Exhibit 10.1
CONSULTING AGREEMENT
THIS AGREEMENT is made this 25th day of October, 2004 by and between
Noxso Corporation (the "Corporation"), a Virginia corporation with offices at
0000 Xxxxx 000 Xxxx, Xxxxxxxxx, Xxxx 00000, and Parkview Partners, ltd
("Consultant"), with offices at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
WHEREAS Consultant is highly experienced in the development and
analysis of consulting services and the valuation of both public and private
companies, and is well known for its services within the financial community;
and
WHEREAS, as a result of its activities, Consultant has become aware of
potential business opportunities and sources of bridge financing for the
Corporation; and
WHEREAS, the Corporation wishes to utilize the Consultant's services to
advise it with respect to its business development and to introduce it to
potential sources of funding to help it in implementing its business plan.
NOW, THEREFORE, the parties agree that in consideration of the premises
and mutual covenants hereinafter set forth, the Corporation and Consultant agree
as follows:
1. Consultant Services. Consultant shall assist the Corporation on a
non-exclusive basis in the development and implementation of its consulting
services on behalf of the Corporation and shall use its best efforts to
introduce the Corporation to potential investors and agents (the "Investors")
for the purpose of procuring funding for the Corporation. All Investors to be
introduced by Consultant to the Corporation shall be "Accredited" Investors, as
that term is understood and defined by Regulation D under the Securities Act of
1933. In connection with its duties, Consultant shall:
a. Subject to the Company's approval, to negotiate the terms
and conditions of any bridge financing by an Investor along the lines
of (but not restricted to) the terms and conditions set forth in the
term sheet annexed as Exhibit A to this Agreement; and
b. Assist the Corporation in the preparation of any necessary
documentation in connection with any investment/financing by an
Investor.
2. Designation of a Broker-Dealer. Should the Corporation determine to
enter into a transaction as a result of an introduction by Consultant, said
transaction may be completed through a registered Broker Dealer designated by
the Consultant and reasonably acceptable to the Corporation. It is understood
that Consultant and the Corporation believe that the necessity to be minimal for
a Broker Dealer in the transaction contemplated by Exhibit A; nevertheless, in
the event of the necessity of a Broker-Dealer, the parties shall mutually agree,
in advance, as to the designation of the Broker Dealer for the purposes of a
transaction pursuant to this Agreement. Should a Broker Dealer be necessary,
then the Broker-Dealer shall:
a. Accept delivery from the Corporation of all loan or bridge
loan to be issued pursuant to the terms of the agreement between the
Corporation and the Investor introduced by Consultant. Such loan or
bridge loan shall be for a minimum of $2,000,000, subject to final
terms and negotiation between the parties, hereto;
b. Accept the funding to be made by the Investor and/or
payment by the Investor for any shares issued by the Corporation; and
c. On satisfaction of the terms of any agreement between the
Corporation and said Investor, release said paperwork and funds as
directed.
3. Compensation. In return for its work on behalf of the Corporation,
Consultant shall be entitled to receive:
a. A cash fee equal to 6% of the principal amount of any funds
procured and/or invested by an Investor secured pursuant to this
Agreement. The amount due to the Consultant shall be reduced by the
amount of any fee payable to the Broker Dealer in connection with this
transaction; and
b. Warrants issued by the Corporation (the "Warrants") to
purchase 500,000 shares of restricted common stock of the Corporation
(the "Warrant Shares"). The Warrants shall be for a term of three (3)
years from the date of issuance, and shall be exercisable at a price
equal to 120% of the price of the Corporation's common stock on the day
of closing. The Warrants shall be subject to either a cash exercise or
net issue (cashless) exercise.(1)
c. Consultant shall be entitled to receive the compensation
provided for in paragraphs 3 (a) and (b) above should the Corporation
obtain funding or financing from any Investor first introduced to the
Corporation by Consultant pursuant to Exhibit A of this Agreement if
said proceeds are received by the Corporation at any time within three
(3) years of the identification of said Investor to the Corporation by
Consultant.
4. Registration Rights. If at any time or from time to time following
the execution of this Agreement as set forth below, the Corporation shall
determine to register any of its securities, either for its own account or the
account of a security holder or holders other than a registration relating
solely to employee benefit plans, then the Corporation shall:
a. Promptly give written notice of such proposed Registration
to the Consultant and offer Consultant the right to request inclusion
of any of the Warrant Shares in the proposed Registration;
b. Consultant shall have ten (10) days or such longer period
as shall be set forth in the notice from the receipt of the notice to
deliver to the Corporation a written request specifying the number of
Warrant Shares Consultant intends to sell;
c. If the registration of which the Corporation gives notice
is for a registered public offering involving an underwriting, the
Corporation shall so advise the Consultant. In such event, the right of
the Consultant to registration pursuant to this Agreement shall be
conditioned upon Consultant's participation in such underwriting and
the inclusion of its securities on the same terms and conditions as the
shares of common stock, if any, otherwise being sold through
underwriters under such registration.
5. Term. This Agreement shall commence with immediate effect and shall
remain in force for a term of one (1) year from the date of execution. During
this term, the Corporation agrees that:
a. For a period of ten (10) days from the date of execution of
this Agreement (the "Exclusive Period"), Consultant shall have the
exclusive right to act on behalf of the Corporation to provide the
services specified in Section 1 of this Agreement and to identify
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(1) The net issue exercise shall be calculated using the following formula:
X=Y (A-B)
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A
X = the number of the Shares to be issued to the Holder
Y = the number of the Shares purchasable under this Warrant
A = the fair market value of one Share on the date of
determination
B = the per share Exercise Price (as adjusted to the date of
such calculation)
Investors for the Corporation as provided for there in. Should the
Corporation commence negotiations with and/or enter into an Agreement
with any party during the Exclusive Period Consultant shall be entitled
to receive the compensation provided for in paragraph 3, above in the
same amount as if said investor had be identified or procured by
Consultant;
b. During the remaining term of this Agreement, provided that
Consultant has identified an Investor for the Corporation during the
Exclusive Period with whom the Corporation has entered into an
Agreement with and/or received an investment or funding or financing
from, the Consultant shall have a right of first refusal to assist in
obtaining funding for the Corporation on such terms and conditions as
is otherwise available to the Corporation.
6. Representations and Warranties by the Corporation. The Corporation
represents and warrants as follows:
a. The Corporation is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware
and has the full corporate power and authority and legal right to enter
into this Agreement and to perform the transactions contemplated
hereby;
b. This Agreement has been duly authorized by it and duly
executed and delivered by it and constitutes, and each document or
instrument executed by it pursuant to the terms hereof constitutes, a
valid and binding obligation of it enforceable in accordance with its
terms;
c. The execution, delivery and performance of this Agreement
and a consummation of the transactions contemplated hereby will not
violate its organizational documents or result in a breach of, or
constitute a default under, any agreement or other instrument to which
it is a party or by which it or any of its properties is bound;
d. The Corporation has all material permits, licenses, orders
and approvals of all federal, state, local and foreign governmental or
regulatory bodies, or professional bodies or organizations, required of
it to carry on its business as presently conducted; all such permits,
licenses, orders, franchises and approvals are in full force and
effect, and to the knowledge of the Corporation, after reasonable
inquiry, no suspension or cancellation of any of such permits,
licenses, etc., is threatened; and the Corporation is in compliance in
all material respects with all requirements, standards and procedures
of the federal, state, local and foreign governmental bodies or
professional bodies or organizations which have issued such permits,
licenses, orders, franchises and approval; and
e. Neither this Agreement nor any letter, certificate or other
document furnished in connection herewith contains any untrue statement
of a material fact or omits to state a material fact necessary to make
the statements contained herein or therein not misleading.
7. Indemnification. The Corporation agrees to indemnify and hold
harmless Consultant from and against any and all losses, claims, damages,
obligations, penalties, judgments, awards, liabilities, costs, expenses and
disbursements, directly or indirectly caused by, relating to, based on, or
arising out of or in connection with: a) Consultant acting for the Corporation;
b) any financing procured by Consultant for the Corporation; c) any untrue
statement or alleged untrue statement of a material fact contained in, or
omission or alleged omission of a material fact from, any business plan or
offering memorandum of the Corporation from any information furnished by the
Corporation to Consultant; and d) from any use of the proceeds from an Investor
by the Corporation. Such indemnification shall not apply to any losses, claims,
damages, obligations, penalties, judgments, awards, liabilities, costs, expenses
and disbursements to the extent it is found in a final judgment by a court of
competent jurisdiction to have resulted primarily and directly from the gross
negligence, willful misconduct, or unlawful conduct of Consultant.
The Consultant agrees to indemnify and hold harmless the Corporation
from and against any and all losses, claims, damages, obligations, penalties,
judgments, awards, liabilities, costs, expenses and disbursements, directly or
indirectly caused by, relating to, based on, or arising out of or in connection
with: (a) Consultant acts or representations not approved by the Corporation;
(b) any untrue statement or alleged untrue statement of a material fact
contained in, or omission or alleged omission of a material fact from, any
offering documents or offering analysis of the Corporation from any information
furnished by the Consultant to Investors or others not prepared by the
Corporation; and (c) any act or omission by Consultant not in compliance with
federal or state securities laws, including any act or omission in connection
with a financing arranged by the Consultant. Such indemnification shall not
apply to any losses, claims, damages, obligations, penalties, judgments, awards,
liabilities, costs, expenses and disbursements to the extent it is found in a
final judgment by a court of competent jurisdiction to have resulted primarily
and directly from the gross negligence, will misconduct, or unlawful conducts of
the Corporation.
8. Confidential Information. Each party agrees that such party and its
representatives will hold in strict confidence all information and documents
received from the other party in connection with this Agreement, including such
information as relates to any potential Investor, research and development
information on said Investor, and non public financial information. Each party
agrees that it will hold all Confidential Information in confidence and not
discuss, communicate or transmit the Confidential Information to others for any
improper purpose or make any unauthorized copy of use of any Confidential
Information, and will take such steps as required to prevent the use or
disclosure of any Confidential Information except in connection with a party's
performance under this Agreement. Notwithstanding the foregoing, each party's
obligations under this Section 8 to maintain such confidentiality shall not
apply to any information or documents that are in the public domain at the time
furnished by the others or that become in the public domain thereafter through
any means other than as a result of any act of the receiving party or of its
agents, officers, directors or stockholders which constitutes a breach of this
Agreement, or that are required by applicable law to be disclosed. The parties
agree that the remedy at law for any breach of this Section 8 will be inadequate
and a non-breaching party will be entitled to injunctive relief to compel the
breaching party to perform or refrain from action required or prohibited
hereunder. The parties acknowledge and agree that this Agreement may constitute
a material contract of the Corporation and, as a result, will be publicly
disclosed by the Corporation in its filings with the Securities and Exchange
Commission.
9. Relationship of The Parties. It is understood and agreed by the
parties hereto that this Agreement does not create a fiduciary relationship
between them and that Consultant's relationship to the Corporation shall be as
an independent contractor. Nothing in this Agreement is intended to make either
party a general or special agent, legal representative, subsidiary, joint
venturer, partner, employee or servant of the other for any purpose or to confer
upon either party the right of a third party beneficiary.
10. Severability. Except as expressly provided to the contrary herein,
each section, paragraph, term and provision of this Agreement, and any portion
thereof, shall be considered severable and if, for any reason, any such portion
of this Agreement is held to be invalid or contrary to or in conflict with any
applicable present or future law or regulation in a final, unappealable ruling
issued by any court, agency or tribunal with competent jurisdiction in a
proceeding to which the Corporation or Consultant is a party, that ruling shall
not impair the operation of, or have any other effect upon, such other portions
of this Agreement.
11. Notices:
a. All notices, requests, demands and other communications
under this Agreement or in connection therewith shall be given to be
made upon the respective parties hereto at the following addresses:
The Corporation: Noxso Corporation
Attn: President
0000 Xxxxx 000 Xxxx
Xxxxxxxxx, Xxxx 00000
To Consultant: Parkview Partners, Ltd
Attn: President
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
b. All notices, requests, demands and other communications
given or made in accordance with the provisions of this Agreement shall
be in writing, shall be forwarded by registered or certified mail,
return receipt requested, and, unless otherwise expressly provided
herein to the contrary, shall be deemed to have been given when
deposited postage prepaid, addressed as specified in the preceding
paragraph.
12. Construction
a. This Agreement shall be binding upon and inure to the
benefit of the parties hereto, their legal representatives, successors,
heirs and permitted assigns;
b. This Agreement shall be deemed to be a contract made under
the laws of the State of New York, and for all purposes shall be
interpreted in its entirety with the laws of said State. The parties
hereby consent to the exclusive jurisdiction of the United States
District Courts for the Southern District of New York, or such other
New York courts of appropriate jurisdiction, to resolve any disputes
arising out of or in connection with this Agreement, and shall take
such actions as are required to afford said courts jurisdiction over
them; and
c. For purposes of this Agreement, words of the masculine
gender shall, where applicable, mean and include the correlative words
of the feminine or neuter genders, and words importing the plural
number shall, where applicable, mean and include the singular number
and vice versa.
13. Attorneys Fees. If any party files any action or brings any
proceeding against other arising from this Agreement, the prevailing party shall
be entitled to recover as an element of their cost to suit and not as damages
reasonable attorney's fees to be fixed by the court. The prevailing party shall
be the party entitled to recover their cost to suit or arbitration, whether or
not entitled to recover costs.
14. Modification. No amendment or modification of this Agreement shall
be valid or binding upon the parties unless made in writing, signed on behalf of
each of the parties by their respective proper officers thereunto duly
authorized.
15. No Waiver. The failure by either of the parties hereto to object to
or take affirmative action with respect to any conduct of any of the other
parties hereto which constitutes a breach or other violation of this Agreement
shall not constitute, nor be construed as, a waiver thereof, or of any future
breach, violation or subsequent wrongful conduct.
16. Captions. All paragraph headings used herein are for convenience of
reference purposes only and shall be given no significance in the interpretation
of the provisions, terms and conditions hereof.
17. Multiple Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original hereof, but
all of which shall constitute one and the same instrument.
18. Further Assurances. The parties shall each perform such acts,
execute and deliver such instruments and documents, and do all such other things
as may be reasonably necessary to accomplish the transactions contemplated in
this Agreement.
19. Entire Agreement. This Agreement sets forth the entire
understanding and supersedes all prior and contemporaneous agreements between
the parties relating to the subject matter of this Agreement and merges all
prior and contemporaneous discussions between them, and neither party shall be
bound by any definition, condition, representation, warranty, covenant or
provision other than as expressly stated in or contemplated by this Agreement or
as subsequently shall be set forth in writing and executed by a duly authorized
representative of the party to be bound.
IN WITNESS WHEREOF, the respective duly authorized representatives of
the parties have caused this Agreement to be executed as of the date first above
written.
NOXSO Corporation Parkview Partners, Inc.
By: /s/ Xxxxxxx Xxxxxxxx By: /s/ Xxx Xxxxx
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President President
EXHIBIT A
[Subject to completion]
