Exhibit 4.23
FINANCIAL CONSULTING SERVICES AGREEMENT
This Financial Consulting Services Agreement (the "Agreement") is entered
this 11th day of December, 2001 by and between M. Xxxxxx Xxxxx, Xxxxxxx
Xxxxxxxxx and Xxxxxxxx Xxxxxx ("Consultants"), individual's, and Patriot
Scientific Corporation (OTC BB: PTSC) ("Client"), a Delaware corporation, with
reference to the following:
Preliminary Statement
A. The Client desires to be assured of the association and services of the
Consultants in order to avail itself of the Consultants experience, skills,
abilities, knowledge, and background to facilitate long range strategic
planning, and to advise the Client in business and/or financial matters and is
therefore willing to engage the Consultants upon the terms and conditions set
forth herein. Consultants desire to be assured, and Client desires to assure
Consultants, that, if Consultants associate with Client and allocates its
resources necessary to provide Client with its services as Client requires and
expects, Consultants will be paid the consideration described herein and said
consideration will be nonrefundable, regardless of the circumstances.
B. The Consultants agree to be engaged and retained by the Client and upon
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises
hereinafter set forth and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Engagement. Client hereby engages Consultants on a non-exclusive basis,
and Consultants hereby accepts the engagement to become financial Consultants to
the Client and to render such advice, consultation, information, and services to
the Directors and/or Officers of the Client regarding general financial and
business matters including, but not limited to:
a. Strategic alliances, mergers and acquisitions;
b. Corporate planning, strategy and negotiations with potential
strategic business partners and/or other general business
consulting needs as expressed by Client;
c. Business development and business advertising;
d. B-Consulting providing business solutions;
e. Structuring and providing alternative sources for accounts
receivable, purchase order and other asset financing.
f. Due diligence processes and Capital structures;
g. Periodic reporting as to developments concerning the general
financial markets and public securities markets and industry
which may be relevant or of interest or concern to the Client or
the Client's business.
Notwithstanding anything contained herein to the contrary, it is clearly
understood and agreed to by the parties hereto that the aforementioned services
to be provided by Consultants shall not involve any capital raising efforts or
promotion of the Client's securities. It shall be
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expressly understood that Consultants shall have no power to bind Client to any
contract or obligation or to transact any business in Client's name or on behalf
of Client in any manner.
It is expressly understood and agreed by Client that, in reliance upon
Client's representations, warranties and covenants contained herein, immediately
upon execution and delivery of this Agreement by Client, Consultants are setting
aside and allocating for the benefit of Client valuable resources (including,
without limitation, capital and reservation of work schedules of employees)
required to fulfill Consultants' obligation described in paragraph B .1. hereof.
In doing so, Consultants agree to forebear from undertaking other opportunities
and commitments (that would result in enrichment to Consultants) in order to be
available to provide Client the services contemplated by this Agreement.
2. Term. The term ("Term") of this Agreement shall commence on the date
hereof and continue for twelve (12) months. The Agreement may be extended upon
agreement by both parties, unless or until the Agreement is terminated. Either
party may cancel this Agreement upon five (5) days written notice in the event
either party violates any material provision of this Agreement and fails to cure
such violation within five (5) days of written notification of such violation
from the other party. Such cancellation shall not excuse the breach or
non-performance by the other party or relieve the breaching party of its
obligation incurred prior to the date of cancellation, including, without
limitation, the obligation of Client to pay the nonrefundable consideration
described in paragraph B.4. hereof.
3. Due Diligence. The Client shall supply and deliver to the
Consultants all information relating to the Client Company's business as may be
reasonably requested by the Consultants to enable the Consultants to make an
assessment of the Client's company and business prospects and provide the
consulting services described in paragraph B.1. hereof.
4. Compensation and Fees. As consideration for Consultants entering
into this Agreement, Client agrees to pay and deliver to Consultants the
following consideration, which consideration is nonrefundable regardless of the
circumstances:
a. Client shall issue certificates representing an aggregate of one
million two hundred thousand (1,200,000) shares of free trading
common stock (the "Shares"), registered under S-8.
SHARES ARE PAYABLE IN TWO PAYMENTS: The FIRST PAYMENT of six
hundred thousand (600,000) shares is due upon Consultants
providing two (2) candidates for possible merger, acquisition or
strategic alliance with client, and the SECOND PAYMENT of six
hundred thousand (600,000) shares is due 60 days after the date
hereof, as long as the Agreement has not been terminated by
Client for any reason (regardless of paragraph B.2. above),
within the first fifty (50) days from the date of the Agreement.
b. The Certificates shall be issued to the Consultants in the
following manner for the FIRST PAYMENT:
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M. Xxxxxx Xxxxx will receive two hundred thousand (200,000) shares.
Xxxxxxx Xxxxxxxxx will receive two hundred thousand (200,000) shares.
Xxxxxxxx Xxxxxx will receive two hundred thousand (200,000) shares.
-AND-
The Certificates shall be issued to the Consultants in the
following manner for the SECOND PAYMENT:
M. Xxxxxx Xxxxx will receive two hundred thousand (200,000) shares.
Xxxxxxx Xxxxxxxxx will receive two hundred thousand (200,000) shares.
Xxxxxxxx Xxxxxx will receive two hundred thousand (200,000) shares.
The Shares, when issued to Consultants, will be duly authorized, validly
issued and outstanding, fully paid and nonassessable and will not be subject to
any liens or encumbrances.
Securities shall be issued to Consultants in accordance with a mutually
acceptable plan of issuance as to relieve securities or Consultants from
restrictions upon transferability of shares in compliance with applicable
registration provisions or exemptions.
After careful review and extensive discussions and negotiations between
Client and Consultants and their advisors, Client agrees that, when received by
Consultants, the above-described consideration shall be nonrefundable regardless
of the circumstances, whether foreseen or unforeseen upon execution and delivery
of this Agreement. Client further acknowledges and agrees that said
consideration is earned by Consultants: (1) upon Client's execution and delivery
of the Agreement and prior to the provision of any service hereunder; (2) in
part, by reason of Consultants' agreement to make its resources available to
serve Client and as further described in the Preliminary Statement and elsewhere
herein; and (3) regardless of whether Client seeks to terminate this Agreement
prior to consultants' delivery of any services hereunder. If Client takes any
action to terminate this Agreement or to recover any consideration paid or
delivered by Client to Consultants other than by reason of Consultants' gross
negligence or willful misconduct, Consultants shall be entitled to all available
equitable remedies, consequential and incidental damages and reasonable
attorneys' fees and costs incurred as a result thereof regardless of whether
suit is filed and regardless of whether Client or Consultants prevail in any
such suit.
5. Representations, Warrants and Covenants. The Client represents,
warrants and covenants to the Consultants as follows:
a. The Client has the full authority, right, power and legal capacity
to enter into this Agreement and to consummate the transactions
which are provided for herein. The execution of this Agreement by
the Client and its delivery to the Consultants, and the
consummation by it of the transactions which are contemplated
herein have been duly approved and authorized by all necessary
action by the Client's Board of Directors and no further
authorization shall be necessary on the part of
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the Client for the performance and consummation by the Client of
the transactions which are contemplated by this Agreement.
b. The business and operations of the Client have been and are being
conducted in all material respects in accordance with all
applicable laws, rules and regulations of all authorities which
affect the Client or its properties, assets, businesses or
prospects. The performance of this Agreement shall not result in
any breach of, or constitute a default under, or result in the
imposition of any lien or encumbrance upon any property of the
Client or cause an acceleration under any arrangement, agreement
or other instrument to which the Client is a party or by which any
of its assets are bound. The Client has performed in all respects
all of its obligations which are, as of the date of this
Agreement, required to be performed by it pursuant to the terms of
any such agreement, contract or commitment.
6. Exclusivity; Performance; Confidentiality. The services of
Consultants hereunder shall not be exclusive, and Consultants and its agents may
perform similar or different services for other persons or entities whether or
not they are competitors of Client. The Consultants agree that it will, at all
times, faithfully and in a professional manner perform all of the duties that
may be reasonably required of the Consultants pursuant to the terms of this
Agreement. Consultants shall be required to expend only such time as is
necessary to service Client in a commercially reasonable manner. The Consultants
does not guarantee that its efforts will have any impact upon the Client's
business or that there will be any specific result or improvement from the
Consultants' efforts. Consultants acknowledges and agree that confidential and
valuable information proprietary to Client and obtained during its engagement by
the Client, shall not be, directly or indirectly, disclosed without the prior
express written consent of the Client, unless and until such information is
otherwise known to the public generally or is not otherwise secret and
confidential.
7. Independent Contractor. In its performance hereunder, Consultants
and its agents shall be an independent contractor. Consultants shall complete
the services required hereunder according to his own means and methods of work,
shall be in the exclusive charge and control of Consultants and which shall not
be subject to the control or supervision of Client, except as to the results of
the work. Client acknowledges that nothing in this Agreement shall be construed
to require Consultants to provide services to Client at any specific time, or in
any specific place or manner. Payments to consultant hereunder shall not be
subject to withholding taxes or other employment taxes as required with respect
to compensation paid to an employee.
8. Arbitration and Fees. Any controversy or claim arising out of or
relating to this Agreement, or breach thereof, may be resolved by mutual
agreement; or if not, shall be settled in accordance with the Arbitration rules
of the American Arbitration Association in Irvine, California. Any decision
issued therefrom shall be binding upon the parties and shall be enforceable as a
judgment in any court of competent jurisdiction. The prevailing party in such
arbitration or other proceeding shall be entitled, in addition to such other
relief as many be granted, to a reasonable sum as and for attorney's fees in
such arbitration or other proceeding which may be determined by the arbitrator
or other officer in such proceeding. If collection is
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required for any payment not made when due, the creditor shall collect statutory
interest and the cost of collection, including attorney's fees whether or not
court action is required for enforcement. The prevailing party in any such
proceeding shall also be entitled to reasonable attorneys' fees and costs in
connection all appeals of any judgment.
9. Notices. Any notice or other communication required or permitted
hereunder must be in writing and sent by either (i) certified mail, postage
prepaid, return receipt requested and First Class mail; or (ii) overnight
delivery with confirmation of delivery; or (iii) facsimile transmission with an
original mailed by first class mail, postage prepaid, addressed as follows:
If to the Client: Patriot Scientific Corporation
Attention: Xxxxxx X. Xxxxxxxx
Address: 00000 Xxx Xxxxxxxx
Xxx Xxxxx, XX 00000
Facsimile No.: 000-000-0000
If to Consultant: Attention: M. Xxxxxx Xxxxx
00000 Xxxxxxx Xxxxxxx
Xxxx Xxxxx, XX 00000
Facsimile No: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxxx
0000 Xxxx Xxxxxx, Xxxxx #0000
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxxx Xxxxxx
0000 Xxxx Xxxxxx, Xxxxx #0000
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
or in each case to such other address and facsimile number as shall have last
been furnished by like notice. If mailing is impossible due to an absence of
postal service, and other methods of sending notice are not otherwise available,
notice shall be hand-delivered to the aforesaid addresses. Each notice or
communication shall be deemed to have been given as of the date so mailed or
delivered, as the case may be; provided, however, that any notice sent by
facsimile shall be deemed to have been given as of the date sent by facsimile if
a copy of such notice is also mailed by first class mail on the date sent by
facsimile; if the date of mailing is not the same as the date of sending by
facsimile, then the date of mailing by first class mail shall be deemed to be
the date upon which notice given.
10. Additional Provisions. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provision
and no waiver shall constitute a continuing waiver. No waiver shall be binding
unless executed in writing by the party making the waiver. No supplement,
modification, or amendment of this Agreement shall be binding unless executed in
writing by all parties. This Agreement constitutes the entire agreement
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between the parties and supersedes any prior agreements or negotiations. There
are no third party beneficiaries of this Agreement. This Agreement shall be
governed by and construed in accordance with the internal laws of the State of
California, regardless of laws of conflicts.
11. Counterparts. This Agreement may be executed simultaneously in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
12. Preliminary Statement. The Preliminary Statement is incorporated
herein by this reference and made a material part of this Agreement.
IN WITNESS WHEREOF, the parties hereto have entered into this
Agreement on the date first written above.
"CLIENT"
Patriot Scientific Corporation
Signature: /S/ XXXXXX X. XXXXXXXX
Print name: Xxxxxx X. Xxxxxxxx
Print title: Exec. V.P. & CFO
"CONSULTANTS"
Signature: /S/ M. XXXXXX XXXXX
Print name: M. Xxxxxx Xxxxx
Print title: Consultant
Signature: /S/ XXXXXXX XXXXXXXXX
Print name: Xxxxxxx Xxxxxxxxx
Print title: Consultant
Signature: /S/ XXXXXXXX XXXXXX
Print name: Xxxxxxxx Xxxxxx
Print title: Consultant
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