CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT made this 1 day of November , 1997 by and between:
A R FORTUNE, INC.
and
CYBERAMERICA CORPORATION.
herein after referred as the parties.
WITNESSETH:
WHEREAS, A R Fortune, Inc., (Fortune) is a corporate relations, direct
marketing, publishing, and advertising firm with expertise in the dissemination
of information about publicly traded companies, and is in the business of
providing and the development of corporate relations services, public relations
services, publishing, advertising services, fulfillment services, marketing of
business formats and opportunities and other related programs, services and
products: and
WHEREAS, CyberAmerica Corporation, (CYAA), the Company, is publicly
held with its common stock trading on one or more stock exchanges and/or
over-the counter: and
WHEREAS, CYAA desires to publicize itself with the intention of making
its name and business better known to its shareholders, investors, and brokerage
houses: and
WHEREAS, Fortune is willing to accept CYAA as a client.
WHEREAS, CYAA requires corporate relations services and desires to
employ and/or retain Fortune to provide such services as an independent
contractor, and Fortune is agreeable to such a relationship and/or arrangement
and the parties desire a written document formalizing and defining their
relationship and evidencing the terms of their agreement.
THEREFORE,in consideration of the mutual covenants contained herein, it is
agreed as follows:
DEFINITIONS AND INTERPRETATIONS
1. Caption and Section Numbers
The headings and section references in this Consulting Agreement are
for the convenience and reference only and do not form a part of this
Agreement and are not intended to interpret, define or limit the scope,
extent or intent of this Consulting Agreement or any provisions thereof
2. Extended Meanings
The Words hereof, herein, hereunder and similar expressions used in any
clause, paragraph or section of this agreement will relate to the whole
of this Consulting Agreement and not to that clause, paragraph or
section only, unless otherwise expressly provided.
3. Number and Gender
In this Consulting Agreement words importing the masculine gender
include the feminine or neuter gender and words in the singular include
the plural, and vice versa.
4. Section References and Schedules
Any reference to a particular article, section, paragraph or other
subdivision of this Consulting Agreement and any reference to a
schedule, exhibit or addendum by name number and/or letter will mean
the appropriate schedule, exhibit or addendum attached to this
Consulting Agreement and by such reference is incorporated into and
made part of this Consulting Agreement.
5. Appointment
CyberAmerica Corporation, hereby appoints and engages A R Fortune, Inc.
as its corporate relations counsel and hereby retains and employs
Fortune the terms and conditions of this Consulting Agreement. Fortune
accepts such appointment and agrees to perform the services upon the
terms and conditions of said Consulting Agreement.
6. Engagement
Company engages Fortune to publicize the Company to brokers,
prospective investors and shareholders and as further described below
and subject to the further provisions of this Consulting Agreement.
Fortune hereby accepts said engagement and Company as a client, and
agrees to publicize Company as further described below and subject to
the further provisions of this Consulting Agreement.
7. Authority and Description of Services
During the term of this agreement Fortune shall furnish various
professional services and advice as specifically requested by CYAA, or
its written designated appointee for the Company. Said professional
services and advice shall relate to those services, items and subjects
as described as follows: Fortune shall be available to Company to field
calls from firms and brokers inquiring about Company.
8. Terms of Agreement
This agreement shall become affective upon execution as of November 1,
1997 hereof and subject to the provisions of paragraph 25, shall
continue thereafter for one year and month, up to and including 30th of
October, 1998, or in the case of specific services until such time as
such matters are finalized to the satisfaction of both Company and
Fortune. It is expressly acknowledged and agreed by and between the
parties hereto that Fortune shall not be obligated to provide any
services and/or perform any work related to this Consulting Agreement
until such time the agreed and/or specified retainer (deposit, initial
fee, down-payment) in US funds, and/or specified and/or agreed valuable
consideration, has been received by Fortune.
9. Where Services Shall Be Performed
All services shall be performed at the main office location of Fortune
or other such designated location(s) as Fortune and Company agree are
the most advantageous for the work to be performed.
10. Limitations On Services
The parties hereto recognize that certain responsibilities and
obligations are imposed by federal and state securities laws and by the
applicable rules and regulations of stock exchanges the National
Association of Securities Dealers, in-house due diligence or compliance
departments of brokerage houses, etc. Accordingly, Fortune agrees as
follows:
a. Fortune shall not release any financial or other information
or data about Company without the written consent and approval
of Company.
b. Fortune shall not conduct any meetings with financial analysts
without informing Company in advance of any proposed meeting,
and Company may elect to have a representative of Company
attend such meeting.
c. Fortune shall not release any information or data about
Company to any selected or limited person(s), entity, or group
if Fortune is aware that such information or data has not been
generally released or promulgated.
d. After notice by Company of filing for a proposed public
offering of securities of Company, and during any period of
restriction on publicity, Fortune shall not engage in any
public relations efforts not in the normal course without
approval of the Company, if any.
e. Fortune hereby agrees, warrants and contracts that in
conjunction with any advertising or promotional material which
Fortune shall disseminate to third parties under this
agreement, Fortune shall also provide full and accurate
disclosure of any and all equity compensation which Fortune
has received or will receive under this agreement to the full
extent required under the Securities Exchange Act of 1934.
f. Notwithstanding any other provision of this agreement, Fortune
hereby agrees to indemnify the company against any judgement,
fines, penalties or other damages sustained by company as a
result of Fortune's breach of the provisions contained in
10(a-d).
11. Duties Of Company
a. Company shall supply Fortune on a regular and timely basis
with all approved data and information about Company, its
management, its products, and its operations and Company shall
be responsible for advising Fortune of any facts which would
affect the accuracy of any prior data and information
previously supplied to Fortune so that Fortune may take
corrective action.
b. Company shall promptly supply Fortune with full and complete
copies of all filings with all federal and state securities
agencies; with full and complete copies of all shareholders
reports and communications whether or not prepared with the
assistance of Fortune with all data and information supplied
to any analyst, broker dealer, market maker, or other member
of the financial community: and with all product/services
brochures, sales materials, etc. Company shall supply Fortune
within 20 days of execution of this Consulting Agreement, with
a list of all shareholders on 3-1/2 inch computer disk in
Windows or some other common, universal format.
c. Fortune reports are not intended to be used in the offering of
securities. Accordingly, clients must agree to each of the
points listed below and to indemnify Fortune for any breach of
these representations and covenants.
1. Company is not presently engaged in a private or
public offering of securities, including S-8 of
regulation S, or including any continuing
distribution, whether or not exempt, that will not be
included prior to the issuance of a Fortune research
report on Company An evergreen prospectus for
employee stock option and other plans will not
preclude issuance of Fortune research reports
(excluding present employee benefit plan registered
and in affect). (Initial)_____
2. Company will immediately notify Fortune if it intends
to make any private or public offerings of
securities, including S-8 or Regulation S.
(Initial)_____
3. Company will immediately notify Fortune concurrently
at the time of filing for sale, removal of legend or
if pledging, within thirty days, of any insider (as
defined as officers, directors, and 7% or greater
shareholders) selling of Company stock. (Initial)____
4. Company will not use Fortune reports in connection
with any offering of securities without the prior
written consent of Fortune (Initial)_____
5 Fortune will immediately notify Company concurrently
at the time of filing for sale, removal of legend or
if pledging or voting, within thirty days, of any
insider (as defined as officers, directors, and 5% or
greater shareholders) selling of Company stock.
(Initial)____
d. In that Fortune relies on information provided by the Company
for the substantial part of its presentation and reports,
Company must represent that the said information is neither
false nor misleading, and agrees to hold harmless and
indemnify Fortune for any breach of these representations and
covenants. (Initial)____
e. In that Fortune shareholders, employees, officers, and/or
members of their families may hold a position in and engage in
transactions with respect to Company securities, and in light
of the fact that Fortune imposes restrictions on such
transactions to guard against the trading on the basis of
material nonpublic information Company shall contemporaneously
notify Fortune if any information or date being supplied to
Fortune has not been generally released or promulgated.
(Initial)____
12. Representations and Indemnifications
a. Company shall be deemed to make a continuing representations
of the accuracy of any and all materials facts, materials,
information, and data which is supplied to Fortune and the
Company acknowledges its awareness that Fortune will rely on
such continuing representation in disseminating such
information and otherwise performing its investor relations
functions.
b. Fortune, in the absence of notice in writing from Company,
will rely on the continuing accuracy of materials,
information, and data supplied by Company.
c. Company hereby agrees to hold harmless and indemnify Fortune
against any claims, demands, suits, loss, damages, etc.,
arising out of Fortune reliance upon the instant accuracy and
continuing accuracy of facts, materials, information, and
date, unless Fortune has been negligent in performing its
duties and obligations thereunder.
d. Company hereby authorize Fortune to issue, in Fortune's sole
discretion, corrective, amendatory, supplemental, or
explanatory press releases, shareholder communications, and
reports, or data supplied to analysts, broker-dealers, market
makers, or other members of the financial community, such as
may be necessary to make a previous communication issued by
Fortune not false or misleading.
e. Company shall cooperate fully and timely with Fortune to
enable Fortune to perform its duties and obligations under
this agreement.
f. The execution and performance of this Consulting Agreement by
Company has been duly authorized by the Board of Directors of
Company in accordance with applicable law, and, to the extent
required, by the requisite number of the shareholder of the
Company
g. The performance by Company of this agreement will not violate
any applicable court decree or order, law or regulation, nor
will it violate any provision of the organizational documents
and/or bylaws of Company or any contractual obligation by
which Company may be bound.
h. Company shall promptly deliver to Fortune complete due
diligence package to include latest 10K, latest 10Q, last 6
months of press releases and all other relevant materials,
including but not limited to corporate reports, brochures,
etc.
I. Company shall promptly deliver to Fortune a list of names and
addresses of shareholders of Company which it is aware. This
list shall be upgraded at Fortune's request.
j. Company shall promptly deliver to Fortune a list of brokers
and market makers of Company's securities, which have been
following Company.
k. Because Fortune. will rely on such information to be supplied
it by Company, all such information shall be true, accurate,
complete and not misleading, in all respects.
I. Company shall act diligently and promptly in reviewing
material submitted to it by Fortune to enhance timely
distribution of the materials and shall inform Fortune of any
inaccuracies contained therein within a reasonable time prior
to the projected or known publication date.
13. Compensation
a. All payments due Fortune for all investor services, shall be
paid to A R Fortune, Inc. by Company as follows:
1. Upon executing this agreement, the sum of Five
Thousand Dollars ($5,000.00) representing a retainer
fee to be later applied to other Company obligations
to Fortune.
2. A monthly consulting fee of Five Thousand Dollars
($5,000.00) for the time period covered in the
agreement. Fortune and the Company agree to accept
other agreeable forms of value in lieu of cash.
b. All moneys payable thereunder shall be in U.S. funds and drawn
on U.S. banks. The parties acknowledge that in negotiating
this fee they recognize that the services will probably not be
performed in equal monthly segments, but may be substantial
during the early portion of the term and less hereafter as
relationships and communication lines are established. Thus,
part of the earlier services shall be deferred and therefore
any lessening of services shall not constitute breach or
termination hereof and the level fee shall continue.
c. See ADDENDUM A for further details to compensation.
d. For all special services, not within the scope of this
agreement, Company shall pay to Fortune such fee(s) as, and
when, the parties shall determine in advance of performance of
said special services, provided Company has agreed to said
services in advance.
14. Billing and Payment
Monthly fees and payments shall be due and payable without billing on
the first of each month and fully paid no later then by the 5th of the
month. Billing and payments for special services shall be as agreed on
a case by case basis.
Company acknowledges and agrees that deposits, initial payments, down
payments, partial payments, payments for special services, monthly fees
or monthly payments shall be by the first preceding month that work is
scheduled to be performed, unless expressly provided otherwise in
writing, and that if such funds are not received by said date Company
shall pay Fortune an additional operations charge equal to 2% for each
day said funds are not received.
15. As An Independent Contractor
Fortune shall provide said services as an independent contractor, and
not as an employee of Company or of any company affiliated with
Company. Fortune has no authority to bind Company or any affiliate of
Company to any legal action, contract, agreement, or purchase, and such
action cannot be constructed to be in good faith or with acceptance of
Company thereby becoming the sole responsibility of Fortune. Fortune is
not entitled to any medical coverage, life insurance, savings plans,
health insurance, or any and all other benefits afforded by Company
employees. Fortune shall be solely responsible for any Federal, State,
and Local taxes, and should Company for any reason be required to pay
taxes at a later date, Fortune shall reassure such payment is made by
Fortune, and not by Company. Fortune shall be responsible for all
workers compensation, payments and herein holds Company harmless for
any and all such payments related hereto.
16. Not To Engage In Conflicting Activities
During the term of this agreement Fortune shall not engage in any
activities that directly conflicts with the interests of Company.
Company hereby acknowledges notification by Fortune and understands
that Fortune does, and shall, represent and service other and multiple
clients in the same manner as it does Company, and that Company is not
an exclusive client of Fortune.
17. Trade Secrets And Inventions
Fortune shall treat as proprietary and all information belonging to
Company, it' affiliates, or any third parties, disclosed to Fortune in
the course of the performance of Fortune's services.
18. Inside Information - Securities Violations
In the course of the performance of this agreement it is expected that
specific sensitive information concerning the operations of Company's
business, and/or affiliate companies shall come to the attention and
knowledge of Fortune. In such event Fortune shall not use such
information for its own benefit and shall not divulge such information
to third parties.
19. Disclosure
Fortune will disclose any outside interest or activities, including
ownership or participation that may conflict with the best interest of
the Company. It is mutually understood that prompt disclosure is
required under this paragraph if the activity or interest is related to
any activity that Fortune may be involved with on the behalf of the
Company.
20. Warranty Against Contemplation of Agreement Related Corrupt Practices
Fortune represents and warrants that all payments and other valuable
paid or to be paid under this agreement constitutes compensation for
services rendered; that this agreement and all payments and valuable
considerations and the use of those payments and the valuable
considerations do not influence, sway or bribe any government or
municipal party, either domestic or foreign in any way.
21. Amendments
This agreement may be modified or amended, provided such modifications
and amendments are mutually agreed upon by and between the parties
hereto and that said modifications or amendments are made in writing
and signed by both parties.
22. Severability
If any provision of this agreement shall be held to be contrary to law,
invalid or unenforceable for any reason, the remaining provision shall
remain to be valid and enforceable. If a court finds that any provision
of this agreement is contrary to law, invalid or unenforceable, and
that by limiting such provision it would become valid and enforceable,
then such provision shall be deemed to be written, construed, and
enforced as so limited.
23. Termination of Agreement
This Consulting Agreement may not be terminated by either party prior
to the expiration of the term provided in paragraph 8 above except as
follows:
a. Upon the bankruptcy or the liquidation of the other party,
whether voluntary or involuntary.
b. Upon the other party having or applying for a receiver
appointed for either party.
c. Unless there has been a material breach of the terms of this
agreement. A material breach is considered substantial
non-performance.
d. 30 day written notice by either party.
24. Attorney Fees
In the event that either party is in default of the terms and
conditions of this Consulting Agreement and legal action is initiated
or suit be entered as a result of such default, the prevailing party
shall be entitled to recover all costs incurred as a result of such
default including all costs, reasonable attorney fees, expenses and
court costs through trial, appeal and to final disposition.
25. Return of Records
Upon termination of this agreement Fortune shall, upon request of the
Company, deliver such records, notes, data of propitiatory nature and
that are in the control of Fortune that are the property of the
Company.
26. Waiver of Breach
Waiver by either party of any provision of this agreement by the other
party shall not operate or be construed as a waiver of any subsequent
breach by the other party.
27. Disclaimer By
Fortune shall prepare certain promotional materials, and; Fortune makes
no representation to Company or others that; (a) its efforts or
services will result in any enhancement to Company (b) the price of
Company's publicly traded securities will increase (C) any person will
purchase Company's securities, or (d) any investor will lend money to
and/or invest in or with Company.
28. Limitation of A R Fortune, Inc. Liability
In the event Fortune fails to perform its work or services thereunder,
its entire liability to Company shall be the lesser of and not exceed;
(a) the amount of cash compensation Fortune has received from Company
under paragraph 13 above or (b) the amount of cash compensation Fortune
has received from Company under Addendum A, or (C) the actual damage to
Company as a result of such non-performance, but in no event greater
then the amount of cash compensation received from Company. In no event
shall Fortune be liable to Company for any indirect, special or
consequential damages, nor for any claim against Company by any person
or entities arising from or in any way related to this agreement or the
Company's performance or lack of it. The provisions of this paragraph
shall not in any way limit the company's right to damages resulting
from intentional or reckless breach of any covenant of this agreement.
29. Ownership of Materials
All right, title and interest in and to materials to be produced by
Fortune in connection with this Consulting Agreement and other services
said to be rendered under said agreement shall be and remain the sole
exclusive property of Fortune.
30. Miscellaneous
a. Effective date of representations shall be the date Fortune
receives the information.
b. Currency: In all instances, references to the dollars shall be
deemed to be United States Dollars.
c. Stock: In all instances, references to stock shall be deemed
to be unrestricted and free trading unless otherwise
identified
31. Notices
All notices thereunder shall be in writing and addressed to the party
at the address herein set forth, or at such other address which notice
pursuant to this section may be given, and shall be given by either
personal delivery, certified mail, express mail, or other national
overnight courier services. Notices shall be deemed given upon the
earlier of actual receipt or three (3) business days after being mailed
or delivered to such courier service. Any notices to be given
thereunder shall be effective if executed by and sent by the attorneys
for the parties giving such notice, and with connections therewith the
parties and their respective counsel agree that in giving such notice
such counsel may communicate directly in writing with such parties to
the extent necessary to give such notice. Any notice received or
permitted by this agreement to be given shall be given to the
respective parties at the following addresses:
A R Fortune, Inc.
0000 Xxxxx Xxxxx Xxxx.
Xxxx Xxxxxxxxxx, XX.00000
CyberAmerica Corporation
000 Xxxx 000 Xxxxx
Xxxx Xxxx Xxxx, XX 00000
Fax-801-575-8092
32. Time Is Of The Essence
Time is hereby expressly made of the essence of this Consulting
Agreement with respect to the performances by the parties of their
respective obligations hereunder.
33. Inurement
This Consulting Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective heirs, executors,
administrators, personal representatives, successors, and any addenda's
attached hereto.
34. Entire Agreement
This Consulting Agreement contains the entire agreement of the parties
and may be modified or amended only by agreement in writing, signed by
the party against whom enforcement of any waiver, change, amendment,
modification, extension or discharge is sought. It is declared by both
parties that there is no oral or other agreements or understandings
between them affecting this Consulting Agreement, or relating to the
business of Fortune. This Agreement supersedes all previous agreements
between Fortune and Company.
35. Applicable Law
This Agreement is executed pursuant to and shall be interpreted and
governed for all purposes by the laws of the States of California. If
any provision of this Consulting Agreement is declared void, such
provision shall be deemed severed from this agreement, which shall
otherwise remain in full force and effect.
36. Arbitration
Any controversy or claim arising out of, or relating to this agreement,
or the breach thereof, shall be settled by arbitration in accordance
with the rules then promulgated by the said Courts and the Court shall
appoint an arbitrator, and judgment upon award rendered may be entered
into the Courts of Riverside County, California or any other court
having jurisdiction thereof, which award and or judgment shall include
reasonable attorney fees.
37. Acceptance By
This Consulting Agreement is not valid or binding upon Fortune unless
and until executed by its president or other duly authorized executive
officer of Fortune at its home office in Nassau, Bahamas.
38. Non-Waiver
The failure of either party, at any time, to request any such
performance by the other party shall not be construed as a waiver of
such fight to require such performance and shall in no way affect such
party's subsequently to require full performance hereunder.
39. Execution In Counterpart
This agreement may be executed in counterpart, not withstanding the
date or dates this agreement is executed and delivered by any of the
parties, and shall be deemed to be an original and all of which will
constitute one and the same agreement, effective as of the reference
date first written above.
IN WITNESS WHEREOF the parties hereto have set their hands in the execution of
this agreement this __ of ______ 1997.
For:A R Fortune, Inc. For: CyberAmerica Corporation
/s/Xxxxxxx Xxxxxx
------------------------ ------------------------
By:D Breton By: Xxxxxxx Xxxxxx
its Agent its President
WITNESSED BY:
---------------------------
ADDENDUM "A"
to
CONSULTING AGREEMENT
of
CyberAmerica Corporation & A R Fortune, Inc.
Effective Date 1 of November 1997
1. The Company agrees to fund the start up costs of Fortune campaign for
the Company. The Company will issue 650,000 (which number refers to
shares prior to the Company's intended October 31, 1997 1-for-10
reverse stock split) shares of unrestricted common stock to Fortune.
The 650,000 shares shall be registered in the name of Fortune and
delivered to Xxxxxx Xxxxxxx, who shall act as escrow agent for purposes
of this Agreement. The 650,000 shall be released to Fortune as follows:
a) 200,000 shares shall be released to Fortune as soon as Fortune
delivers to the Company a promotional strategy itemizes the
services which Fortune intends to perform on behalf of the
Company.
b) 200,000 additional shares shall be released to Fortune upon
Fortune's delivery to the Company of an invoice showing
Fortune's expenditure of $20,000 in services or hard costs in
connection with the services provided under this Agreement.
c) The remainder of the shares shall be released to Fortune upon
Fortune's delivery to the Company of an invoice showing
Fortune's expenditure of an additional $20,000 in services or
hard costs in connection with the services provided under this
Agreement.
2. Page 13, Paragraph 13, a, 2. Consulting $5,000 Month Payable in:
a) Cash when available (company receives credit line and/or money from
placement(s)) b) When unavailable $2,500 cash and $2,5000 Company Free
Trading Stock, equal to $2,500 at the time payment due.
3. Page 13, Paragraph 13, c
Free Trading Company shares equivalent to $12,000 per month non
dilutable, fully issued and or registered shares for payment of
services to be made available on or before the 1ST of each month and in
no event delivered to Fortune before the 5TH of the month.
4. Appendix B-1 Anticipated Allotment of Costs
The Company agrees to fund the costs of Fortune campaign for the
Company. Initial costs are outlined of approximately $13,650 less
$5,000 for management consulting equaling an amount of $8,650,000.
Company agrees to fund, prepay, these costs each month either with
cash, cash and free trading stock on or before the 1ST of each month.
Fortune agrees to maintain records of these costs and on a quarterly
basis present them to the Company for review and adjustment. Adjustment
shall be defined as the actual costs either greater or lesser of the
monthly amount expended by Fortune which amount the Company pays to
Fortune accordingly.
IN WITNESS WHEREOF the parties hereto have set their hands in the execution of
this agreement this __ of ______ 1997.
For:A R Fortune, Inc. For:CyberAmerica Corporation
/s/Xxxxxxx Xxxxxx
------------------------ --------------------------
By:D Breton By: Xxxxxxx Xxxxxx
its Agent its President
WITNESSED BY:
---------------------------
