorney fees, expenses and court costs through
trial, appeal and to final disposition.
15. Entire Understanding/Incorporation of other Documents
This Agreement requires the entire understanding of the parties with
regard to the subject matter hereof; superseding any and all prior
agreements or understandings, whether oral or written, and no further
or additional agreements, promises, representations or covenants may be
inferred or constructed to exist between Parties.
16. No Amendment Except in Writing
Neither the Agreement nor any or its provisions may be altered or
amended except in a dated writing signed by both parties.
17. Independent Contractor
IRG agrees to perform its consulting duties hereto as an independent
contractor. Nothing contained herein shall be considered to as creating
an employer-employee relationship[ between the parties to this
Agreement.
18. Waiver of Breach
No waiver of any breach of any provision hereof shall be deemed to
constitute a continuing waiver or a waiver of any other portion of the
Agreement.
19. Termination of the Agreement
Either Party may terminate the Agreement without penalty by providing
written notification to the other Party within a thirty (30) day
period. The Agreement will then immediately terminate upon receipt of
the written notification ("Date of Termination") by the non-termination
Party. In the event of termination of said Agreement by the Company,
the Consultant shall be entitled to keep any and all fees, Company
stock or other compensation it received form the Company under the
Agreement prior to the Date of Termination.
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20. Governing Law
The Agreement and its provisions shall be constructed in accordance
with, pursuant to and governed by the State of Florida, as applicable
to agreements to be preformed solely within the State of Florida,
without regard to its conflict-of-laws provisions then in effect.
21. Miscellaneous
Notices. Any notice or other communication required or permitted to be
given hereunder shall be in writing and shall be deemed to have been
duly given when delivered personally or sent by registered or certified
mail, return receipt requested, postage prepaid to the parties hereto
at their addresses first above written. Either party may change his or
its address for the purpose of this paragraph by written notice
similarly given.
Entire Agreement. This Agreement represents the entire agreement
between the Parties in relation to its subject matter; it supercedes
and voids all prior agreements between such Parties relating to such
subject matter.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, and all of such counterparts shall
constitute one (1) instrument.
THE REMAINDER OF THIS PAGE WAS LEFT BLANK INTENTIONALLY
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IN WITNESS WHEREOF, the Parties have executed this Agreement on the day and year
as follows:
CONFIRMED AND AGREED ON THIS _______ DAY OF ________________, 2005.
SIRICOMM, INC.
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------- ---------------------------------
Officer, SiriCOMM, INC. Witness
Xxxxx X. Xxxxxxx
----------------------------------------- ---------------------------------
Print Name Print Name
CONFIRMED AND AGREED ON THIS 9th DAY OF December , 2005.
INTERACTIVE RESOURCES GROUP, INC
By: /s/ Xxxx X. Xxxxx /s/ Xxxxxx Xxxx Xxxxxx
------------------------------------ -------------------------------------
Xxxx X. Xxxxx, Xx., President Witness
Xxxxxx Xxxx Xxxxxx
-------------------------------------
Print Name
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