Exhibit 99.5
SECOND AMENDED AND RESTATED CONSULTING CONTRACT
This Consulting Agreement (this "Agreement") is made as of the 11th day
of October, 2004, by and among GK Intelligent Systems, Inc., a Texas
corporation, having its principal place of business at 0000 Xxxxxxxx Xxxxx,
Xxxxxxx, XX 00000 (Company), and Xxx Xxxxxxx, an individual and resident of
0000 XX 00xx Xxx., Xxxx Xxxxx, XX 00000 ("Consultant"). This Agreement
supercedes and takes precedence over a previous agreement between the two
parties dated June 3rd, 2004 and is made in light of the following recitals
which are a material part hereof.
Recitals:
A. Consultant is a corporate finance consultant, experienced with both
technology and financing of small-cap companies generally. Accordingly,
notwithstanding Consultant's familiarity with securities law, neither
Consultant nor the Company desires that Consultant furnish any legal services
but only information, evaluation and analysis.
B. Consultant has knowledge and experience to provide such
information, evaluation, analysis as the Company believes can assist it in
furthering execution of its business model.
C. The Company desires to retain the services of the Consultant for
those consulting services regarding certain financing contemplated as well as
the impact of such financing on the functions and operations of the Company as
more fully set forth in that confidential schedule of services and
deliverables attached hereto as Schedule A which services are incorporated
herein by reference and referred to herein as the "Consultant Services"
D. Consultant desires to provide the Consultant Services to and
consult with the Board of Directors, the officers of the Company, and the
administrative staff, and to undertake for the Company, consultations and
recommendations in conformity with such Consultant upon the terms and
conditions provided herein including but not limited to the compensation
promised herein.
NOW THEREFORE, for and in consideration of good and valuable
consideration, in hand paid, including, but not limited to the mutual promises
set forth herein, the receipt and sufficiency of which is acknowledged by each
party hereto, the parties hereby agree as follows:
1. Recitals Govern. The parties desire to enter into this agreement for
purposes of carrying out the above recitals and intentions set forth above and
this Agreement shall be construed in light thereof.
2. Stock only for Services. The parties desire to memorialize their
agreement to adhere to Securities Act Release No. 33-7646, dated February 26,
1999 regarding registration of securities on Form S-8, a copy of which is
attached hereto as Exhibit A and incorporated herein by reference. No duty,
obligation, engagement or other thing imposed on either the Company or the
Consultant hereunder shall be construed to impose any duty, obligation or
other engagement in violation of the letter or spirit of said release.
3. Consulting Services. The Consultant agrees to provide the Consultant
Services to the Company during the "Term" (as hereinafter defined). Consultant
agrees to provide such information, evaluation and analysis, in accordance
with the Consultant Services as will assist in maximizing the effectiveness of
Client's business model both relative to its business model and to its present
and contemplated capital structure. The Consultant shall personally provide
the Consultant Services and the Company understands that the nature of the
services to be provided are part time and that the Consultant will be engaged
in other business and consulting activities during the term of this Agreement.
3.a Conflicts. The Company waives any claim of conflict and
acknowledges that Consultant has owned and continues to own and has consulted
with and continues to consult with interests in competitive businesses which
might compete but for location.
3.b Confidential Information. The consultant agrees that any
information received by the consultant during any furtherance of the
consultant's obligations in accordance with this contract, which concerns the
personal, financial or other affairs of the company will be treated by the
consultant in full confidence and will not be revealed to any other persons,
firms or organizations. In connection herewith, Consultant and the Company
have entered into that Confidentiality Agreement in the form attached hereto
as Schedule B.
3.c Role of Consultant. Consultant shall be available to consult with
the Board of Directors, the officers of the Company, and the heads of the
administrative staff, at reasonable times, concerning matters pertaining to
the organization of the administrative staff, the fiscal policies of the
Company, the relationship of the Company with its employees or with any
organization representing its employees, and, in general, the important
problems of concern in the business affairs of the Company all in fulfillment
of the Consultant Services. Consultant shall not represent the Company, its
Board of Directors, its officers or any other members of the Company in any
transactions or communications nor shall Consultant make claim to do so.
3.d Liability. With regard to the services to be performed by the
Consultant pursuant to this Agreement, the Consultant shall not be liable to
the Company, or to anyone who may claim any right due to any relationship with
the Company, for any acts or omissions in the performance of services on the
part of the Consultant or on the part of the agents or employees of the
Consultant, except when said acts or omissions of the Consultant are due to
willful misconduct or gross negligence. The Company shall hold the Consultant
free and harmless from any obligations, costs, claims, judgments, attorneys'
fees, and attachments arising from or growing out of the services rendered to
the Company pursuant to the terms of this agreement or in any way connected
with the rendering of services, except when the same shall arise due to the
willful misconduct or gross negligence of the Consultant and the Consultant is
adjudged to be guilty of willful misconduct or gross negligence by a court of
competent jurisdiction.
4. Term. The term of this Agreement shall commence as of the date hereof
and shall continue for a period of one (1) year from that date, unless sooner
terminated as provided herein. It is understood that this Agreement shall not
automatically renew and no obligations to renew are implied notwithstanding
continued efforts to fulfill terms and conditions incomplete as of the
termination of this Agreement. This Agreement and the duties and obligations
of the Consultant may be terminated by either party giving thirty (30) days'
prior written notice to the other but the compensation and any previously
incurred and approved expenses shall be deemed earned by and due to
Consultant.
5. Compensation. In consideration of the execution of the Agreement, and
the performance of his obligations hereunder, and in lieu of cash compensation
on an hourly basis, the Consultant shall receive a fee of Four Hundred
Seventy-Two Thousand, Two Hundred Twenty-Two, (472,222) registered common
shares of the Company (hereinafter, the "Shares"). The Shares will be, prior
to delivery to Consultant, registered pursuant to valid and effective
registration statements under either Form SB-2 or S-8 and the Company agrees
that the Shares shall be freely tradable and that the existence of any
restriction, buy-sell or other limitation under state or Federal securities
laws including but not limited to Rule 144 of the Securities Act of 1933
and/or the limitations on manner of sale imposed under the Securities and
Exchange Act of 1934 shall be lifted and/or waived by the Company prior to
delivery of the Shares. The Shares shall be tendered within Twenty (20) days
of the effective date of this Agreement.
6. Expenses. The Company shall pay or reimburse the Consultant for all
reasonable travel, business and miscellaneous expenses incurred by the
Consultant in performing its duties under this Agreement, subject to prior
approval.
7. Control as to Time and Place and Manner where Services Will Be
Rendered, Independent Contractor. It is anticipated the Consultant will spend
up to 200 hours in fulfilling its obligations under this Agreement. The
particular amount of time may vary from day to day or week to week. The
Consultant shall not be entitled to any additional compensation except where
the Consultant performs more than 200 hours, subject to the prior written
approval of the Company, whereupon the Consultant will be paid at the rate of
$150 per hour for work performed in accordance with this Agreement. If
additional work is approved, the Consultant will submit an itemized statement
setting forth the time spent and services rendered, and the Company will pay
the Consultant the amounts due as indicated by statements submitted by the
Consultant within ten (10) days of receipt.. Both the Company and the
Consultant agree that the Consultant will act as an independent contractor in
the performance of its duties under this Agreement. The Consultant will
perform most services in accordance with this Agreement at a location and at
times chosen in Consultant's discretion. The Company may from time to time
request that the Consultant arrange for the services of others but Consultant
shall choose and contract with same. All costs to the Consultant for those
services will be paid by the Company but in no event shall the Consultant
employ others without the prior authorization of the Company. Accordingly, the
Consultant shall be responsible for payment of all taxes including Federal,
State and local taxes arising out of the Consultant's activities in accordance
with this Agreement, including by way of illustration but not limitation,
Federal and state income tax, Social Security tax, unemployment insurance
taxes, and any other taxes or business license fee as required. Except as
otherwise may be agreed, the Consultant shall at all times be in an
independent contractor, rather than a co-venturer, agent, employee or
representative of the Company.
8. Representations and Warranties. The Company represents and warrants
that (I) the shares being issued and/or sold pursuant to option are authorized
to be issued by the Company; (ii) The Company has full right, power, and
corporate authority to execute and enter into this Agreement, and to execute
all underlying documents and to bind such entity to the terms and obligations
hereto and to the underlying documents and to deliver the interests and
consideration conveyed thereby, same being authorized by power and authority
vested in the party signing on behalf of the Company; (iii) the Company has
and will have full right, power, and authority to sell, transfer, and deliver
the shares being issued and/or sold pursuant to option; (iv) the Company has
no knowledge of any adverse claims affecting the subject shares and there are
no notations of any adverse claims marked on the certificates for same; and
(v) upon receipt, Consultant or his nominee will acquire the shares being
issued and/or sold pursuant to option, free and clear of any security
interests, mortgage, adverse claims, liens, or encumbrances of any nature or
description whatsoever, subject only to matters pertaining to the sale of
securities generally including but not limited to the Securities Act of 1933,
as amended, and the rules and regulations promulgated thereunder, or any state
statute, rule, or regulation relating to the sale of securities (collectively,
"Securities Laws"). In the event that Consultant accepts shares not yet
subject to a valid registration statement (notwithstanding or waiving the
Company's obligations to deliver shares duly and properly registered),
Consultant represents and warrants to the Company that he will acquire same
for investment and not with a view to the sale or other distribution thereof
and will not at any time sell, exchange, transfer, or otherwise dispose of
same under circumstances that would constitute a violation of Securities Laws.
Each party acknowledges the creation, modification and/or transfer of
securities and represents and warrants to all others that it has reviewed the
transaction with counsel and that no registration or representations are
required and that all rights of recourse or rescission resulting from such
transfer, to the extent permitted by law, are waived and each party represents
and warrants to all others that no marketing of securities to the public has
occurred. Each of the warranties, representations, and covenants contained in
this Agreement by any party thereto shall be continuous and shall survive the
delivery of Consultant Services, the Compensation and the termination of this
Agreement.
9. Arbitration. Any controversy or claim arising out of or relating to
this Agreement, or the breach thereof, shall be settled by arbitration in
accordance of the rules of the American Arbitration Association, and judgment
upon the award rendered by the arbitrator(s) shall be entered in any court
having jurisdiction thereof. For that purpose and the resolution of any other
claim hereunder, the parties hereto consent to the jurisdiction and venue of
an appropriate court located in Jefferson County, State of Florida. In the
event that litigation results from or arises out of this Agreement or the
performance thereof, the parties agree to reimburse the prevailing party's
reasonable attorney's fees, court costs, and all other expenses, whether or
not taxable by the court as costs, in addition to any other relief to which
the prevailing party may be entitled. In such event, no action shall be
entertained by said court or any court of competent jurisdiction if filed more
than one year subsequent to the date the cause(s) of action actually accrued
regardless of whether damages were otherwise as of said time calculable.
10. Notices. All notices, requests, consents, and other communications
under this Agreement shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, or delivered by Facsimile or delivered
personally to the address written above or to such other address of which the
addressee shall have notified the sender in writing. Notices mailed in
accordance with this section shall be deemed given when mailed.
11. Binding Effect, Assignment and Succession. All covenants and
agreements contained in this Agreement by or on behalf of any of the parties
hereto shall bind and inure to the benefit of his, her or its respective
heirs, personal representatives, successors, and assigns, whether so expressed
or not. Except for assignment of the options as provided above, no party to
this Agreement may, however, assign his rights hereunder or delegate his
obligations hereunder to any other person or entity without the express prior
written consent of the other parties hereto.
12. Entire Agreement and Interpretation. This Agreement, including any
exhibits and schedules hereto, constitutes and contains the entire agreement
of the Company and the Consultant with respect to the provision of Consultant
Services and Compensation and supersedes any prior agreement by the parties,
whether written or oral. It 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. The waiver of a breach of any
term or condition of this Agreement must be in writing and signed by the party
sought to be charged with such waiver, and such waiver shall not be deemed to
constitute the waiver of any other breach of the same or of any other term or
condition of this agreement. This Agreement shall be construed in accordance
with and governed by the laws of the State of Florida without regard to its
rules and laws regarding conflicts of laws and each of the parties hereto
irrevocably submit to the exclusive jurisdiction of any Florida State or
United States Federal court sitting in Palm Beach County, Florida over any
action or proceeding arising out of or relating to this Agreement. The
parties hereto further waive any objection to venue in the State of Florida
and any objection to an action or proceeding in the State of Florida on the
basis of forum non conveniens.
13. Miscellaneous. The section headings contained in this Agreement are
inserted as a matter of convenience and shall not be considered in
interpreting or construing this Agreement. This Agreement may be executed
concurrently 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. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of the remaining
provisions. Time is of the essence of this Agreement and the obligations of
the parties hereto.
IN WITNESS WHEREOF, the Company and the Consultant have executed this
Agreement as of the day and year first written above.
Company: Consultant:
/s/ Xxxx X. Xxxxxxx /s/ Xxx Xxxxxxx
________________________ ____________________________
GK INTELLIGENT SYSTEMS, INC. XXX XXXXXXX
XXXX X. XXXXXXX
Exhibit A
Adoption of Securities Act Release No. 33-7646, dated February 26, 1999
Regarding Registration of Securities on Form S-8
Purpose
To clarify that S-8 is not available to consultants who directly or indirectly
promote or maintain a market for the issuer's securities ,declaring that these
persons take from an issuer with a view to distribution and are therefore
"statutory underwriters" (who presumably would not have an exemption for the
resale of securities issued in these types of transactions [Section 4(1) of
the Securities Act of 1933, as amended (the "Act"), the exemption relied upon
for secondary sales of securities, is not available to "issuers, underwriters
or dealers" in securities]).
Background
As of April 7, 1999, the availability of S-8's streamlined registration
process was restricted to deter the abuse of the Form to make sales to the
general public through so-called "consultants" and "advisors," and to
eliminate registration on the Form to "stock promoters." S-8 eliminated a
need to file a prospectus that duplicated information usually available to
plan participants who were being compensated by the issuance of securities
rather than cash, and it reflected the Commission's distinction between
offerings made to employees for compensatory reasons and offerings made for
capital raising. The Commission reasoned that the relationship of the
employee to the issuer provided the employee with a familiarity of the
issuer's business sufficient to justify the abbreviated disclosure, which
would not be adequate in a capital raising transaction. The 1990 amendment
included "consultants" whom the Commission found no reason to distinguish from
regular employees, for bona fide non-capital raising services rendered.
Abuses
Since 1990, the Form has been used to distribute securities to the public
without the protections to investors of registration under Section 5 of the
Act. Securities are often issued to so-called "consultants" for nominal
services, with pre-arrangements for exercise and distribution to the public in
the underlying markets. Often the options granted are exercised to provide
funds to the issuer or the proceeds of the sales are for the payment of debts
of the issuer that are not related to any services provided by the
consultants.
The initial registration of the shares underlying these options did not
register the public "capital raising" transaction which actually takes place
via the secondary sales. In these instances, the employee or consultant acts
as a conduit to the public, and the shares are not actually issued as
compensation for services, for which the Form is solely intended. Securities
have also been issued to consultants whose services are to promote the
issuer's securities. This practice invites fraud by providing inexpensive
compensation to person who hype the securities of the issuer and expand the
issuer's market through resales by these and other persons. Through its
recent amendments to Form S-8, the Commission has sought to curb these
practices, while maintaining, to the extent possible, the initial intent of
the Form, i.e., the registration of compensatory transactions between the
issuer and consultants and advisors who render bona fide services outside of
"capital raising" circumstances, as well as to traditional employees.
Amendments
The Form's availability is for employees or employees or subsidiaries,
pursuant to any employee benefit plan. An "employee" is defined to include a
consultant or advisor who provides bona fide services to the issuer other than
in capital raising transactions. Like the traditional employee, the
consultant or advisor must be a natural person, and there must be a contract
between the issuer and the consultant or advisor. The Commission has
determined that "capital raising" includes (i) compensation for any service
that directly or indirectly promotes or maintains a market for the issuer's
securities, or (ii) where the securities are issued to persons who act as
conduits for a distribution to the general public. Securities issued to
persons who promote the issuer's securities are outside the intent of the
Form. Securities cannot be issued to anyone who directly or indirectly
promotes or maintains a market in the issuer's securities. Issuers cannot
use the Form for the issuance of securities to consultants and advisors whose
services related to potential capital restructuring because this service is a
predicate to "capital raising" and market maintenance; however, services
rendered in structuring the compensation scheme would be included under the
Form. Public relations services are also prohibited as the Commission
believes these services enhance and expand the market of the issuer and its
securities.
Rule 701 Amendments
As of April 7, 1999, the Commission amended Rule 701 to harmonize the
definition of "consultants and advisors" permitted to use the Rule to the
narrower definition of Form S-8. As revised, securities promoters will
clearly be excluded from the scope of persons eligible to use Rule 701.
SCHEDULE A TO CONSULTING AGREEMENT
SCHEDULE OF SERVICES AND DELIVERABLES
Consultant shall provide the following Strategic Services:
1. Business Development and Planning: Develop an in-depth familiarization
with the Corporation's business objectives and bring to its attention
potential or actual opportunities that meet those objectives or logical
extensions thereof. Alert the Corporation to new or emerging high potential
forms of production and distribution that could either be acquired or
developed internally. Comment on the Corporation's corporate development
including such factors as position in competitive environment, financial
performances vs. competition, strategies, operational viability, etc. Identify
prospective suitable merger or acquisition partners for the Corporation,
perform appropriate diligence investigations with respect thereto, advise the
Corporation with respect to the desirability of pursuing such prospects, and
assist the Corporation in any negotiations which may ensue therefrom.
2. Corporate Strategic Analysis: Evaluate business strategies and
recommend changes where appropriate.
3. Critically evaluate the Corporation's performance in view of its
corporate planning and business objectives.
4. Strategic Contacts and formation of Strategic alliances and
Introduction to strategic partners and other alliance candidates;
5. Strategic consulting regarding high level product planning, market
development, marketing and intellectual property planning; Business
development
6. Introduction to prospective customers for the Company's products or
services.
7. The consultant will consult with the officers and employees of the
company concerning matters relating to the management and organization of the
company, their financial policies, the terms and conditions of employment, and
generally any matter arising out of the business affairs of the Company.
SCHEDULE B TO CONSULTING AGREEMENT
CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement (hereafter this "Agreement"), made this 11TH
day of October 2004, by and between GK Intelligent St, Inc., a Texas
corporation ("Company"),having its residence at 0000 Xxxxxxxx Xxxxx, Xxxxxxx,
XX 00000 and Xxx Xxxxxxx, an individual and resident of 0000 XX 00xx Xxx.,
Xxxx Xxxxx, XX 00000 ("Consultant"). Given that the Company and Consultant
each desire to make certain confidential information concerning the Company,
its technology, its investments, its processes, its marketing strategies, its
capitalization and finances and its business as well as similar confidential
information lawfully possessed by the Consultant (collectively, the
"Information") for purposes agreed to be legitimate and the Company and
Consultant each agree to hold such Information confidential pursuant to the
terms of this Agreement, in consideration of the mutual promises and other
good and valuable consideration, the receipt and sufficiency of which is
acknowledged and with the intent to be legally bound hereby, the Company and
the Consultant agree as follows.
1. The Information includes, but is not limited to, (I) all information
on the Company, (ii) any and all data and information given or made available
to the Consultant by the Company for evaluation purposes, whether written or
in machine-readable form, (iii) any and all of the Company's and Consultant's
notes, work papers, investigations, studies, computer printouts, and any other
work product including electronic data files, regardless of nature containing
any such data and information and (iv) all copies of any of the foregoing.
2. The Consultant and Company each understand that the Information is
proprietary to the Company and Consultant and each agrees to hold the
Information given by the other strictly confidential. The Company and
Consultant each agree that the Information shall be used only by the Company
and Consultant and only for the purpose of reviewing and evaluating the
activities of the Company, and shall not be used for any other purpose or be
disclosed to any third party. Neither the Company nor Consultant shall have
the right to make copies or hold copies or documents except for reports and
notes which have been generated by them, which reports and notes shall be
retained for their exclusive use and shall remain confidential.
3. It is understood that this Confidentiality Agreement shall not apply
to any information otherwise covered herein (I) which is known to either the
Company or the Consultant prior to the date of the Confidentiality Agreement,
(ii) which is disclosed to the Consultant or the Company by a third party who
has not directly or indirectly received such Information in violation of an
agreement with party from whom it was received or (iii) which is generally
known within the industry.
4. The Company and the Consultant each agree to be fully responsible
and liable to the other for any and all damages caused by reason of disclosure
of Information in violation of this Confidentiality Agreement by the receiving
party or any of its assigns or successors.
5. This Confidentiality Agreement shall be governed by and construed in
accordance with the laws of the State of Florida and shall be enforceable
solely by and be for the sole benefit of the Consultant and Company, their
successors and assigns.
In witness whereof, the Company and the Consultant have executed this
Agreement as of the date above.
Company: Consultant:
/s/ Xxxx X. Xxxxxxx /s/ Xxx Xxxxxxx
________________________________ _____________________________
GK INTELLIGENT SYSTEMS, INC. XXX XXXXXXX
XXXX X. XXXXXXX
SCHEDULE C TO CONSULTING AGREEMENT
GRANT OF OPTIONS
The Company also grants the consultant option to purchase stock, and the
Company does hereby grant, convey and warrant to Consultant, Five Million,
Five Hundred Fifty-Five Thousand, Five Hundred Fifty-Five (5,555,555) shares
of common stock in the Corporation with $.001 par value, more or less as
adjusted as provided herein below (hereinafter, the "Shares") exercisable in
one or more traunches, exercisable at the following "Option Price" for the
following traunches which Option shall be exercisable in whole or in part at
any time prior to 11:59PM EDT on November 11, 2004 (the "Expiration Date"):
Option Option Price
5,555,555 shares .03
Or to be negotiated the Option Shares will be, prior to delivery to
Consultant, registered pursuant to valid and effective registration statements
under either Form SB-2 or S-8 and the company agrees that the Option Shares
shall be freely tradable and that the existence of any restriction, buy-sell
or other limitation under state or Federal securities laws including but not
limited to Rule 144 of the Securities Act of 1933 and/or registration pursuant
to exercise (which shall be deemed demand registration rights for purposes of
determining the obligation of the Company) and/or the limitations on manner of
sale imposed under the Securities and Exchange Act of 1934 shall be lifted
and/or waived by the Company, at the Company's sole cost, prior to delivery of
the Option Shares. The Company agrees to lend to Consultant the amount due
under the Options by promissory note secured by such stock in the event the
Consultant does not have the cash to acquire same but such note shall be
limited to and shall be due in Forty-Five (45) days whereafter it shall be a
default if not paid.
