NATIONAL FINANCIAL COMMUNICATIONS CORP. CONSULTING AGREEMENT
Exhibit 10.12
NATIONAL FINANCIAL COMMUNICATIONS CORP.
AGREEMENT made as of the 15th day of November, 2004 by and between Great American Family Parks (GFAM), maintaining its principal offices at 000 Xxxx Xxxxx Xxxxxx, XX Xxx 0000, Xxxxx, Xxxxx (hereinafter referred to as "Client") and National Financial Communications Corp. DBA/ OTC Financial Network, a Commonwealth of Massachusetts corporation maintaining its principal offices at 000 Xxxxxxxx Xx, Xxxxx 000, Xxxxxxx, XX 00000 (hereinafter referred to as the "Company").
W I T N E S S E T H :
WHEREAS, Company is engaged in the business of providing and rendering public relations and communications services and has knowledge, expertise and personnel to render the requisite services to Client; and
WHEREAS, Client is desirous of retaining Company for the purpose of obtaining public relations and corporate communications services so as to better, more fully and more effectively deal and communicate with its shareholders and the investment banking community.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements contained herein, it is agreed as follows:
I. Engagement of Company. Client herewith engages Company and Company agrees to render to Client public relations, communications, advisory and consulting services.
A.
The consulting services to be provided by the Company shall include, but are not limited to, the development, implementation and maintenance of an ongoing program to increase the investment community's awareness of Client's activities and to stimulate the investment community's interest in Client. Client acknowledges that Company's ability to relate information regarding Client's activities is directly related to the information provided by Client to the Company.
B.
Client acknowledges that Company will devote such time as is reasonably necessary to perform the services for Client, having due regard for Company's commitments and obligations to other businesses for which it performs consulting services.
II. Compensation and Expense Reimbursement.
A.
Client will pay the Company, as compensation for the services provided for in this Agreement and as reimbursement for expenses incurred by Company on Client's behalf, in the manner set forth in Schedule A annexed to this Agreement which Schedule is incorporated herein by reference.
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Term and Termination. This Agreement shall be for a period of one-year commencing November 15, 2004 and terminating November 15, 2005. If the Client does not cancel the contract during the term, the contract will be automatically extended for an additional three months. Either party hereto shall have the right to terminate this Agreement upon 15 days prior written notice to the other party after the first 180 days.
Treatment of Confidential Information. Company shall not disclose, without the consent of Client, any financial and business information concerning the business, affairs, plans and programs of Client which are delivered by Client to Company in connection with Company's services hereunder, provided such information is plainly and prominently marked in writing by Client as being confidential (the "Confidential Information"). The Company will not be bound by the foregoing limitation in the event (i) the Confidential Information is otherwise disseminated and becomes public information or (ii) the Company is required to disclose the Confidential Informational pursuant to a subpoena or other judicial order.
Representation by Company of other clients. Client acknowledges and consents to Company rendering public relations, consulting and/or communications services to other clients of the Company engaged in the same or similar business as that of Client.
Indemnification by Client as to Information Provided to Company. Client acknowledges that Company, in the performance of its duties, will be required to rely upon the accuracy and completeness of information supplied to it by Client's officers, directors, agents and/or employees. Client agrees to indemnify, hold harmless and defend Company, its officers, agents and/or employees from any proceeding or suit which arises out of or is due to the inaccuracy or incompleteness of any material or information supplied by Client to Company.
Independent Contractor. It is expressly agreed that Company is acting as an independent contractor in performing its services hereunder. Client shall carry no workers compensation insurance or any health or accident insurance on Company or consultant's employees. Client shall not pay any contributions to social security, unemployment insurance, Federal or state withholding taxes nor provide any other contributions or benefits which might be customary in an employer-employee relationship.
Non-Assignment. This Agreement shall not be assigned by either party without the written consent of the other party.
Notices. Any notice to be given by either party to the other hereunder shall be sufficient if in writing and sent by registered or certified mail, return receipt requested, addressed to such party at the address specified on the first page of this Agreement or such other address as either party may have given to the other in writing.
Entire Agreement. The within agreement contains the entire agreement and understanding between the parties and supersedes all prior negotiations, agreements and discussions concerning the subject matter hereof.
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Modification and Waiver. This Agreement may not be altered or modified except by writing signed by each of the respective parties hereof. No breach or violation of this Agreement shall be waived except in writing executed by the party granting such waiver.
Law to Govern; Forum for Disputes. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts without giving effect to the principle of conflict of laws. Each party acknowledges to the other that courts within the City of Boston, Massachusetts shall be the sole and exclusive forum to adjudicate any disputes arising under this agreement. In the event of delinquent fees owed to the Company, Client will be responsible for pay for all fees associated with the collection of these fees.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first written above.
National Financial Communications Corp.
By:
/s/ Xxxxxxxx Xxxxx
__________________________
Xxxxxxxx Xxxxx, President Date
Great American Family Parks
By:
/s/ Xxxxx Xxxxxxxx __________________________
Xxxxx Xxxxxxxx, CEO
Date
SCHEDULE A-1
PAYMENT FOR SERVICES AND REIMBURSEMENT OF EXPENSES.
SCHEDULE A-2
GRANT OF OPTIONS TO NATIONAL FINANCIAL COMMUNICATIONS CORP. IN ADVANCE OF SERVICES RENDERED
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SCHEDULE A-1
PAYMENT FOR SERVICES
AND REIMBURSEMENT OF EXPENSES
A. For the services to be rendered and performed by Company during the term of the Agreement, Client shall pay to Company the sum of $3,000 per month in cash for the first 5 months, $9,000 at month 6, and $5,000 per month throughout the duration of contract.
B. Client shall also reimburse Company for all reasonable and necessary out-of-pocket expenses incurred in the performance of its duties for Client upon presentation of statements setting forth in reasonable detail the amount of such expenses. Company shall not incur any expense for any single item in excess of $250 either verbally or written except upon the prior approval of the Client. Company agrees that any travel, entertainment or other expense which it may incur and which may be referable to more than one of its clients (including Client) will be prorated among the clients for whom such expense has been incurred. Shares will be accepted for payment of expenses in the same manner as the base fee per month in Paragraph A above.
National Financial Communications Corp.
By:
/s/ Xxxxxxxx Xxxxx ______________________
Xxxxxxxx Xxxxx, President
Date
Great American Family Parks, Inc
By:
/s/ Xxxxx Xxxxxxxx ______________________
Xxxxx Xxxxxxxx, CEO
Date
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SCHEDULE A-2
GRANT OF OPTIONS TO NATIONAL FINANCIAL COMMUNICATIONS CORP. IN ADVANCE OF SERVICES RENDERED*
* Optional
X.
Xxxxx of Options and Option Exercise Price. As compensation for the services to be rendered by Company hereunder, Client herewith issues and grants to Company stock options (the "Options") to purchase an aggregate of 300,000 shares of Client's Common Stock at an exercise price of $1.25 per share. The Options are exercisable upon and subject to the terms and conditions contained herein. The Options are exercisable during the period commencing on the date hereof and ending three years subsequent to the termination date of this Agreement. If no free trading shares are currently available to facilitate options issuance, 300,000 restricted shares associated with this transaction will be issued to the Company upon the signing of this Agreement and held by the Client until payment is made. These restricted shares will have registration ‘piggy back’ rights and included in the next registration that the company completes.
B.
Manner of Exercise. Exercise of any of the Options by Company shall be by written notice to Client accompanied by Company's certified or bank check for the purchase price of the shares being purchased. Upon receipt of such notice and payment, Client shall promptly cause to be issued, without transfer or issue tax to the option holder or other person entitled to exercise the option, the number of shares for which the Option has been exercised, registered in the name of Company. Such shares, when issued, shall be fully paid and non-assessable.
C.
Option Shares. Company acknowledges that any shares which it may acquire from Client pursuant to the exercise of the Options provided for herein will not have been registered pursuant to the Securities Act of 1933, as amended (the "Securities Act"), and therefore may not be sold or transferred by Company except in the event that such shares are the subject of a registration statement or any future sale or transfer is, in the opinion of counsel for Client, exempt from such registration provisions. Company acknowledges that any shares which it may acquire pursuant to the exercise of the Options will be for its own account and for investment purposes only and not with a view to the resale or redistribution of same. Company further consents that the following legend be placed upon all certificates for shares of Common Stock which may be issued to Company upon the exercise of the Options:
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"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED."
Company further consents that no stop transfer instructions being placed against all certificates may not be issued to it upon the exercise of the Options.
(i)
If the Client executes a Registration during the term of the contract, then the Company's shares will be added to this Registration at no cost to the Company. The Client shall bear all costs and expenses attributable to such registration, excluding fees and expenses of Company's counsel and any underwriting or selling commission. Client shall maintain the effectiveness of such registration throughout the term of this Agreement and for a 120 day period thereafter.
(ii)
Notwithstanding the foregoing, if the Shares issuable upon exercise of the Options are not otherwise registered under the Securities Act and the Client shall at any time after the date hereof propose to file a registration statement under the Securities Act, which registration statement shall include shares of Common Stock of Client or any selling shareholder, Client shall give written notice to Company of such proposed registration and will permit Company to include in such registration all Shares which it has acquired as of the date of such notice. The Client shall bear all costs and expenses attributable to such registration, excluding fees and expenses of Company's counsel and any underwriting or selling commission.
D.
Adjustments in Option Shares.
(i) In the event that Client shall at any time sub-divide its outstanding shares of Common Stock into a greater number of shares, the Option purchase price in effect prior to such sub-division shall be proportionately reduced and the number of shares of Common Stock purchasable shall be proportionately increased. In case the outstanding shares of Common Stock of Client shall be combined into a smaller number of shares, the Option purchase price in effect immediately prior to such combination shall be proportionately increased and the number of shares of Common Stock purchasable shall be proportionately reduced.
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(ii)
In case of any reclassification or change of outstanding shares of Common Stock issuable upon exercise of this Option (other than change in par value, or from par value to no par value, or from no par value to par value, or as a result or a subdivision or combination), or in case of any consolidation or merger of the Client with or into another corporation (other than a merger in which the Client is the continuing corporation and which does not result in any reclassification or change of outstanding shares of Common Stock, other than a change in number of the shares issuable upon exercise of the Option) or in case of any sale or conveyance to another corporation of the property of the Client as an entirety or substantially as an entirety, the Holder of this Option shall have the right thereafter to exercise this Option into the kind and amount of shares of stock and other securities and property receivable upon such reclassification, change, consolidation, merger, sale or conveyance by a holder of the number of shares of Common Stock of the Client for which the Option might have been exercised immediately prior to such reclassification, change, consolidation, merger, sale or conveyance. The above provisions shall similarly apply to successive reclassifications and changes of shares of Common Stock and to successive consolidations, mergers, sales or conveyances.
(iii) The Company reserves the right to assign these options to a third party at its own discretion.
National Financial Communications Corp.
By:
/s/ Xxxxxxxx Xxxxx _______________________
Xxxxxxxx Xxxxx, President Date
Great American Family Parks, Inc
By:
/s/ Xxxxx Xxxxxxxx _______________________
Xxxxx Xxxxxxxx, CEO
Date
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