EXHIBIT 10.17
CONSULTING AGREEMENT
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This Consulting Agreement (the "Agreement"), effective as of this 2nd DAY OF
FEBRUARY, 2005 (the "Effective Date") is entered into by and between, NATIONAL
FINANCIAL COMMUNICATIONS CORP. DBA/ OTC Financial Network, a Commonwealth of
Massachusetts corporation 000 Xxxxxxxx Xx, Xxxxx 000, Xxxxxxx, XX 00000 (herein
referred to as the "Consultant") and INGEN TECHNOLOGIES, INC., (herein referred
to as the "Company").
RECITALS
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WHEREAS, Company desires to engage the services of Consultant to consult, assist
and advise the Company in identifying investor relations and/or public relations
and/or market relations organizations to be utilized by the Company and
assisting the Company with such investor relations and/or public relations
and/or market relations organizations which are engaged by the Company;
NOW THEREFORE, in consideration of the promises and the mutual covenants 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 the Effective
Date and ending 6 MONTHS from the Effective Date unless terminated
pursuant to Section 8 of this Agreement.
2. Services. During the term of this Agreement, Consultant's services may
include, but will not necessarily be limited to providing the following
services on behalf of and for the benefit of the Company:
A. Analyze Company's needs with respect to public relations
and/or investor relations and/or market relations.
B. Oversee and facilitate, for the benefit of the Company, any
and all investor relations and/or public relations and/or
market relations organizations which are engaged by the
Company;
C. Consult and assist the Company in developing and implementing
appropriate plans and means for presenting the Company and its
business plans, strategy and personnel to the financial
community.
D. Assist and advise the company with respect to its relations
with brokers, dealers, analysts, and other investment
professionals.
E. Otherwise perform as the Company's consultant for public
relations and/or investor relations and/or market relations.
F. Short and long term strategic planning.
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G. Short term crisis management.
H. Short and long term marketing.
I. Meeting with/selecting qualified companies for joint business
ventures.
J. Contracting and interviewing qualified accounting firms and
legal counsel.
K. Recruitment selection of key executives and staff
L. Internet and website design.
M. Recommending and identifying of board members, with all such
services (the "Services") on the terms and subject to the
condition set forth herein.
3. Allocation of Time and Energies. The Consultant hereby promises to
perform and discharge faithfully the responsibilities, which may be
assigned to the Consultant from time to time by the officers and duly
authorized representatives of the Company under this Agreement.
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.
4. Remuneration. As full and complete compensation for services described
in this Agreement, the Company shall compensate Consultant as follows:
4.1 For undertaking this engagement and for other good and
valuable consideration, the Company agrees to cause to be
delivered to the Consultant 5,000,000 shares registered,
unrestricted, freely trading shares of the Company's Common
Stock (which represents less than 5% of the issued and
outstanding shares of common stock in the Company) to be
issued in the following traunches: 2,500,000 shares up front
and the remaining balance to be paid to the Consultant 30 days
after. The Company understands and agrees that Consultant has
foregone significant opportunities to accept this engagement.
The shares of Common Stock issued as a Commencement Bonus,
therefore, constitute payment for Consultant's agreement to
consult to the Company and are a nonrefundable, non-apportion
able, and non-ratable retainer; such shares of common stock
are not a prepayment for future services. If the Company
decides to terminate this Agreement after entered into 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
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 Company's 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 shares of Common Stock.
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4.2 With each transfer of shares of 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 duly authorized by the
Company. Company warrants that all Shares issued to Consultant
pursuant to this Agreement shall have been validly issued,
fully paid and non-assessable and that the Company's board of
directors shall have duly authorized the issuance, and any
transfer of them to Consultant.
5. Non-Assign ability of Services. Consultant's services under this
contract are offered to Company only and may not be assigned by Company
to an entity with which Company merges or which acquires the Company or
substantially all of its assets. In the event of such merger or
acquisition, all compensation to Consultant herein under the schedules
set forth herein shall remain due and payable, and any compensation
received by the Consultant may be retained in the entirety by
Consultant, all without any reduction or pro-rating and shall be
considered and remain fully paid and non-assessable. Notwithstanding
the non-assign ability of Consultant's services, Company shall assure
that in the event of any merger, acquisition, or similar change of form
of entity, that its successor entity shall agree to complete all
obligations to Consultant, including the provision and transfer of all
compensation herein and the preservation of the value thereof
consistent with the rights granted to Consultant by the Company herein,
and to Shareholders.
6. Indemnification. The Company warrants and represents that all oral
communications, written documents or materials 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, indemnity and hold harmless
Consultant (including its officers, directors, employees and agents)
against any claims or litigation including any damages, liability, cost
and reasonable attorney's lees as incurred with respect thereto
resulting from Consultants communication or dissemination of any said
information, documents or materials. Company further agrees to protect,
indemnity and hold harmless Consultant (including its officers,
directors, employees and agents) against any claims or litigation
including any damages, liability, cost and reasonable attorney's fees
as incurred with respect thereto resulting from any and all breaches by
Company and/or Company's officers, directors, employees, agents, and
any and all market relations, public relations and investor relations
organizations introduced to Company by Consultant and subsequently
engaged by Company, including misrepresentations and/or omission of
fact and from any and all violations of applicable laws and
regulations.
7. 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 further acknowledges that it is not a securities Broker
Dealer or a registered investment advisor and is not and will not
perform any tasks, which require Consultant to be licensed as such.
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, decree or judgment involving any violation of the SEC or
securities laws. Both Company and Consultant acknowledge that Company
is under no obligation to follow and/or act in accordance with the
recommendations made by Consultant in connection with this Agreement.
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Company represents that its decision to not act in accordance with
Consultant's recommendations in no way effects Company's obligations as
set forth in Section 4 et. Seq. hereinabove. Company acknowledges that
it remains responsible to perform any and all additional due diligence
it deems necessary and appropriate respecting the investor relations,
market relations and public relations organizations introduced to it by
Consultant. Company further represents and acknowledges that Consultant
is not responsible and not liable for the actions taken by those
investor relations, market relations and public relations organizations
that are introduced to it by Consultant and subsequently engaged by
Company.
8. Termination. This Agreement may be terminated by Consultant during the
Term hereof by notice to the Company in the event that the Company
shall have provided materially inaccurate or misleading information, of
any type or nature, to the Consultant, or failed or been unable to
comply in any material respect with any of the terms, conditions or
provisions of this Agreement on the part of the Company to be
performed, complied with or fulfilled within the respective times, if
any, herein provided for, unless compliance therewith or the
performance or satisfaction thereof shall have been expressly waived by
Consultant in writing. Any termination of this Agreement pursuant to
this Section 8 shall be without liability of any character (including,
but not limited to, loss of anticipated profits or consequential
damages) on the part of the Company, except that the Company shall
remain obligated to pay the fees, other compensation and costs
otherwise to be paid, as set forth in Sections 4 and 5 hereof.
9. Legal Representation. The Company acknowledges that independent legal
counsel in the preparation of this Agreement has represented it.
Consultant represents that it has consulted with independent legal
counsel and/or tax, financial and business advisors, to the extent the
Consultant deemed necessary.
10. 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 or
employee of the other. Consultant further acknowledges the
consideration provided hereinabove 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
nor the Consultant possesses the authority to bind each other in any
agreements without the express written consent of the entity to be
bound.
11. Waiver. The waiver by either party of a breach of 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.
12. Notices. Any notices or other communications required or permitted
hereunder shall be sufficiently given if personally delivered, or sent
by express mail or telegram, or transmitted by fax or e-mail, addressed
as set forth herein below.
If to Consultant:
NATIONAL FINANCE COMMUNICATIONS, INC.
If to the Company:
INGEN TECHNOLOGIES, INC.
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13. Confidentially. This entire Agreement, including the terms of this
Agreement, shall remain confidential in its entirety and will not be
disclosed to anyone without first receiving written consent to do so.
This is a material part of this Agreement.
14. 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. In the event that any
particular provision or provisions of this Agreement shall for any
reason hereafter be determined to be unenforceable, or in violation of
any law, governmental order or regulation, such unenforceability or
violation shall not affect the remaining provisions of this Agreement,
which shall continue in full force and be binding upon the respective
parties hereto. The language of this Agreement shall be construed as a
whole, according to its fair meaning and intent, and not strictly for
or against either party hereto, regardless of who drafted or was
principally responsible for drafting the Agreement or the terms or
conditions hereof
AGREED TO:
NATIONAL FINANCE COMMUNICATIONS, INC.
Date:
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By:
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Xxxxxxxx Xxxxx, President
INGEN TECHNOLOGIES, INC.
Date: FEBRUARY 2, 2005
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By: /S/ Xxxxx Sand
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Xxxxx Sand, Pres./CEO
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