EXHIBIT 4.4
INDEPENDENT CONTRACTOR FEE/CONSULTING AGREEMENT
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THIS AGREEMENT is made and entered into on February 17, 2004 by and between
NanoSignal Corporation, a Nevada corporation ("NNOS") and Xxxxx Xxxxxxx, a
resident of Atlanta, GA ("Cummins").
RECITALS
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WHEREAS, NNOS is a public company trading on the OTCBB under the symbol
"NNOS"; and
WHEREAS, Cummins is knowledgeable in the areas of business operations of
NNOS and possesses skills and experience in mergers and acquisitions and
business strategies;
WHEREAS, Cummins has provided valuable assistance and advice regarding
American Cummins Exchange and other exchanges upon the shares of NNOS may become
listed;
WHEREAS, NNOS wishes to engage Cummins on a non-exclusive basis as an
independent contractor to continue utilizing his skills, business experience,
and his business knowledge to assist in completing certain strategic business
plans of NNOS to complete an asset roll-up and AMEX merger;
WHEREAS, NNOS and Cummins intend that this Agreement and the services
performed hereunder shall be made, requested and performed in such a manner that
this Agreement shall be a "written compensation agreement" as defined in Rule
405 of the Securities and Exchange Commission ("Commission") pursuant to which
NNOS may issue "freely tradeable" shares (except as may be limited by
"affiliate" status) of its common Cummins as payment for services rendered
pursuant to an S-8 Registration Statement to be filed with the Commission by
NNOS; and
WHEREAS, Cummins is willing to be so retained on the terms and conditions
set forth in this Agreement.
AGREEMENT
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NOW, THEREFORE, in consideration of the promises and the mutual agreements
hereinafter set forth, the parties hereto agree as follows:
1. Engagement. NNOS hereby retains and engages Cummins to perform the
following consulting services (the "Consulting Services"):
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1.1 Duties of Cummins. Cummins will continue to help NNOS evaluate the 28G
Real Estate development component of the AMEX merger possibilities and assist in
negotiating landowner/shareholders approvals of the project. Cummins will also
provide such services and advice to NNOS so as to assist NNOS with matters
relating to acquisition targets for NNOS and advise and administer the structure
of any such mergers or other acquisitions. Without limiting the generality of
the foregoing, Cummins will also assist NNOS in administering, studying and
evaluating acquisition proposals, review reports and studies thereon when
advisable, and assist in negotiations and discussions pertaining thereof.
Nothing contained herein constitutes a commitment on the part of Cummins to find
an acquisition target for NNOS or, if such target is action will be completed.
Cummins will assist NNOS in creating its business development and business
strategy as well as marketing strategies.
2. Duties Expressly Excluded. This Agreement expressly excludes Cummins
from providing any and all capital formation and/or public relation services to
NNOS inclusive of but not limited to (i) direct or indirect promotion of NNOS's
securities; (ii) assistance in making of a market in NNOS's securities; and
(iii) assistance in obtaining debt and/or equity financing. Cummins shall not
have the power of authority to bind NNOS to any transaction without NNOS's prior
written consent.
3. Term. All services performed at the request of NNOS by Cummins shall
have been performed within 180 days from the date hereof, at which time this
Agreement shall terminate, unless otherwise provided herein; provided, however,
this Agreement may be extended for an additional 180 day period by written
agreement of NNOS and any of the Consultants.
4. Consideration. NNOS and Cummins agree that Cummins shall receive from
NNOS a fee consisting of the following:
A. 3,500,000 shares of NNOS's unrestricted common Cummins shares of the
NNOS's Common Cummins, par value $0.01 per share (the "Common Cummins"), covered
by a registration statement of the Company under the Securities Act of 1933, as
amended (the "Act"), on Form S-8 (the "S-8 Registration Statement") to be
prepared by NNOS at its expense and filed by NNOS with the SEC via XXXXX as soon
as practicable. NNOS covenants that the S-8 Registration Statement shall be kept
effective until such time as all of the S-8 shares have been sold pursuant
thereto. NNOS hereby further agrees to exert its best efforts to cause as
expeditiously as is practicable all of the S-8 shares to be certificated and
credited by the Depository Trust Company ("DTC") to the securities brokerage
account of Consultant specified by Consultant. These shares shall be paid in
advance, as consideration for the services already rendered or to be rendered
pursuant to this Agreement. These shares shall be issued immediately.
5. Expenses. Cummins shall bear his out-of-pocket costs and expenses
incident to perform the Consulting Services, without a right of reimbursement
from NNOS unless such expenses are pre-approved by NNOS.
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6. Cummins Liability. In the absence of gross negligence or willful
misconduct on the part of Cummins or Cummins breach of any terms of this
Agreement, Cummins shall not be liable to NNOS or to any officer, director,
employee, Cumminsholder or creditor of NNOS, for any act or omission in the
course of or in connection with the rendering or providing of services
hereunder. Except in those cases where the gross negligence or willful
misconduct of Cummins or the breach by Cummins of any terms of this Agreement is
alleged and proven, NNOS agrees to defend, indemnify, and hold harmless from and
against any and all reasonable costs, expenses and liability (including
reasonable attorney's fees paid in the defense of Cummins) which may in any way
result from services rendered by Cummins pursuant to or in any connection with
this Agreement. This indemnification expressly excludes any and all damages as a
result of any actions or statements on behalf of NNOS made by Cummins without
the prior approval or authorization of NNOS.
7. NNOS's Liability. Cummins agreAgreement. This indemnification expressly
excludes any and all damages as a result of any actions or statements on behalf
of NNOS made by Cummins without the prior approval or authorization of NNOS.
7. NNOS's Liability. Cummins agreS without
the prior approval or authorization of NNOS or which are otherwise in violation
of applicable law.
8. Representations. Cummins makes the following representations:
X. Xxxxxxx has no prior or existing legally binding obligations
that are in conflict with his entering into this Agreement;
X. Xxxxxxx shall not offer or make payment of any consideration
to brokers, dealers or others for purposes of inducing the
purchase, making of a market or recommendation for the
purchase of NNOS's securities;
X. Xxxxxxx is not currently the subject of an investigation or
inquiry by the Securities and Exchange Commission, the NASD,
or any state securities Commission;
X. Xxxxxxx activities and operations fully comply with now and
will comply with in the future all applicable state and
federal securities laws and regulations;
X. Xxxxxxx agrees to reasonably to insure that neither he nor his
employees, agents, or affiliates, trade in the securities of
client companies while in possession of material non-public
information;
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F. During the term of this Agreement and for a period of two
years thereafter, Cummins shall treat as NNOS's confidential
trade secrets all data, information, ideas, knowledge and
papers pertaining to the affairs of NNOS. Without limiting the
generality of the foregoing, such trade secrets shall include:
the identity of NNOS's customers, suppliers and prospective
customers and suppliers; the identity of NNOS's creditors and
other sources of financing, NNOS's estimating and costing
procedures and the costs and gross prices charged by NNOS for
its products, the prices or other consideration charged to or
required of NNOS by any of its suppliers or potential
suppliers; NNOS's sales and promotional policies; and all
information relating to entertainment programs or properties
being developed or otherwise developed by NNOS. Cummins shall
not reveal said trade secrets to others except in the proper
exercise of his duties for NNOS, or use their knowledge
thereof in any way that would be detrimental to the interest
of NNOS, unless compelled to disclose such information by
judicial or administrative process; provided, however, that
the divulging of information shall not be a breach of this
Agreement to the extent that such information was (i)
previously known by the party to which it is divulged, (ii)
already in the public domain, all through no fault of Cummins,
or (iii) required to be disclosed by Cummins pursuant to
judicial or governmental order. Cummins shall also treat all
information pertaining to the affairs of NNOS's suppliers and
customers and prospective suppliers and customers as
confidential trade secrets of such customers and suppliers and
prospective customers and suppliers.
9. NNOS's Representations. NNOS makes the following representations:
A. NNOS is not currently the subject of an investigation or
inquiry by the Securities and Exchange Commission, the NASD,
or any state securities Commission; and
B. NNOS is in good standing in its state of incorporation.
10. Entire Agreement. This Agreement embodies the entire agreement and
understanding between NNOS and Cummins and supersedes any and all negotiations,
prior discussions and preliminary and prior agreements and understandings
related to the primary subject matter hereof. This Agreement shall not be
modified except by written instrument duly executed by each of the parties
hereto.
11. Waiver. No waiver of nay provisions of this Agreement shall be deemed,
or shall constitute a waiver of any other provisions, nor shall any waiver
constitute a continuing waiver. No waiver shall be binding unless executed in
writing by the party making the waiver.
12. Assignment and Binding Effect. This Agreement and the rights hereunder
may not be assigned by NNOS (except by operation of law or
merger) but shall be freely assignable by Cummins; and it shall be binding upon
and inure to the benefits of the parties and their respective successors,
assigns and legal representatives.
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13. Governing Law and Attorney's Fees. In the event there is a dispute
regarding this Agreement, it shall be governed by Nevada law. Should litigation
arise in regard to this Agreement, the prevailing party shall be entitled to
costs and the attorney's fees actually incurred. The term "prevailing party" as
used in this paragraph means the party that is entitled to recover costs of
suit.
14. Severability. Every provision of this Agreement is intended to be
severable. If any term or provision hereof is deemed unlawful or invalid for any
reason whatsoever, such unlawfulness or invalidity shall not affect the validity
of this Agreement.
15. Headings. The headings of this Agreement are inserted solely for the
convenience of reference and are not part of, and are not intended to govern,
limit or aid in the construction of any term or provision hereof.
16. Further Acts. Each party agrees to perform any further acts and execute
and deliver any further documents that may be reasonably necessary to carry out
the provisions and intent of this Agreement.
17. Acknowledgment Concerning Counsel. Each party acknowledges that it had
the opportunity to employ separate and independent counsel of its own choosing
in connection with this Agreement.
18. Independent Contractor Status. There is no relationship, partnership,
agency, employment, franchise or joint venture between the parties. The parties
have no authority to bind the other or incur any obligations on their behalf.
19. Counterparts. 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.
IN WITNESS WHEREOF, the parties hereto duly execute this Agreement as of
the date first written above.
NanoSignal Corporation Xxxxx Xxxxxxx
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxx Xxxxxxx
Authorized Corporate Signatory Xxxxx Xxxxxxx
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