[EXHIBIT 99.5]
CONSULTING AGREEMENT
This consulting agreement ("Agreement"), effective as of November 29,
2006 supersedes all other consulting entered by and between Third-
Order Nanotechnologies, Inc. a Delaware corporation ("the Company or
"Company") and Wall Street Resources, Inc., a Florida corporation
("Consultant").
RECITALS
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WHEREAS, the Company is a public company with its shares of common
stock trading under the symbol "TDON" on the OTC exchange in the
United States; and
WHEREAS, Consultant has experience in the area of security analysis,
corporate finance, investor communications; and
WHEREAS, the Company desires to engage the services of Consultant to
provide written analytical coverage and consultation with the Company
in matters concerning corporate finance and investor communications
with existing shareholders, brokers, dealers and other investment
professionals, as to the Company's current and proposed activities;
NOW THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein set forth, and intending to be legally
bound, the Company and Consultant agree as follows:
2. Term of Consultancy. The Company engages Consultant to act in a
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consulting capacity to the Company, and Consultant agrees to
provide services to the Company commencing on the date first set
forth above and ending six months after the completion of the 1st
analytical report (the "term of this Agreement").
3. Duties of Consultant. The Consultant will generally provide the
following consulting services (the "Services") during the term of
this Agreement:
a. Provide written analytical coverage and reports, advise and
assist the Company in developing and implementing
appropriate plans and materials for presenting the Company
and its business plans, strategy and objectives to the
financial community;
b. Disseminate analytical reports regarding the Company to
shareholders, brokers, dealers and other investment
community professionals and the general investing public
within the Consultant's network;
c. With the cooperation of the Company, revise, update and
provide summary reports during the term of this Agreement
regarding the
Company's plans, strategy, and financial data, as may evolve
during such period, and advise and assist the Company in
communicating appropriate information regarding such plans,
strategy and financial data to the financial community;
d. Assist and advise the Company with respect to its relations
with brokers, dealers, analysts and other investment
professionals;
e. Perform the functions generally assigned to an communications
consulting firm, including writing analytical reports,
responding to telephone and written inquiries from brokers,
dealers, analysts and other investment professionals (which
may be referred to the Consultant by the Company);
f. Upon receipt of the Company's approval, conduct meetings in
person or by telephone, with brokers, dealers, analysts,
other investment professionals and the general investment
public.
3. Allocation of Time and Energies. The Consultant will perform the
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Services in a professional manner in accordance with accepted
industry standards and in compliance with applicable securities
laws and regulations. Although no specific hours-per-day
requirement will be required, the parties acknowledge and agree
that a disproportionately large amount of the effort to be extended
and the costs to be incurred by the Consultant, and the benefits to
be received by the Company, are to be expected to occur upon and
shortly after, and in any event, within two months of the
effectiveness of this Agreement. It is explicitly understood that
Consultant's performance of its duties hereunder will in no way be
measured by the price of the Company's common stock, nor the
trading volume of the Company's common stock. It is understood that
the Company is entering into this Agreement with the understanding
that Xxxxxx X. Xxxxx will be the principal of Consultant during the
entire term of this Agreement.
4. Remuneration. As full and complete compensation for Consultant's
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agreement to perform the Services, the Company shall compensate the
Consultant as follows:
a. For undertaking this engagement and for other good and
valuable consideration, the Company agrees to issue and
deliver to the Consultant a "Commencement Bonus", payable in
the form of 60,000 shares of the Company's 144 restricted
Common Stock ("Common Stock") and $15,000 in cash. The 144
restricted Common Stock portion of the Commencement Bonus
shall be issued to the Consultant immediately following
execution of this Agreement and shall, when issued to the
Consultant, be fully paid and non-assessable. The cash
portion shall be paid to consultant in six equal payments of
$2,500 beginning 30 days after the release of the 15t report
and due in full post a cash infusion exceeding $500,000. The
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Company understands and agrees that Consultant has forgone
significant opportunities to accept this engagement and the
Company derives substantial benefit from the execution of
this Agreement and the ability to establish its relationship
with Consultant. The shares of Common Stock issued as a
Commencement Bonus, therefore, constitute payment for
Consultant's agreement to consult with the Company and are a
nonrefundable and non-ratable retainer (with the exception of
the provisions set forth in Section 15 below). Such Shares
are not a prepayment for future services. If the Company
attempts to terminate this Agreement prior to the expiration
of its term 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 paid to it
hereunder.
b. All shares of the Common Stock issued pursuant to this
Agreement shall be issued in the name of Consultant. The
Company agrees that all shares of Common Stock issued to
Consultant hereunder shall carry "piggyback registration
rights" whereby such shares will be included in the next
Registration Statement filed by the Company with the
Securities and Exchange Commission ("SEC"), pursuant to which
such shares and options could be registered, and Company will
use its best efforts to cause such Registration Statement to
be declared effective by the SEC as soon as possible
thereafter. 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 Common Stock issued to Consultant.
c. Consultant acknowledges that the shares of Common Stock to be
issued pursuant to this Agreement (collectively, the "Shares")
have not been registered under the Securities Act of 1933 and
accordingly are "restricted securities" within the meaning of
Rule 144 of the Act. As such, the shares may not be resold or
transferred unless the Company has received an opinion of
counsel reasonably satisfactory to the Company that such a
resale or transfer is exempt from the registration
requirements of Rule 144 of the Act.
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5. Expenses. Consultant agrees to pay for all its expenses (phone,
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labor, etc.), other than extraordinary items for which the Company
will reimburse Consultant. Such extraordinary items include travel
and entertainment required by/or specifically requested by the
Company, luncheons or dinners for large groups of investment
professionals, mass faxing to a sizable percentage of the Company's
constituents, investor conference calls, print advertisements in
publications, and like expenses which must be approved by the
Company prior to its incurring an obligation for reimbursement.
6. Indemnification.
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a. The Company agrees to indemnify and hold harmless Consultant,
its officers, directors, employees, affiliates and agents
harmless from and against any and all losses, claims, damages
and liabilities, related to or arising out of any breach by
the Company of its obligations under this Agreement and/or
the Company's actions in connection with the transactions
and/or activities contemplated herein.
b. Consultant agrees to indemnify and hold harmless Company, its
officers, directors, employees, affiliates and agents
harmless from and against any and all losses, claims, damages
and liabilities, related to or arising out of any breach by
Consultant of its obligations under this Agreement and/or the
Consultant's actions in connection with the transactions
and/or activities contemplated herein.
7. Representations. The Company warrants and represents that all oral
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communications, written documents or materials furnished to
Consultant are accurate, and the Consultant warrants and represents
that all communications by Consultant with the public, with respect
to the financial affairs, operations, profitability and strategic
planning of the Company, will be in accordance with information
provided to it by the Company. The Consultant may rely upon the
accuracy of the information provided by the Company without
independent investigation. 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 acknowledges that to the best of its
knowledge, the performance of the Services will not violate any
rule or provision of any regulatory agency having jurisdiction over
Consultant. Consultant acknowledges that to the best of its
knowledge, Consultant and its officers and directors are not the
subject of any investigation, claim, decree or judgment involving
any violation of the SEC or securities law.
8. Status as Independent Contractor. Consultant's engagement pursuant
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to this Agreement shall be as independent contractor, and not as
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
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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.
9. Attorneys' Fees. If any legal action(s) or any arbitration or
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other proceeding(s) is brought for the enforcement or interruption
of the Agreement, or because of alleged dispute, breach, default
or misrepresentation in connection with or related to this
Agreement, the successful or prevailing party shall be entitled to
recover reasonable attorney's' fees and other costs in connection
with that action(s) or proceeding(s), in addition to any other
relief to which they may be entitled.
10. Waiver. The waiver by either party of a breach of any provIsion
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of this agreement by the other party shall not operate or be
construed as a waiver of any subsequent breach by such other
party.
11. Notices. All notices, requests, and other communications hereunder
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shall be deemed to be duly given if sent by U.S. mail, postage
prepaid, addressed to the other party at the address set forth
herein below:
Company Address: Consultants Address:
Third-Order Nanotechnologies,Inc. Wall Street Resources, Inc.
0000 Xxxxxx Xxxxx 0000 XX Xxxx Xxxx
Xxxxx 00 Xxxxx 000
Xxxxxxxxxx, XX 00000 Xxxx Xxxx, XX 00000
Either party may change address, to which notices for it
shall be addressed by providing notice of such change to the
other party, in the manner set forth in this paragraph.
12. Choice of Law, Jurisdiction and Venue. This Agreement shall be
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governed by, construed and enforced in accordance with the
internal laws of the State of Delaware, without giving effect to
its conflict of laws or choice of law principles.
13. Arbitration. Any controversy or claim arising out of or relating
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to this Agreement, or the alleged breach thereof, or relating to
Consultant's activities or remuneration under this Agreement,
shall be settled by binding arbitration in Wilmington, Delaware in
accordance with the applicable rules of the American Arbitration
Association, and judgment on the award rendered by the
arbitrator(s) shall be binding on the parties and may be entered
in any court having jurisdiction.
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14. Due Diligence Period. The Consultant retains the right to
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terminate this Agreement for thirty (30) days from the
effectiveness of this Agreement while Consultant completes due
diligence. Consultant explicitly understands that all Cash,
Common Stock, Options or any other compensations received by
the Consultant from the Company will be forfeited and returned
to the company within five (5) days of written termination of
the Agreement.
15. Right to Change Opinion. It is explicitly understood that
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forecasts, price targets and ratings are based heavily upon
timely information supplied by the Company that is deemed to
be realistic and accurate. Consultant reserves the right to
revise their opinion regarding, but not limited to, revenue
projections, income projections, price targets or rating in
light of new information or if any prior information is found
to be inaccurate or misleading. It is further agreed that
Consultant reserves the right to revise their opinion
regarding, but not limited to, revenue projections, income
projections, price targets or rating in light of any
significant or material change in the Company including, but
not limited to, excessively dilutive financing, change in
business model, merger, acquisition or change in management.
16. Complete Agreement. This Agreement contains the entire
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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.
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AGREED TO:
"The Company" Third-Order Nanotechnologies, Inc.
0000 Xxxxxx Xxxxx
Xxxxx 00
Xxxxxxxxxx, XX 00000
Dated: Nov 30 '06 By: /s/ Xxxxxxxxx X. Xxxxx
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Xx. Xxxxxxxxx X. Xxxxx
President, CEO
And its Duly Authorized Officer
"Consultant" Wall Street Resources, Inc.
0000 XX Xxxx Xxxx
Xxxxx 000
Xxxx Xxxx, XX 00000
Dated: 11/30/06 By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
President
And its Duly Authorized Officer
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