PUBLIC COMPANY MANAGEMENT CORPORATION CONSULTING AGREEMENT
PUBLIC
COMPANY MANAGEMENT CORPORATION
This
Consulting Agreement (the “Agreement”), to be effective July 7, 2006 (the
“Effective Date”), by and between PUBLIC COMPANY MANAGEMENT CORPORATION (the
“Company”), a Nevada corporation, whose address for this Agreement is 0000 Xx
Xxxxxx Xxxx, Xxx Xxxxx, XX 00000 and C. XXXXXX XXXXXXXX, CFA (the “Consultant”),
whose mailing address for this Agreement is 00000 XxxXxxxxx Xxxx. Xxxxx 000,
Xxxxxx, XX 00000
A. The
Consultant has experience in several areas of business in which the Company
is
involved.
B. The
Company wishes to retain the Consultant to provide and promote Company strategic
development activities and to perform those activities referenced in paragraph
2.1. In addition, the Company and the Consultant agree that the Consultant
will
serve as Senior Vice-President and a member of the Company’s advisory board
during the Term (defined below) of this Agreement and that the Consultant will
not receive additional consideration for serving on the Company’s board of
advisors.
THEREFORE,
in
consideration of the recitals, the following representations and covenants
and
the payment of one dollar made by each party to the other, the receipt and
sufficiency of which is acknowledged by each party, the parties agree on the
following terms:
1.0 ENGAGEMENT
AND DURATION
1.1 The
Company hereby engages the services of the Consultant as referenced in the
Recitals, and the Consultant hereby accepts such engagement and agrees to
perform the services to the best of his ability and in accordance with terms
and
conditions of this Agreement.
1.2 The
Company shall retain the Consultant on a part-time basis for a term of one
calendar year commencing on the Effective Date and expiring on July
6th
, 2007
(the “Term”). Mutually agreeable extensions by both parties will be accepted per
agreement of both parties and compensation milestones set forth in subsection
3.2.1 will extend into any extension or ongoing future consulting agreement
if
they have yet to be fulfilled.
2.0 DUTIES
2.1 The
Consultant shall, pursuant to this Agreement, perform all duties referenced
in
the Recitals, which includes, but is not limited to the following:
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(a) Marketing
and Advertising-Help guide the Company in its print, radio, internet, and public
relations programs.
(b) Investment
Relations-Presenting the Company’s business model via road shows and
presentations separately or in conjunction with the Company’s COO and Secretary,
and the CLO and President.
(c) Strategic
Development-Oversee the build out of the Company’s national and international
business platform in financial management.
2.2 The
Consultant shall use his best efforts to promote the interests of the Company
and, to the extent necessary to discharge the responsibilities assigned to
the
Consultant, perform faithfully and efficiently such
responsibilities.
2.3 Consultant
agrees to devote time as available toward his duties and the Company
acknowledges that Consultant will have time-conflicting obligations as they
relate to his present position at United American Mortgage Corporation.
Consultant will use his best efforts to balance his obligations to the Company
pursuant to this Agreement and his obligations to United American Mortgage
Corporation.
2.4 The
Consultant shall report directly and only to Xx. Xxxxxxx Xxxxx.
2.5 The
Consultant shall primarily perform his duties in Irvine, CA or while traveling,
yet he will also make a best effort to visit the Company’s office for strategic
management discussions at 0000 Xx Xxxxxx Xxxx, Xxx Xxxxx, XX 00000 approximately
one day per month, or at such other location as shall be approved by both
parties and attend once a week, or more as is available, management meetings
of
the Company by conference call generally at 8:30 am M-F and sometimes on
weekends.
2.6 The
Consultant will, subject to the terms of this Agreement, comply promptly and
faithfully with the Company’s reasonable instructions, directions, requests,
rules and regulations as may be expected of a part-time Consultant. The Company
shall not be deemed to have waived the right to require the Consultant to
perform any duties hereunder by assigning the Consultant to any other duties
or
services or by assigning another individual to perform the duties of the
Consultant.
2.7 In
the
event of a change of control of the Company, the Consultant shall continue
to
serve the Company in the same capacity and have the same authority,
responsibilities and status as he had as of the date immediately prior to the
change of control. Following a change of control, the Consultant’s services
shall be performed at such location as may be mutually agreed upon between
the
Company and the Consultant. For the purposes of this Agreement, a “change of
control” shall be deemed to have occurred when:
(a) a
person
other than Xxxxxxx Xxxxx becomes president; or
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(b) a
majority of the directors elected at any annual or special general meeting
of
shareholders of the Company are not individuals nominated by the Company’s
then-incumbent board of directors.
3.0 REMUNERATION
AND BENEFITS
3.1 Cash
Salary, Stock Compensation and Signing Bonus.
The
Consultant shall receive $500 per month for his services during the Term of
this
Agreement for his services (collectively, “Cash Salary”), payable by invoice at
the end of the month. During the Term of this Agreement, the Consultant will
also receive an aggregate of 180,000 S-8 Shares (as defined below) of common
stock of the Company (“Stock Compensation”) which shall accrue monthly in equal
amounts of 15,000 shares per month and are payable quarterly.
3.2 Compensation
Milestones and Bonuses
3.2.1 If
during
the Term of this Agreement the milestones listed below are met, the Consultant
shall receive the amount of shares of restricted and/or registered common stock
of the Company as a bonus (the “Bonus”) as listed after each
milestone:
▪2
publicly trading companies: 50,000 shares which will be restricted shares within
the meaning of Rule 144 of the Securities Act of 1933, as amended (“Restricted
Shares”);
▪4
publicly trading companies: 50,000 shares of which 75% will be Restricted Shares
and 25% will be registered on Form S-8 and bear a legend regarding the
Consultants status as an affiliate within the meaning of Rule 144 (“S-8
Shares”);
▪6
publicly trading companies: 50,000 shares of which 75% will be Restricted Shares
and 25% will be S-8 Shares;
▪3,
5 or
7 publicly trading companies at a time when this Agreement terminates pursuant
to subsection 5.1(c), subsection 5.1(e) or subsection 5.2 hereof: 25,000 shares
of which 75% will be Restricted Shares and 25% will be S-8 Shares;
▪8
publicly traded companies: 50,000 shares of which 50% will be Restricted Shares
and 50% will be S-8 Shares;
▪9
publicly trading companies at a time when this Agreement terminates pursuant
to
subsection 5.1(c), subsection 5.1(e) or subsection 5.2 hereof: 25,000 shares
of
which 50% will be Restricted Shares and 50% will be S-8 Shares;
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▪10
publicly trading companies: 50,000 shares of which 50% will be Restricted Shares
and 50% will be S-8 Shares;
▪Any
new
funding/financing received by the Company: 30,000 shares of which 50% will
be
Restricted Shares and 50% will be S-8 Shares;
▪Airplane
travel for an initial meeting in person with a funding/financing source that
provides capital to the Company: 10,000 shares of which 50% will be Restricted
Shares and 50% will be S-8 Shares;
▪The
Company’s common stock trades on the American Stock Exchange (the “Amex”), the
National Association of Securities Dealers Automated Quotation System (the
“NASDAQ”) or the New York Stock Exchange (the “NYSE”): 25,000 restricted
shares;
▪Consultant
performs presentations and/or conference exhibits directed by the Company at
industry, trade or other conferences: 20,000 restricted shares per presentation
or conference exhibit plus reimbursement of expenses;
▪The
Company’s net income is $1,000,000 or more during the fiscal year ending
September 30, 2006, during any interim period beginning after the Effective
Date
and ending prior to September 30, 2006 or during any interim period beginning
on
October 1, 2006 and ending on or before the expiration of this Agreement: 85,000
shares, of which 50% will be Restricted Shares and 50% will be S-8
Shares.
For
purposes of this subsection 3.2.1, the term “publicly traded companies” means
any existing or new client of the Company whose common stock is not cleared
for
quotation on the over-the-counter Bulletin Board, the NASDAQ, the Amex or the
NYSE as of the Effective Date, but such common stock becomes cleared for
quotation on any one of such quotation systems or exchanges during the Term
of
this Agreement.
3.2 Reimbursement
of Expenses
3.2.1 The
Company shall reimburse the Consultant for all reasonable expenses incurred
by
the Consultant in the performance of his duties pursuant to this Agreement
upon
the Consultant providing the Company with receipts for such expenses. Such
reimbursable expenses shall not include customary day-to-day office expenses,
including but not limited to copies, faxes, and office supplies.
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3.3 Indemnification
3.3.1 The
Company shall to the fullest extent permitted by law and as set forth in the
Articles of Incorporation, and any future amendments, and the Bylaws of the
Company, indemnify, defend and hold harmless Consultant from and against any
and
all claims, demands, proceedings, liabilities, damages, losses and expenses
(including attorney's fees, court costs and disbursements) arising out of the
fact that he is or was serving as Consultant of the Company, or the performance
of his duties hereunder except in the case of Consultant’s gross negligence,
willful misconduct, criminal conduct.
3.4 Insurance
3.4.1 In
the
event that the Company obtains director or officer insurance covering any person
during the Term of this Agreement, the Company will also take reasonable
measures to obtain such insurance covering Consultant.
4.0 RESTRICTIVE
COVENANTS
4.1 Non-Competition
4.1.1 During
the Term of this Agreement and for three months following termination of this
Agreement as provided in section 5.0 hereof, the Consultant shall not directly
or indirectly:
(a) own,
operate, manage, control, invest, participate in any manner or have any interest
in;
(b) act
as an
officer, director, agent, Consultant, advisor or consultant of; or
(c) assist
in
any way or in any capacity, any person, firm, association, partnership,
corporation or other entity which is,
a
business that is the same or substantially similar to and/or competes with
the
business then engaged in by the Company (the “Competitive Entity”) anywhere in
the United States (the “Territory”).
4.1.2 The
restriction set out in subsection 4.1.1(a) above shall not apply to the
collective, direct or indirect, ownership of Consultant and his associates
(as
such term is defined in Regulation 14(A) promulgated under the Securities
Exchange Act of 1934, as in effect on the date first written above) of less
than
an aggregate of ten (10%) of the securities of any Competitive Entity, but
only
if such investment is of a totally passive nature and does not involve
Consultant devoting time to the management or operations of such Competitive
Entity and Consultant is not otherwise involved in the business of such
Competitive Entity.
The
Consultant acknowledges that the restrictions contained in this subsection
4.1
are reasonable; however, in the event that any court should determine that
any
of the restrictive covenants contained in subsection 4.1.1 or 4.1.2 of this
Agreement, or any part thereof, are unenforceable because of the duration of
such provision or the area covered thereby, such court shall have the power
to
reduce the duration or area of such provision and, in its reduced form, such
provision shall then be enforceable and shall be enforced.
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4.1.4 Nothing
in this section 4.0 shall restrict or preclude Consultant from engaging in
any
manner in the business of United American Mortgage Corporation as conducted
by
United American Mortgage Corporation as of the Effective Date.
4.2 Delivery
of Records
4.2.1 Upon
the
termination of the Consultant’s Consulting with the Company, the Consultant will
deliver to the Company all books, records, lists, brochures and other property
belonging to the Company or developed in connection with the business of the
Company.
4.3 Confidentiality
4.3.1
The
term
“Confidential Information” means any and all information concerning the business
of the Company which the Consultant may receive or develop as a result of his
Consulting. All documents, procedures, policies, programs, reports, plans,
proposals, technical information, know-how, systems and other information unique
to the Company, its customers or principals, received or developed by the
Consultant are the property of the Company and/or such parties. The Consultant
shall not make any unauthorized disclosure or use of and shall use his best
efforts to prevent publication or disclosure or use of Confidential
Information.
4.3.2 The
Consultant acknowledges that any unauthorized disclosure or use of Confidential
Information by the Consultant may result in material damages to the Company
and
consents to the issuance of an injunction or other equitable remedy to prohibit,
prevent or enjoin unauthorized disclosure or use of Confidential Information
by
the Consultant.
4.3.3
Except
as
authorized by the Company, the Consultant will not:
(a) duplicate,
transfer or disclose nor allow any other person to duplicate, transfer or
disclose any of the Company’s Confidential Information;
(b) use
the
Company’s Confidential Information without the prior written consent of the
Company; or
(c) incorporate,
in whole or in part, within any domestic or foreign patent application any
proprietary or Confidential Information disclosed by the Company.
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4.3.4 The
Consultant will safeguard all Confidential Information at all times so that
it
is not exposed to or used by unauthorized persons, and will exercise at least
the same degree of care to protect all Confidential Information whether or
not
developed by the Consultant.
4.3.5 The
restrictive obligations set forth above shall not apply to the disclosure or
use
of information which:
(a) is
or
later becomes publicly known under circumstances involving no breach of this
Agreement by the Consultant;
(b) is
already known to the Consultant at the time of receipt of the Confidential
Information from the Company;
(c) is
lawfully made available to the Consultant by a third party having the right
to
disclose it to Consultant without violation of any obligation to the Company;
or
(d) is
required to be disclosed by the Consultant pursuant to legal process (e.g.,
a
subpoena), provided that Consultant notifies the Company immediately upon
receiving or becoming aware of the legal process in question.
4.3.6 If
the
Consultant contends that any such information disclosed to him by the Company
is
in the public domain or was in the possession of the Consultant prior to such
disclosure and not under an obligation of confidence, the Consultant will,
within ten days of receipt by the Consultant of such disclosure give written
notice of such contention to the Company, which written notice shall include
a
complete identification of the information in question and the derivation
thereof, including particulars of any contract in which the Consultant or any
other person has made use of such concept or information. If the Consultant
has
not within ten days of receipt by the Consultant of such disclosure given such
written notice to the Company, then it shall be conclusively presumed that
all
information communicated by the Company to the Consultant concerning the
development originated with the Company and constitutes secret and confidential
information and know-how.
4.3.7 The
Consultant hereby certifies that he has not brought and will not bring with
the
Consultant to the Company or use while performing his Consultant duties for
the
Company any materials or documents of a former employer of the Consultant which
are not generally available to the public except the know-how to which the
right
to use has been duly licensed to the Company by such former employer. The
Consultant understands that while employed by the Company, the employer is
not
to breach any obligation of confidence or duty and the Consultant agrees that
he
will fulfill all such obligations during his Consulting with the
Company.
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4.3.8 No
patent
right or licenses are guaranteed by this Agreement and patent rights or licenses
now or developed during the Term of this Agreement are the property of the
Company. The disclosure of Confidential Information under this Agreement shall
not result in any obligation for either party to grant any rights in its patent
rights or confidential information, and no other obligations of any kind are
assumed by or implied against either party, except for those stated in this
Agreement.
4.3.9 The
provision of section 4.3 shall survive the termination of this
Agreement.
5.0 TERMINATION
5.1 The
Company may terminate the Consultant’s services under this Agreement at any time
upon the occurrence of any of the following events:
(a) the
Consultant acting unlawfully, dishonestly, negligently, incompetently or in
bad
faith;
(b) the
conviction of the Consultant of a felony;
(c) the
Consultant becoming permanently disabled or disabled for a period exceeding
90
consecutive days or 90 days calculated on a cumulative basis during the Term
of
this Agreement;
(d) the
breach or default of any term of this Agreement by the Consultant if such breach
or default has not been remedied to the reasonable satisfaction of the Company
within 14 days after written notice of the breach or default has been delivered
by the Company to the Consultant; or
(e) at
the
will of the Company, upon 30 days written notice to the Consultant by the
Company upon a decision by the Company’s President, which decision shall be in
the President’s sole discretion.
5.2 The
Consultant may terminate his obligations under this Agreement:
(a) at
any
time after the expiring of 120 days of the date on which there is a change
of
control, as described in subsection 2.7 of this Agreement or the Company has
a
successor as described in subsection 14.1 of this Agreement;
(b) upon
the
default or breach of any term of this Agreement by the Company if such breach
or
default has not been remedied or is not being remedied to the reasonable
satisfaction of the Consultant, within 14 days after written notice of the
breach or default has been delivered by the Consultant to the Company;
or
(c) at
the
will of the Consultant, upon 30 days written notice to the Company by the
Consultant.
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5.3 In
the
event of the termination of the Consultant's Consulting under this Agreement,
Consultant will be entitled only to the Cash
Salary, Stock Compensation and Bonus
earned
by Consultant hereunder as of the date of such termination. The Consultant
shall
not be entitled to a severance of any kind upon termination of this Agreement
for any reason.
5.4 The
rights of the Company and the Consultant under this section 5.0 are in addition
to and not in derogation of any other remedies which may be available to the
Company or the Consultant at law or in equity.
6.0 PERSONAL
NATURE
6.1 This
Agreement is personal in nature and is entered into based upon the singular
skill, qualifications and experience of the Consultant.
7.0 RIGHT
TO USE CONSULTANT’S NAME AND LIKENESS
7.1 During
the term, the Consultant hereby grants to the Company the right to use the
Consultant’s name, likeness and/or biography in connection with the services
performed by the Consultant under this Agreement and in connection with the
advertising or exploitation of any project with respect to which the Consultant
performs services for the Company.
8.0 WAIVER
8.1 No
consent or waiver, express or implied, by any party to this Agreement of any
breach or default by the other party in the performance of its obligations
under
this Agreement or of any of the terms, covenants or conditions of this Agreement
shall be deemed or construed to be a consent or waiver of any subsequent or
continuing breach or default in such party’s performance or in the terms,
covenants and conditions of this Agreement. The failure of any party to this
Agreement to assert any claim in a timely fashion for any of its rights or
remedies under this Agreement shall not be construed as a waiver of any such
claim and shall not serve to modify, alter or restrict any such party's right
to
assert such claim at any time thereafter.
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9.0 NOTICES
9.1 Any
notice relating to this Agreement or required or permitted to be given in
accordance with this Agreement shall be in writing and shall be personally
delivered or mailed by registered mail, postage prepaid to the address of the
parties set out on the first page of this Agreement. Any notice shall be deemed
to have been received if delivered, when delivered, and if mailed, on the fifth
day (excluding Saturdays, Sundays and holidays) after the mailing thereof.
If
normal mail service is interrupted by strike, slowdown, or other cause, a notice
sent by registered mail will not be deemed to be received until actually
received and the party sending the notice shall utilize any other services
which
have not been so interrupted or shall deliver such notice in order to ensure
prompt receipt thereof.
9.2 Each
party to this Agreement may change its address for the purpose of this section
9.0 by giving written notice of such change in the manner provided for in
subsection 9.1 hereof.
10.0 APPLICABLE
LAW
10.1 This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Nevada and the federal laws of the United States applicable therein,
which shall be deemed to be the proper law hereof. The parties hereto hereby
submit to the jurisdiction of the courts of Xxxxx County, Las Vegas,
Nevada.
11.0 SEVERABILITY
11.1 If
any
provision of this Agreement for any reason be declared invalid or unenforceable,
such declaration shall not effect the validity or enforceability of any
remaining portion of this Agreement, which remaining portion shall remain in
full force and effect as if this Agreement had been executed with the invalid
or
unenforceable portion thereof eliminated and is hereby declared the intention
of
the parties that they would have executed the remaining portions of this
Agreement without including therein any such part, parts or portion which may,
for any reason, be hereafter declared invalid or unenforceable.
12.0 ENTIRE
AGREEMENT
12.1 This
Agreement constitutes the entire agreement between the parties hereto and there
are no representations or warranties, express or implied, statutory or otherwise
other than set forth in this Agreement and there are no agreements collateral
hereto other than as are expressly set forth or referred to herein. This
Agreement cannot be amended or supplement except by a written agreement executed
by both parties hereto, provided that if the Company becomes listed on the
Amex,
NASDAQ or NYSE, the Company and the Consultant shall reasonably renegotiate
the
terms of this Agreement to the extent such terms are inconsistent with the
rules
and relations of such exchange or quotation system.
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13.0 ARBITRATION
13.1 In
the
event of any dispute arising in the determination of the compensation to be
paid
pursuant to subsection 5.0 hereof or of the Consultant's salary as set out
in
this Agreement, the matter in dispute shall be referred to the auditors of
the
Company for determination. If the auditors cannot agree on a determination
of
the matter in dispute within ten days following the referral to them, the matter
in dispute shall be referred to a single arbitrator under the Arbitration Act
then in effect federally, and the arbitration shall take place in Xxxxx County,
Las Vegas, Nevada.
14.0 LIMITATIONS
ON ASSIGNABILITY
14.1 Consultant’s
duties and responsibilities under this Agreement are not assignable or delegable
in whole or in part. The Company may assign this Agreement to a successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise)
to
all or substantially all of the business and/or assets of the Company; provided,
however, that the Company will require any successor to assume expressly and
agree to perform this Agreement in the same manner and to the same extent that
the Company would be required to perform it if no such succession had taken
place. As used in this Agreement, "the Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise.
15.
0 BURDEN
AND BENEFIT
15.1 This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective heirs, executors, administrators, successors and permitted
assigns.
16.0 TIME
16.1 Time
is
of the essence of this Agreement.
17.0 COUNTERPART,
PHOTOCOPIES AND FAXES
17.1 This
Agreement may be executed in counterpart and such counterparts together shall
constitute one and the same instrument and notwithstanding the date of execution
shall be deemed to bear the date as set out on the first page of this Agreement.
It shall not be necessary in making proof of this Agreement or any counterpart
hereof to produce or account for any of the other counterparts. A copy of this
Agreement signed by one party and faxed to another party shall be deemed to
have
been executed and delivered by the signing party as though an original. A
photocopy of this Agreement shall be effective as an original for all
purposes.
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IN
WITNESS WHEREOF
the
undersigned have duly executed this Agreement as of the date set out on the
first page of this Agreement.
|
PUBLIC
COMPANY MANAGEMENT CORP.
|
CONSULTANT
|
|
|
/s/
Xxxxxxx Xxxxx
|
/s/
C. Xxxxxx Xxxxxxxx
|
|
|
Xxxxxxx
Xxxxx, President & CEO
|
C.
Xxxxxx Xxxxxxxx
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