CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made on March __, 2000
by and among Thermacell Technologies, Inc., a Florida corporation (the
"Company"), and CFM Management Group, LLC, a Florida limited liability
corporation or assigns (the "Consultant").
WHEREAS, Company requires the Consultant's consulting services as
described herein; and
WHEREAS, the Company desires to engage the Consultant, and the
Consultant desires to be engaged, to provide consulting services in accordance
with and subject to the terms and conditions of this Agreement.
NOW THEREFORE, in consideration of the mutual promises,
representations, warranties and covenants contained herein, and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto, each intending to be legally bound, hereby
agree as follows:
ARTICLE 1.: CONSULTING SERVICES
1.1. Duties and Responsibilities; Additional Consulting Services. The
Company hereby retains the Consultant to provide consulting services
(collectively, the "Services") to or on behalf of the Company as contemplated in
this Agreement. The scope of such consulting Services shall be as determined and
directed by the Company's Board of Directors (the "Board of Directors"). The
Services shall include consulting services in connection with strategic and
financial planning; corporate organization and structure; financial and investor
public relations; private and public equity and debt financing, and periodic
review of the Company's overall progress, needs and financial condition.
1.2. Term. The term (the "Term") of this Agreement shall commence on the
date hereof and shall continue for a period of two (2) years.
1.3 Non-Exclusive. The services of Consultant are non-exclusive and,
subject to paragraph 4.3 hereof, Consultant may render services of the same or
similar nature, as described herein, to an entity whose business is in
competition with the Company, directly or indirectly.
ARTICLE 2.: COMPENSATION
2.1. Consulting Fee. As compensation for the Services, the Company shall
pay the Consultant the following:
(a) A monthly consulting fee (the "Monthly Fee") of $10,000, which
shall be paid on or before the fifth (5th) business day of each
month during the Term; and
(b) The Company hereby grants to Consultant options to purchase (the
"Options") the Company's $.0001 par value per share common stock
(the "Common Stock") in the following amounts and at the
following exercise prices:
i. One million shares of Common Stock at the exercise
price of Sixty cents ($.60) per share;
ii. One million shares of Common Stock at the exercise
price of One Dollar ($1.00) per share; and
iii. One million shares of Common Stock at the exercise
price of One Dollar and Twenty-Five Cents ($1.25) per
share.
The Options shall be exercisable, in whole or in part, for a
period of three years from the date hereof. The shares of
Common Stock underlying the Options (the "Shares") shall be
subject to the registration rights set forth in Section 5.1
hereof.
(c) Finder's Fee. In the event Consultant provides services in
connection with a debt or equity financing, acquisition, merger,
corporate sale, business combination or similar such transaction
for Company or in the event Consultant introduces Company to any
of the above transactions through an intermediary, including but
not limited to investment banking firms, brokers, etc., the
Company shall pay a separate and additional fee to Consultant at
the time of closing of such transaction(s), in accordance with
applicable industry standards and mutually agreed upon by
Consultant and the Company prior to such closing(s).
2.2. Adjustment. The amount and exercise price of securities purchasable
upon the exercise of the Options shall be subject to adjustment in the event
that the Company engages in any subdivision of its Common Stock so that the
Consultant shall be entitled to receive the kind and number of Shares of Common
Stock which it would have been entitled to receive had the subdivision not taken
place.
ARTICLE 3.: EXPENSES & INDEMNIFICATION
3.1. Expenses. The Company shall reimburse the Consultant for all
reasonable travel and client-related expenses incurred by the Consultant in the
course of the discharge of its duties hereunder. All requests for reimbursement
of expenses by the Consultant must be supported by appropriate receipts and
documentation as the Board of Directors may reasonably require. Notwithstanding
any other provision of this Agreement, the Consultant agrees and acknowledges
that any expenses which exceed an aggregate of $1,000 in any one month must be
approved in advance by the Board of Directors to be eligible for reimbursement
hereunder.
3.2. Indemnification. The Company agrees to indemnify and hold Consultant,
its affiliates, control persons, officers, employees and agents (collectively,
the "Indemnified Persons") harmless from and against all losses, claims,
damages, liabilities, costs or expenses (including reasonable attorneys' and
accountants' fees) joint and several arising out of the performance of this
Agreement, whether or not Consultant is a party to such dispute. This indemnity
shall not apply, however, where a court of competent jurisdiction has made a
final determination that Consultant engaged in gross recklessness and willful
misconduct in the performance of its services hereunder which give rise to the
loss, claim, damage, liability, cost or expense sought to be recovered hereunder
(but pending any final determination, the indemnification and reimbursement
provision of this Agreement shall apply the Company shall perform its
obligations hereunder to reimburse Consultant for its expenses).
ARTICLE 4.: TERMINATION & CONFIDENTIALITY
4.1. Right to Terminate. In the event of the Consultant's repeated failure
or refusal to perform his duties and responsibilities hereunder (written notice
of which (including detailed descriptions of such failures or refusals) must be
provided to the Consultant), or in the event of any gross fraud or dishonesty on
the part of the Consultant, the Company may, in its sole discretion, upon
written notice to the Consultant, terminate this Agreement. The Consultant may
terminate this Agreement upon ninety (90) days written notice to the Company. In
the event of any such termination, such Consultant shall be entitled to receive
any Monthly Fees earned but unpaid through the date of such notice, together
with any outstanding business expenses reimbursable pursuant to Section 3.1
hereof. Termination of this Agreement shall not effect Consultant's rights with
respect to the Options or the Shares, including without limitation, the
registration rights provided in Section 5.1 hereof, which expressly survive
termination of this Agreement.
4.2. Return of the Company's Property. If this Agreement is terminated for
any reason, the Consultant shall promptly return to the Company, postage paid,
any and all equipment, documents (including all copies thereof) and any other
material of any type or nature whatsoever supplied to the Consultant by the
Company. Title to any equipment or material furnished to the Consultant shall
remain in the Company and the Consultant shall have no ownership interest
whatsoever in any of this equipment or material. The Company shall pay all costs
and expenses associated with any such return.
4.3 Confidentiality. Consultant will not disclose to any other person, firm
or corporation, nor use for its own benefits, during or after the term of this
Agreement, any trade secrets or other information designated as confidential by
the Company which is acquired by Consultant in the course of performing services
hereunder. (A trade secret is information not generally known to the trade which
gives the Company and advantage over its competitors. Trade secrets can include,
by way of example, products or services under development, production methods
and processes, sources of supply, customer lists, marketing plans and
information concerning the filing or pendency of patent applications).
ARTICLE 5.: MISCELLANEOUS
5.1 Piggyback Registration Rights.
(a) Notice Requirement. If at any time during the period (the
"Registration Rights Period") beginning on the first anniversary
of the date of this Agreement and ending on the fifth anniversary
of this Agreement the Company proposes to register any shares of
Common Stock under the Securities Act of 1933 (as amended) or any
applicable state securities laws (collectively referred to as the
"Securities Laws") in connection with an offering (an "Offering")
of the Common Stock, the Company shall deliver to the Consultant
notice of its intention to register such shares (the
"Registration Notice") at least thirty (30) days prior to any
filing of a registration statement.
(b) Registration Obligation. If the Consultant delivers written
notice of his intent to exercise his registration rights
hereunder to the Company no later than thirty (30) days after the
Consultant receives the Registration Notice, the Company shall,
subject to the terms and conditions of this Section 5.1, register
under the Securities Laws the number of shares that Consultant
requests by inclusion of such shares in the applicable
registration statement. The Consultant's notice to the Company
shall include the number of shares it intends to register along
with any other information that the Company may request in the
Registration Notice.
(c) Registration Expenses. The Company shall pay all expenses related
to each registration of Shares hereunder.
ARTICLE 6.: MISCELLANEOUS
6.1. Notices. All notices and all other communications provided for in this
Agreement shall be in writing and shall be given by hand delivery or nationally
recognized overnight delivery service, addressed as follows:
If to the Consultant:
CFM Management Group, LLC
0000 X. Xxxxxxx Xxxxxxx, Xxxxx 000
Xx. Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx, Esq.
If to the Company:
Thermacell Technologies, Inc.
000 Xxxxxxxx Xxxx.
Xxxxxxx Xxxxx, Xxxxxxx
Attention: President
or to such other address or addresses as either party may designate by notice
pursuant to this Section 5.1. Any such notice shall be effective upon delivery.
6.2. No Violations of Law; Exclusivity. It is the intent of the parties
hereto that the performance of each party's obligations hereunder not violate
any applicable law or regulation, including, without limitation, the Securities
Exchange Act of 1934, as amended, the regulations promulgated thereunder, as the
laws of any state. The Company agrees that it will not consummate any financing
transaction with any individual or entity which is (a) introduced to the Company
by Consultant or (b) a client of Consultant except in accordance with all of the
terms and conditions hereof.
6.3. Power and Authority. Each party hereto hereby covenants and represents
to the other party that the first party has the full power and authority to
enter into this Agreement, and that entering into this Agreement will not
violate any law, statute, ordinance or contractual provision in any way.
6.4. Assignment. This Agreement may not be assigned by the Company without
the prior written consent of Consultant.
6.5. Authority. The parties hereto acknowledge and agree that this
Agreement does not create a fiduciary relationship between the Consultant and
the Company, that the Consultant shall be an independent contractor with respect
to the Company, and that nothing in this Agreement is intended to constitute or
appoint the Consultant as an agent, legal representative, partner, employee or
servant of the Company for any purpose whatsoever. The Consultant agrees and
acknowledges that the Company shall not in any event assume liability for or be
deemed liable hereunder as a result of any contract, agreement understanding,
debt or obligation entered into by the Consultant on behalf of the Company
without the Company's express prior written consent. As an independent
contractor, the Consultant shall have no right or authority, either expressed or
implied, to assume or create on behalf of the Company any obligation or
responsibility of whatever kind or nature. The authority of the Consultants
hereunder is strictly limited to the performance of the Services as described
herein. The Company understands and acknowledges that the Consultant is not a
registered broker/dealer or investment advisor and it is hereby acknowledged by
the Company that the Consultant will not be acting in those capacities.
6.6. Waiver, Governing Law, Arbitration. No waiver by any party hereto at
any time of any breach by any party hereto of any condition or provision of this
Agreement shall be deemed a waiver of any subsequent breach of this Agreement.
The validity, interpretation, construction and performance of this Agreement
shall be governed by the laws of the State of Florida. Any dispute or
controversy which arises hereunder or in connection with the matters contained
in this Agreement shall be conclusively determined by final and binding
arbitration in Broward County, Florida in accordance with the Commercial
Arbitration Rules of the American Arbitration Association then in force unless
the parties mutually agree otherwise in writing. The arbitration shall take
place in Broward County, Florida. The determination of the arbitrator or
arbitrators shall be final and binding upon the parties, and judgment upon the
award may be entered in any court having jurisdiction thereof. The arbitrator or
arbitrators shall prepare a written report stating its or their decision and a
reasonably detailed analysis of the factors that led to such decision within
thirty (30) days after the appointment of the final arbitrator to be appointed.
Notwithstanding the foregoing, the Consultant may institute a proceeding in a
court of competent jurisdiction to enforce its rights with respect to the
Options, the Shares and the registration rights set forth in Section 5.1 hereof.
6.7. Validity, Integration, Oral Termination, Modification. The invalidity
or unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement, which shall
remain in full force and effect. This Agreement contains the final, complete and
exclusive expression of the understandings among the parties regarding the
matters discussed herein and supersedes any prior agreement or representation,
oral or written, by any party. This Agreement cannot be changed or terminated
orally. Any amendment or modification of this Agreement or any provision of it
will be valid and effective only if it is written and signed by or on behalf of
each party to this Agreement.
6.8. Exhibits and Headings. Each exhibit, schedule and document referred to
in this Agreement, attached to it or delivered pursuant to it is an integral
part of it and is incorporated herein by reference. The titles and headings
preceding the text of the sections of this Agreement have been inserted solely
for the convenience of reference and neither constitute a part of this Agreement
nor affect its meaning, interpretation or effect.
6.9. Attorneys' Fees. If any suit or other legal proceeding is brought for
the enforcement of any of the provisions of this Agreement, the parties hereto
agree that the prevailing party or parties shall be entitled to recover from the
other party or parties, upon final judgment on the merits, reasonable attorneys'
fees, including attorneys' fees for any appeal, and the costs incurred in
bringing such suit or proceeding.
6.10. Continuing Obligations. The expiration or termination of this
Agreement for any reason shall not affect any provisions hereof which are
expressed to remain in full force and effect notwithstanding such termination,
including, without limitation, Sections 2.2, 3.1, 3.2, 4.2, 4.3, 5.1, 6.1, 6.2,
6.6 and 6.9.
IN WITNESS WHEREOF, the parties hereto have executed this Consulting
Agreement as of the date first above written.
CFM MANAGEMENT GROUP, LLC
By:
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Name:
Title:
THERMACELL TECHNOLOGIES, INC.
By:
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Name:
Title:
