EXHIBIT 4.3
INDEPENDENT CONTRACTOR FEE/CONSULTING AGREEMENT
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THIS AGREEMENT is made and entered into on February 17, 2004 by and
between NanoSignal Corporation, a Nevada corporation ("NNOS") and Xxxxx Xxxxxxx,
a resident of Las Vegas, NV ("Xxxxxxx").
RECITALS
WHEREAS, NNOS is a public company trading on the OTCBB under the symbol
"NNOS"; and
WHEREAS, Xxxxxxx is knowledgeable in the areas of business operations of NNOS
and possesses skills and experience in mergers and acquisitions and business
strategies;
WHEREAS, Xxxxxxx has provided valuable assistance and advice regarding
American Stock Exchange and other exchanges upon the shares of NNOS may become
listed;
WHEREAS, NNOS wishes to engage Xxxxxxx on a non-exclusive basis as an
independent contractor to continue utilizing his skills, business experience,
and his business knowledge to assist in completing certain strategic business
plans of NNOS to complete an asset roll-up and AMEX merger;
WHEREAS, NNOS and Xxxxxxx intend that this Agreement and the services
performed hereunder shall be made, requested and performed in such a manner that
this Agreement shall be a "written compensation agreement" as defined in Rule
405 of the Securities and Exchange Commission ("Commission") pursuant to which
NNOS may issue "freely tradeable" shares (except as may be limited by
"affiliate" status) of its common stock as payment for services rendered
pursuant to an S-8 Registration Statement to be filed with the Commission by
NNOS; and
WHEREAS, Xxxxxxx is willing to be so retained on the terms and
conditions set forth in this Agreement.
AGREEMENT
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NOW, THEREFORE, in consideration of the promises and the mutual
agreements hereinafter set forth, the parties hereto agree as follows:
1. Engagement. NNOS hereby retains and engages Xxxxxxx to perform the
following consulting services (the "Consulting Services"):
1.1 Duties of Xxxxxxx. Xxxxxxx will continue to help NNOS evaluate the
28G Real Estate development component of the AMEX merger possibilities and
assist in negotiating landowner/shareholders approvals of the project. Xxxxxxx
will also provide such services and advice to NNOS so as to assist NNOS with
matters relating to acquisition targets for NNOS and advise and administer the
structure of any such mergers or other acquisitions. Without limiting the
generality of the foregoing, Xxxxxxx will also assist NNOS in administering,
studying and evaluating acquisition proposals, review reports and studies
thereon when advisable, and assist in negotiations and discussions pertaining
thereof. Nothing contained herein constitutes a commitment on the part of
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Xxxxxxx to find an acquisition target for NNOS or, if such target is action will
be completed. Xxxxxxx will assist NNOS in creating its business development and
business strategy as well as marketing strategies.
2. Duties Expressly Excluded. This Agreement expressly excludes Xxxxxxx
from providing any and all capital formation and/or public relation services to
NNOS inclusive of but not limited to (i) direct or indirect promotion of NNOS's
securities; (ii) assistance in making of a market in NNOS's securities; and
(iii) assistance in obtaining debt and/or equity financing. Xxxxxxx shall not
have the power of authority to bind NNOS to any transaction without NNOS's prior
written consent.
3. Term. All services performed at the request of NNOS by Xxxxxxx shall
have been performed within 180 days from the date hereof, at which time this
Agreement shall terminate, unless otherwise provided herein; provided, however,
this Agreement may be extended for an additional 180 day period by written
agreement of NNOS and any of the Consultants.
4. Consideration. NNOS and Xxxxxxx agree that Xxxxxxx shall receive
from NNOS a fee consisting of the following:
A. 2,000,000 shares of NNOS's unrestricted common stock shares of the
NNOS's Common Stock, par value $0.01 per share (the "Common Stock"), covered by
a registration statement of the Company under the Securities Act of 1933, as
amended (the "Act"), on Form S-8 (the "S-8 Registration Statement") to be
prepared by NNOS at its expense and filed by NNOS with the SEC via XXXXX as soon
as practicable. NNOS covenants that the S-8 Registration Statement shall be kept
effective until such time as all of the S-8 shares have been sold pursuant
thereto. NNOS hereby further agrees to exert its best efforts to cause as
expeditiously as is practicable all of the S-8 shares to be certificated and
credited by the Depository Trust Company ("DTC") to the securities brokerage
account of Consultant specified by Consultant. These shares shall be paid in
advance, as consideration for the services already rendered or to be rendered
pursuant to this Agreement. These shares shall be issued immediately.
5. Expenses. Xxxxxxx shall bear his out-of-pocket costs and expenses
incident to perform the Consulting Services, without a right of reimbursement
from NNOS unless such expenses are pre-approved by NNOS.
6. Xxxxxxx Liability. In the absence of gross negligence or willful
misconduct on the part of Xxxxxxx or Xxxxxxx breach of any terms of this
Agreement, Xxxxxxx shall not be liable to NNOS or to any officer, director,
employee, stockholder or creditor of NNOS, for any act or omission in the course
of or in connection with the rendering or providing of services hereunder.
Except in those cases where the gross negligence or willful misconduct of
Xxxxxxx or the breach by Xxxxxxx of any terms of this Agreement is alleged and
proven, NNOS agrees to defend, indemnify, and hold harmless from and against any
and all reasonable costs, expenses and liability (including reasonable
attorney's fees paid in the defense of Xxxxxxx) which may in any way result from
services rendered by Xxxxxxx pursuant to or in any connection with this
Agreement. This indemnification expressly excludes any and all damages as a
result of any actions or statements on behalf of NNOS made by Xxxxxxx without
the prior approval or authorization of NNOS.
7. NNOS's Liability. Xxxxxxx agrees to defend, indemnify and hold NNOS
harmless from an against any and all reasonable costs, expenses and liability
(including reasonable attorney's fees paid in defense of NNOS) which may in any
way result pursuant to his gross negligence or willful misconduct or in any
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connection with any actions taken or statements made on behalf of NNOS without
the prior approval or authorization of NNOS or which are otherwise in violation
of applicable law.
8. Representations. Xxxxxxx makes the following representations:
X. Xxxxxxx has no prior or existing legally binding obligations that
are in conflict with his entering into this Agreement;
X. Xxxxxxx shall not offer or make payment of any consideration to
brokers, dealers or others for purposes of inducing the purchase, making of a
market or recommendation for the purchase of NNOS's securities;
X. Xxxxxxx is not currently the subject of an investigation or inquiry
by the Securities and Exchange Commission, the NASD, or any state securities
Commission;
X. Xxxxxxx activities and operations fully comply with now and will
comply with in the future all applicable state and federal securities laws and
regulations;
X. Xxxxxxx agrees to reasonably to insure that neither he nor his
employees, agents, or affiliates, trade in the securities of client companies
while in possession of material non-public information;
F. During the term of this Agreement and for a period of two years
thereafter, Xxxxxxx shall treat as NNOS's confidential trade secrets all data,
information, ideas, knowledge and papers pertaining to the affairs of NNOS.
Without limiting the generality of the foregoing, such trade secrets shall
include: the identity of NNOS's customers, suppliers and prospective customers
and suppliers; the identity of NNOS's creditors and other sources of financing,
NNOS's estimating and costing procedures and the costs and gross prices charged
by NNOS for its products, the prices or other consideration charged to or
required of NNOS by any of its suppliers or potential suppliers; NNOS's sales
and promotional policies; and all information relating to entertainment programs
or properties being developed or otherwise developed by NNOS. Xxxxxxx shall not
reveal said trade secrets to others except in the proper exercise of his duties
or NNOS, or use their knowledge thereof in any way that would be detrimental to
the interest of NNOS, unless compelled to disclose such information by judicial
or administrative process; provided, however, that the divulging of information
shall not be a breach of this Agreement to the extent that such information was
(i) previously known by the party to which it is divulged, (ii) already in the
public domain, all through no fault of Xxxxxxx, or (iii) required to be
disclosed by Xxxxxxx pursuant to judicial or governmental order. Xxxxxxx shall
also treat all information pertaining to the affairs of NNOS's suppliers and
customers and prospective suppliers and customers as confidential trade secrets
of such customers and suppliers and prospective customers and suppliers.
9. NNOS's Representations. NNOS makes the following representations:
A. NNOS is not currently the subject of an investigation or inquiry by
the Securities and Exchange Commission, the NASD, or any state securities
Commission; and
B. NNOS is in good standing in its state of incorporation.
10. Entire Agreement. This Agreement embodies the entire agreement and
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understanding between NNOS and Xxxxxxx and supersedes any and all negotiations,
prior discussions and preliminary and prior agreements and understandings
related to the primary subject matter hereof. This Agreement shall not be
modified except by written instrument duly executed by each of the parties
hereto.
11. Waiver. No waiver of any provisions of this Agreement shall be
deemed, or shall constitute a waiver of any other provisions, nor shall any
waiver constitute a continuing waiver. No waiver shall be binding unless
executed in writing by the party making the waiver.
12. Assignment and Binding Effect. This Agreement and the rights
hereunder may not be assigned by NNOS (except by operation of law or merger) but
shall be freely assignable by Xxxxxxx; and it shall be binding upon and inure to
the benefits of the parties and their respective successors, assigns and legal
representatives.
13. Governing Law and Attorney's Fees. In the event there is a dispute
regarding this Agreement, it shall be governed by Nevada law. Should litigation
arise in regard to this Agreement, the prevailing party shall be entitled to
costs and the attorney's fees actually incurred. The term "prevailing party" as
used in this paragraph means the party that is entitled to recover costs of
suit.
14. Severability. Every provision of this Agreement is intended to be
severable. If any term or provision hereof is deemed unlawful or invalid for any
reason whatsoever, such unlawfulness or invalidity shall not affect the validity
of this Agreement.
15. Headings. The headings of this Agreement are inserted solely for
the convenience of reference and are not part of, and are not intended to
govern, limit or aid in the construction of any term or provision hereof.
16. Further Acts. Each party agrees to perform any further acts and
execute and deliver any further documents that may be reasonably necessary to
carry out the provisions and intent of this Agreement.
17. Acknowledgment Concerning Counsel. Each party acknowledges that it
had the opportunity to employ separate and independent counsel of its own
choosing in connection with this Agreement.
18. Independent Contractor Status. There is no relationship,
partnership, agency, employment, franchise or joint venture between the parties.
The parties have no authority to bind the other or incur any obligations on
their behalf.
19. Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto duly execute this Agreement as
of the date first written above.
NanoSignal Corporation Xxxxx Xxxxxxx
By:/s/ Xxxxx Xxxxx /s/ Xxxxx Xxxxxxx
President
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