EX-10.2
CONSULTING AGREEMENT
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is made effective the 19th
day of November, 2004, between Xxxxxx XxXxxxx, 0000 Xxxxxx Xxxx,
Xxxxxxx, XX, Xxxxxx, an individual ("Consultant") and ParaFin
Corporation, 00000 Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx Xxxxxxxxxx,
Xxxxxxxxxx, X.X.X. 92675 ("Client").
In consideration of the mutual promises, covenants and agreements
contained in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the Client and Consultant agree as follows:
1. ENGAGEMENT OF CONSULTANT. The Client engages Consultant to
provide the consulting services described below, during the term of
this Agreement, until this Agreement is terminated as provided herein.
2. SCOPE OF SERVICES TO BE PROVIDED BY CONSULTANT. Consultant has
provided geologic and geophysical consulting services since June 15,
2004 relating to the Xxxx Xxxxxx Block, a License consisting of
approximately 6.6 million acres from the Government of Paraguay for
the purpose of the exploration and exploitation of hydrocarbons in
that region of Paraguay. The Consultant agrees to perform for the
Client further geologic services and consulting related to the Client
obtaining Farmout Agreement with Guarani Exploration and Development
Corporation (Guarani), owners of the Alto Parana Block. At the
request of the Client, the Consultant will make himself available to
meet with representatives of the Client and Guarani to assist the
Client in the analytical interpretation of all geophysical and
geological reports provided by Guarani and all reports relating to
the Alto Parana Block in Paraguay in possession of the Client and
give an opinion as to the viability of entering into an agreement to
explore for hydrocarbons in the said Alto Parana Block, Paraguay.
The Consultant shall review any other information supplied by the
Client or Guarani and deliver recommendations to the Client that will
assist the Client in the decision making process of evaluating the
possibility of the Client entering into a Farmout Agreement with the
owners of the said Alto Parana Block. Client acknowledges that there
is no assurance or guaranty that the Client will be able to enter
into any Agreement to with Guarani as a result of the consulting
services to be provided by the Consultant hereunder, nor has the
Consultant made any representations or warranty to the Client
regarding any such contractual guarantees. Consultant agrees to
perform for the Client all services and consulting related to the
Client reaching a Farmout Agreement on a "best efforts" basis through
Consultant's officers, or others employed, including any legal firms
retained under the direction of Consultant (collectively
"Consultant's Personnel").
3. TERM. This Agreement shall have an initial term of one hundred
twenty (120) days (the "Primary Term"), starting with the date
appearing at the top of this Agreement (the"Effective Date"), and it
may be renewed by written notice of renewal signed by both parties to
this Agreement.
4. COMPENSATION. In consideration of the Services contemplated by
this Agreement, Client agrees to pay Consultant the following
fees for the Services:
a. Initial Retainer Fee. In order to retain the Services of
Consultant, and to compensate Consultant for sacrificing other
opportunities in order to serve Client, Client agrees to issue, or
cause to be transferred, up to Five Million (5,000,000) shares of the
Client's common stock in the following manner: Two Million
(2,000,000) shares of free-trading common stock in Client's company,
issued pursuant to an S-8 registration statement under the Securities
Act of 1933 for work done prior to November 30, 2004, Two Million
(2,000,000) shares of free-trading common stock in Client's company,
issued pursuant to an S-8 registration statement under the Securities
Act of 1933 within thirty (30) days of a Farmout Agreement concluded
between the Client and Guarani and One Million (1,000,000) shares of
free-trading common stock in Client's company, issued pursuant to an
S-8 registration statement under the Securities Act of 1933 upon
commencement of drilling for hydrocarbons on the said Alto Parana
Block. All such stock issued is agreed to be a non-refundable
retainer fee. The parties agree that such stock is deemed free
trading, fully paid and non-assessable as of November 30, 2004.
b. Additional Payments for Additional Services. Client may agree
to issue additional shares, and Consultant may agree to perform
additional services. Such additional shares paid or additional
services performed shall be deemed to be subject to all the terms of
this Agreement, including the agreement that such shares shall be
issued in a private, exempt transaction under Section 4(2) of the Act.
5. COSTS AND EXPENSES. All third-party and out-of-pocket expenses
incurred by Consultant in performing the Services shall be paid by
the Client, or shall be reimbursed by Client if paid by Consultant on
behalf of the Client, within ten (10) days of receipt of written
notice by Consultant, provided that the Client must approve in
advance all expenses in excess of $500 per month. Expenses include
but are not limited to the following: (a) filing fees for any forms
required by state or federal agencies; (b) transfer agent fees,
including fees for printing of stock certificates; (c) long distance
telephone and facsimile costs; (d) copying, mail and Federal Express
or other express delivery costs; (e) fees associated with obtaining
or providing Consultant with Client's audited financial statements.
6. COMPENSATION FOR OTHER SERVICES. If the Client after the date
hereof enters into a merger or acquisition, or enters into an
agreement for the purchase of assets, as a direct or indirect
result of Consultant's efforts, the Client agrees to pay Consultant
in the manner described below.
a. If Consultant provides any material assistance to the Client in
a merger, acquisition or asset purchase of an entity ("Business
Opportunity"), which assistance includes (but is not limited to)
introducing the Business Opportunity to the Client or helping to
prepare documents used in negotiating such Business Opportunity,
Client agrees to pay Consultant 9.9% of the gross value of such
transaction with a Business Opportunity ("M&A Fee").
b. If the Client acquires any asset or obtains any payment or other
benefit, other than a Business Opportunity described above, as a
result of Consultant's Services (an "Asset Opportunity"), the Client
agrees to pay Consultant 9.9% of the gross value of such Asset
Opportunity ("Consultant's Fee").
c. The Client will pay each M&A Fee or Consultant's Fee in cash,
shares of the Client's stock or the stock of the Business Opportunity
or the Asset Opportunity, or in like kind. Consultant has the sole
option to choose the form of payment. Such payment shall be made on
the date the Client substantially completes the transaction involved.
7. TIME AND EFFORT OF CONSULTANT. Consultant may allocate its time
and that of Consultant's Personnel as it deems necessary to provide
the Services. In the absence of willful misfeasance, bad faith, or
reckless disregard for the obligations or duties of Consultant under
this Agreement, neither Consultant nor Consultant's Personnel shall
be liable to Client or any of its shareholders for any act or
omission connected with rendering the Services, including but not
limited to losses due to any corporate act undertaken by Client as a
result of advice provided by Consultant or Consultants's Personnel.
8. BEST EFFORTS. The Services are rendered to Client on a "best
efforts" basis, meaning that Consultant can not, and does not,
guarantee that its efforts will have any impact on Client's business
or that any subsequent financial improvement will result from
Consultant's efforts.
9. CLIENT'S REPRESENTATIONS. Client represents, warrants and
covenants to Consultant that each of the following are true and
complete as of the Effective Date:
a. Entity Existence. Client is a corporation or other legal entity
duly organized, validly existing, and in good standing under the laws
of the state of its formation, with full authority to own, lease and
operate property and carry on business as it is now being conducted.
Client is duly qualified to do business in and is in good standing in
every jurisdiction where such qualification is necessary.
b. Client Authority for Agreement. Client has duly authorized the
execution and delivery of this Agreement and the consummation of the
transactions contemplated herein. Client has duly executed and
delivered this Agreement; it constitutes the valid and legally
binding obligation of Client enforceable according to its terms.
c. Nature of Representations. No representation or warranty made by
Client in this Agreement, nor any document or information furnished
or to be furnished by Client to the Consultant in connection with
this Agreement, contains or will contain any untrue statement of
material fact, or omits or will omit to state any material fact
necessary to make the statements contained therein not misleading, or
omits to state any material fact relevant to the transactions
contemplated by this Agreement.
d. Independent Legal/Financial Advice. Consultant is not a law firm
or an accounting firm. Consultant employs lawyers and accountants to
counsel Consultant on its Services. Client has not nor will it rely
on any legal or financial representation of Consultant. Client has
and will continue to seek independent legal and financial advice
regarding all material aspects of the transactions contemplated by
this Agreement, including the review of all documents provided by
Consultant to Client and all Opportunities Consultant introduces to
Client. Client recognizes that the attorneys, accountants and other
personnel employed by Consultant represent solely the interests of
Consultant, and that no representation or warranty has been given to
Client by Consultant as to any legal, tax, accounting, financial or
other aspect of the transactions contemplated by this Agreement.
10. NON-CIRCUMVENTION. Client agrees not to enter into any
transaction involving an Opportunity or asset introduced to Client by
Consultant without compensating Consultant pursuant to this
Agreement. Client will not terminate this Agreement solely as a
means to avoid paying Consultant compensation earned or to be earned
under this Agreement. Client will not act in any other way to
circumvent paying Consultant.
11. CONSULTANT IS NOT A BROKER-DEALER. Consultant has fully
disclosed to Client that it is not a broker-dealer and does not
have or hold a license to act as such. None of the activities of
Consultant are intended to provide the services of a broker-dealer to
the Client, and Client has been informed that a broker-dealer will
need to be engaged to perform any such services. Client has full and
free discretion in the selection of a broker-dealer.
12. NON-EXCLUSIVE SERVICES. Client acknowledge that Consultant is
currently providing services of the same or similar nature to other
parties. Client agrees that Consultant is not barred from rendering
services of the same or a similar nature to any other individual or
entity.
13. PLACE OF SERVICES. The Services provided by Consultant or
Consultant's Personnel hereunder will be performed at Consultant's
offices except as otherwise mutually agreed by Consultant and Client.
14. INDEPENDENT CONTRACTOR. Consultant, with Consultant's
Personnel, acts as an independent contractor in performing its duties
under this Agreement. Accordingly, Consultant will be responsible
for paying all federal, state, and local taxes on compensation paid
under this Agreement, including income and social security taxes,
unemployment insurance, any other taxes regarding Consultant's
Personnel, and any business license fees. This Agreement neither
expressly nor impliedly creates a relationship of principal-agent, or
employer-employee, between Client and Consultant's Personnel.
Neither Consultant nor Consultant's Personnel are authorized to enter
into any agreement on behalf of Client. Client expressly retains the
right to make all final decisions, in its sole discretion, with
respect to approving, or effecting a transaction with, any
Opportunity located by Consultant.
15. REJECTED ASSET OPPORTUNITY OR BUSINESS OPPORTUNITY. If Client
elects not to acquire, participate in, or invest in any Opportunity
located by Consultant during the Term of this Agreement,
notwithstanding the time and expense Client incurred reviewing such
Opportunity, such Opportunity shall revert back to and become
proprietary to Consultant. Consultant shall be entitled to acquire
such rejected Opportunity for its own account, or submit such
Opportunity elsewhere. In such event, Consultant shall be entitled
to all profits or fees resulting from Consultant's purchase, referral
or placement of any such rejected Opportunity, or Client's subsequent
purchase or financing with such Opportunity in circumvention of
Consultant.
16. NO AGENCY EXPRESS OR IMPLIED. This Agreement neither expressly
nor impliedly creates a relationship of principal and agent between
the Client and Consultant, or employee and employer as between
Consultant's Personnel and the Client.
17. TERMINATION. Either Client or Consultant may terminate this
Agreement prior to the expiration of the Primary Term or any
Extension Period by signed written notice. Such notice is not
effective unless given at least thirty (30) days before the proposed
termination date.
18. INDEMNIFICATION. Subject to the provisions herein, the Client
and Consultant agree to indemnify, defend and hold each other
harmless from and against all demands, claims, actions, losses,
damages, liabilities, costs and expenses, including without
limitation, interest, penalties and attorneys' fees and expenses
asserted against or imposed or incurred by either party by reason of
or resulting from the other party's breach of any representation,
warranty, covenant, condition, or agreement contained in this
Agreement.
19. REMEDIES. Consultant and the Client acknowledge that in the
event of a breach of this Agreement by either party, money damages
would be inadequate and the non-breaching party would have no
adequate remedy at law. Accordingly, in the event of any controversy
concerning the rights or obligations under this Agreement, such
rights or obligations shall be enforceable in a court of equity by a
decree of specific performance. Such remedy, however, shall be
cumulative and non-exclusive and shall be in addition to any other
remedy to which the parties may be entitled.
20. MISCELLANEOUS.
a. Amendment. This Agreement may be amended or modified at any
time or in any manner, but only by an instrument in writing executed
by the parties hereto.
b. Entire Agreement. This Agreement contains the entire agreement
between Consultant and Client relating to the subjects addressed in
this Agreement. This Agreement supersedes any and all prior
agreements, arrangements, or understandings (written or oral) between
the parties. No understandings, statements, promises, or inducements
contrary to the terms of this Agreement exist. No representations,
warranties, covenants, or conditions, express or implied, other than
as set forth herein, have been made by any party.
c. Waiver. Any failure of any party to this Agreement to comply
with any of its obligations, agreements, or conditions hereunder may
be waived in writing by the party to whom such compliance is owed.
The failure of any party to this Agreement to enforce at any time any
of the provisions of this Agreement shall in no way be construed to
be a waiver of any such provision or a waiver of the right of such
party thereafter to enforce each and every such provision. No waiver
of any breach of or non-compliance with this Agreement shall be held
to be a waiver of any other breach or non-compliance.
d. Headings and Captions. The section and subsection headings in
this Agreement are inserted for convenience only and shall not affect
in any way the meaning or interpretation of this Agreement.
e. Governing Law. The validity, interpretation, and performance of
this Agreement shall be governed by the laws of the State of Nevada,
regardless of its law on conflict of laws. Any dispute arising out of
this Agreement shall be brought in a court of competent jurisdiction
in Nevada. The parties expressly consent to the personal jurisdiction
of the above-identified courts. The parties agree to exclude and
waive any statute, law or treaty which allows or requires any dispute
to be decided in another forum or by rules of decision other than as
provided in this Agreement.
f. Binding Effect. This Agreement is binding on the parties hereto
and inures to the benefit of the parties, their respective heirs,
administrators, executors, successors, and assigns.
g. Attorney's Fees. If any action at law or in equity, including an
action for declaratory relief, is brought to enforce or interpret the
provisions of this Agreement, the prevailing party shall be entitled
to recover reasonable attorney's fees, court costs, and other costs
incurred in proceeding with the action from the other party. Should
either party be represented by in-house counsel, all parties agree
that such party may recover attorney's fees incurred by that in-house
counsel in an amount equal to that attorney's normal fees for similar
matters, or, should that attorney not normally charge a fee, by the
prevailing rate charged by attorneys with similar background in that
legal community.
h. Severability. In the event that any one or more of the
provisions contained in this Agreement shall for any reason be held
to be invalid, illegal, or unenforceable in any respect, such
invalidity, illegality or un-enforceability shall not affect any
other provisions of this Agreement. Instead, this Agreement shall be
construed as if it never contained any such invalid, illegal or
unenforceable provisions.
i. Mutual Cooperation The parties shall cooperate with each other
to achieve the purpose of this Agreement, and shall execute such
other documents and take such other actions as may be necessary or
convenient to effect the transactions described herein.
j. Counterparts. A facsimile, telecopy, or other reproduction of
this Agreement may be executed simultaneously 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. Such
executed copy may be delivered by facsimile or similar instantaneous
electronic transmission. Such execution and delivery shall be
considered valid for all purposes.
k. No Third Party Beneficiary. Nothing in this Agreement, expressed
or implied, is intended to confer upon any person, other than the
parties hereto and their successors, any rights or remedies under or
by reason of this Agreement, unless this Agreement specifically
states such intent.
l. Time is of the Essence. Time is of the essence of this
Agreement and of each and every provision hereof.
IN WITNESS WHEREOF, the parties have hereto affixed their
signatures.
"Client"
ParaFin Corporation
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: President
"Consultant"
Xxxxxx XxXxxxx
By: /s/ Xxxxxx XxXxxxx
Xxxxxx XxXxxxx in his individual capacity
