Exhibit 10.7 Agreement with Summit Financial Partners, LLC
INDEPENDENT CONSULTING AGREEMENT
This Independent Consulting Agreement ("Agreement"), effective as of the
3rd day of December, 2003 ("Effective Date") is entered into by and between
INNOVATIVE DESIGNS, INC., a Delaware corporation (herein referred to as the
"Company") and SUMMIT FINANCIAL PARTNERS, LLC., an Indiana Limited Liability
Company (herein referred to as the "Consultant").
RECITALS
WHEREAS, the Company is a publicly-held corporation with its common stock traded
on the OTCBB; and
WHEREAS, Company desires to engage the services of Consultant to represent the
company in investors' communications and public relations with existing
shareholders, brokers, dealers and other investment professionals as to the
Company's current and proposed activities, and to consult with management
concerning such Company activities.
NOW THEREFORE, in consideration of the promises and the mutual covenants and
agreements hereinafter set forth, the parties hereto covenant and agree as
follows:
1. Term of Consultancy. Company hereby agrees to retain the Consultant to
act in a consulting capacity to the Company, and the Consultant hereby agrees to
provide services to the Company commencing immediately and ending on June 3,
2005.
2. Duties of Consultant. The Consultant agrees that it will generally
provide the following specified consulting services through its officers and
employees during the term specified in Section 1, above.
(a) Consult with and assist the Company in developing and implementing
appropriate plans and means for presenting the Company and its business plans,
strategy and personnel to the financial community, establishing an image for the
Company in the financial community, and creating the foundation for subsequent
financial public relations efforts;
(b) Introduce the Company to the financial community, including but not limited
to, retail brokers, buy side and sell side institutional managers, portfolio
managers, analysts, and financial public relations professionals;
(c) With the cooperation of the Company, maintain an awareness during the term
of this Agreement of the Company's plans, strategy and personnel, as they may
evolve during such period, and consult and assist the Company in communicating
appropriate information regarding such plans, strategy and personnel to the
financial community;
(d) Assist and consult the Company with respect to its (i) relations with
stockholders, (ii) relations with brokers, dealers, analysts and other
investment professionals, and (iii) financial public relations generally;
(e) Perform the functions generally assigned to stockholder relations and
public relations departments in major corporations, including responding to all
telephone and written inquiries (which may be referred to the Consultant by the
Company); preparing press releases for the Company with the Company's
involvement and approval of press releases, reports and other communications
with or to shareholders, the investment community and the general public;
consulting with respect to the timing, form, distribution, and other matters
related to such releases, reports and communications; and, at the Company's
request and subject to the Company's securing its own rights to the use of its
names, marks, and logos, consulting with respect to corporate symbols, logos,
names, the presentation of such symbols, logos and names, and other matters
relating to corporate image;
(f) Upon and with the Company's direction and written approval, disseminate
information regarding the Company to shareholders, brokers, dealers, other
investment community professionals and the general investing public;
(g) Upon and with the Company's direction, conduct meetings, in person or by
telephone, with brokers, dealers, analysts and other investment professionals to
communicate with them regarding the Company's plans, goals and activities, and
assist the Company in preparing for press conferences and other forums involving
the media, investment professionals, and the general investment public;
(h) At the Company's request, review business plans, strategies, mission
statements budgets, proposed transactions, and other plans for the purpose of
advising the Company of the public relations implications thereof; and
(i) Otherwise perform as the Company's consultant for public relations and
relations with financial professionals.
3. Allocation of Time and Energies. The Consultant hereby promises to
perform and discharge faithfully the responsibilities which may be assigned to
the Consultant from time to time by the officers and duly authorized
representatives of the Company in connection with the conduct of its financial
and public relations and communications activities, so long as such activities
are in compliance with applicable securities laws and regulations. Consultant
and staff shall diligently and thoroughly provide the consulting services
required hereunder. Although no specific hours-per-day requirement will be
required, Consultant and the Company agree that Consultant will perform the
duties set forth herein above in a diligent and professional manner. The parties
acknowledge and agree that a disproportionately large amount of the effort to be
expended and the costs to be incurred by the Consultant and the benefits to be
received by the Company are expected to occur within or shortly after the first
two months of the effectiveness of this Agreement. It is explicitly understood
that neither the price of the Company's common stock, nor the trading volume of
the Company's common stock hereunder measure Consultant's performance of its
duties. It is also understood that the Company is entering into this Agreement
with Consultant, a corporation and not any individual member or employee
thereof, and, as such, Consultant will not be deemed to have breached this
Agreement if any member, officer or director of the Consultant leaves the firm
or dies or becomes physically unable to perform any meaningful activities during
the term of the Agreement, provided the Consultant otherwise performs its
obligations under this Agreement.
4. Remuneration.
4.1 (a) For undertaking this engagement, for previous services rendered,
and for other good and valuable consideration, the Company agrees to issue, or
have issued, to the Consultant a "Commencement Bonus" of Eight Hundred Thousand
(800,000) restricted shares of the Company's Common Stock ("Common Stock" and
such shares, collectively, the "Shares"). The Shares are to be issued to
Consultant's principals in the following manner: The Xxxxxxxxx Family Trust
(560,000 restricted shares), Xxxx X. Xxxxx (120,000 restricted shares) and
Xxxxxx X. Xxxxxxxx (120,000 restricted shares). The aforementioned principals
shall be included in the aforementioned definition of Consultant. This
Commencement Bonus shall be fully paid and non-assessable and stock certificates
representing the Commencement Bonus shall be issued and delivered to Consultant
within 10 days of execution of this Agreement.
(b) Consultant agrees that the Company may, in its sole discretion, cause
one or more Shareholders of the Company to deliver any of or all of the Shares
to be issued and delivered to Consultant hereunder.
4.2 The Company understands and agrees that Consultant has foregone
significant opportunities to accept this engagement and that the Company derives
substantial benefit from the execution of this Agreement and the ability to
announce its relationship with Consultant. The Commencement Bonus, therefore,
constitutes payment for Consultant's agreement to consult to the Company and is
a nonrefundable, non-apportionable, and non-ratable retainer and is not a
prepayment for future services. If the Company decides to terminate this
Agreement prior to December 3, 2004, for any reason whatsoever, it is agreed and
understood that Consultant will not be requested or demanded by the Company to
return any of the shares of Common Stock paid to it hereunder. Consultant agrees
and understands that if the during the term of this Agreement, Consultant
performs substantial services for any direct competitor of the Company, then the
Shares issued to Consultant hereunder will be forfeited.
4.3 Notwithstanding anything else in this Agreement to the contrary,
Company and Consultant acknowledge and agree that for purposes of the Company's
internal accounting practices, the Company may desire to allocate all or a
portion of the Commencement Bonus or Working Shares to any number of the
services provided by the Consultant to the Company under this Agreement
consistent with the United States generally accepted accounting practices.
Accordingly, Consultant agrees to cooperate with the Company, and will provide
to the Company reasonable support and documentation in connection with any such
allocation process.
4.4 The Consultant shall have the right to include all of the Shares (also
referred to as the "Registrable Securities") as part of any registration of
securities filed by the Company (other than in connection with a transaction
contemplated by Rule 145(a) promulgated under the Act or pursuant to form S-8)
and must be notified in writing of such filing. Consultant shall have five (5)
business days to notify the Company in writing as to whether the Company is to
include Consultant or not include Consultant as part of the registration;
provided, however, that if any registration pursuant to this section shall be
underwritten, in whole or in part, the Company may require that the Registrable
Securities requested for inclusion pursuant to this Section be included in the
underwriting on the same terms and conditions as the securities otherwise being
sold through the underwriters. If in the good faith judgment of the underwriter
evidenced in writing of such offering only a limited number of Registrable
Securities should be included in such offering, or no such shares should be
included, the Consultant, and all other selling stockholders, shall be limited
to registering such proportion of their respective shares as shall equal the
proportion that the number of shares of selling shareholders permitted to be
registered by the underwriter in such offering bears to the total number of all
shares then held by all selling stockholders desiring to participate in such
offering.
4.5 Company warrants that the Shares issued to Consultant under this
Agreement by the Company shall be or have been validly issued, fully paid and
non-assessable and that the Company's board of directors has or shall have duly
authorized the issuance and any transfer of them to Consultant.
4.6 Consultant acknowledges that the Shares to be issued pursuant to this
Agreement have not been registered under the Securities Act of 1933, as amended
(the "Securities Act") and accordingly are "restricted securities" within the
meaning of Rule 144 of the Act. As such, the Shares may not be resold or
transferred unless the Company has received an opinion of counsel and in form
reasonably satisfactory to the Company that such resale or transfer is exempt
from the registration requirements of that Securities Act. Consultant agrees
that during the term of this Agreement, that it will not sell or transfer any of
the Shares issued to it hereunder, except to the Company, nor will it pledge or
assign such Shares as collateral or as security for the performance of any
obligation, or for any other purpose.
4.7 In connection with the acquisition of the Shares, Consultant represents
and warrants to Company, to the best of its/his knowledge, as follows:
(a) Consultant has been afforded the opportunity to ask questions of and
receive answers from duly authorized officers or other representatives of the
Company concerning an investment in the Shares, and any additional information
that the Consultant has requested.
(b) Consultant's investment in restricted securities is reasonable in relation
to the Consultant's net worth, which is in excess of ten (10) times the
Consultant's cost basis in the Shares. Consultant has had experience in
investments in restricted and publicly traded securities, and Consultant has had
experience in investments in speculative securities and other investments that
involve the risk of loss of investment. Consultant acknowledges that an
investment in the Shares is speculative and involves the risk of loss.
Consultant has the requisite knowledge to assess the relative merits and risks
of this investment without the necessity of relying upon other advisors, and
Consultant can afford the risk of loss of his entire investment in the Shares.
Consultant is an Accredited Investor, as that term is defined in Regulation D
promulgated under the Securities Act.
(c) Consultant is acquiring the Shares for the Consultant's own account for
long-term investment and not with a view toward resale or distribution thereof
except in accordance with applicable securities laws.
5. Non-Assignability of Services. Consultant's services under this contract
are offered to Company only and may not be assigned by Company to any entity
with which Company merges or which acquires the Company or substantially all of
its assets wherein the Company becomes a minority constituent of the combined
Company. In the event of such merger or acquisition, all compensation to
Consultant herein under the schedules set forth herein shall remain due and
payable, and any compensation received by the Consultant may be retained in the
entirety by Consultant, all without any reduction or pro-rating and shall be
considered and remain fully paid and non-assessable. Notwithstanding the
non-assignability of Consultant's services, Company shall assure that in the
event of any merger, acquisition, or similar change of form of entity, that its
successor entity shall agree to complete all obligations to Consultant,
including the provision and transfer of all compensation herein, and the
preservation of the value thereof consistent with the rights granted to
Consultant by Company herein. Consultant shall not assign its rights or delegate
its duties hereunder without the prior written consent of Company.
6. Expenses. Consultant agrees to pay for all its expenses (phone, travel,
mailing, faxing, labor, etc.), not including extraordinary items (luncheons or
dinners to large groups of investment professionals, investor conference calls,
print advertisements in publications, etc.) approved by the Company in writing
prior to its incurring an obligation for reimbursement. The Company agrees and
understands that Consultant will not be responsible for preparing or mailing due
diligence and/or investor packages on the Company, and that the Company will
have some means to prepare and mail out investor packages at the Company's
expense.
7. Indemnification. The Company warrants and represents that al oral
communications, written documents or materials furnished to Consultant or the
public by the Company with respect to financial affairs, operations,
profitability and strategic planning of the Company are accurate in all material
respects and Consultant may rely upon the accuracy thereof without independent
investigation. The Company will protect, indemnify and hold harmless Consultant
against any claims or litigation including any damages, liability, cost and
reasonable attorney's fees as incurred with respect thereto resulting from
Consultant's communication or dissemination of any said information, documents
or materials, excluding any such claims or litigation resulting from
Consultant's communication or dissemination of information not provided or
authorized by the Company.
8. Representations. Consultant represents that it is not required to
maintain any licenses and registrations under federal or any state regulations
necessary to perform the services set forth herein. Consultant acknowledges
that, to the best of its knowledge, the performance of the services set forth
under this Agreement will not violate any rule or provision of any regulatory
agency having jurisdiction over Consultant. Consultant acknowledges that, to the
best of its knowledge, Consultant and its officers and directors are not the
subject of any investigation, claim, decree or judgment involving any violation
of the SEC or securities laws. Consultant further acknowledges that it is not a
securities Broker Dealer or a registered investment advisor. Company
acknowledges that, to the best of its knowledge, that it has not violated any
rule or provision of any regulatory agency having jurisdiction over the Company.
Company acknowledges that, to the best of its knowledge, Company is not the
subject of any investigation, claim, decree or judgment involving any violation
of the SEC or securities laws.
9. Legal Representation. Each of Company and Consultant represents that
they have consulted with independent legal counsel and/or tax, financial and
business advisors, to the extent that they deemed necessary.
10. Status as Independent Contractor. Consultant's engagement pursuant to
this Agreement shall be as independent contractor, and not as an employee,
officer or other agent of the Company. Neither party to this Agreement shall
represent or hold itself out to be the employer or employee of the other.
Consultant further acknowledges the consideration provided hereinabove is a
gross amount of consideration and that the Company will not withhold from such
consideration any amounts as to income taxes, social security payments or any
other payroll taxes. All such income taxes and other such payment shall be made
or provided for by Consultant and the Company shall have no responsibility or
duties regarding such matters. Neither the Company nor the Consultant possesses
the authority to bind each other in any agreements without the express written
consent of the entity to be bound.
11. Attorney's Fee. If any legal action or any arbitration or other
proceeding is brought for the enforcement or interpretation of this Agreement,
or because of an alleged dispute, breach, default or misrepresentation in
connection with or related to this Agreement, the successful or prevailing party
shall be entitled to recover reasonable attorneys' fees and other costs in
connection with that action or proceeding, in addition to any other relief to
which it or they may be entitled.
12. Waiver. The waiver by either party of a breach of any provision of this
Agreement by the other party shall not operate or be construed as a waiver of
any subsequent breach by such other party.
13. Notices. All notices, requests, and other communications hereunder
shall be deemed to be duly given if sent by U.S. mail, postage prepaid,
addressed to the other party at the address as set forth herein below:
To the Company:
Innovative Designs, Inc.
Xxxxxx Xxxxxxxx
000 Xxxxx Xxxx Xxxxxx
Xxxxx 0
Xxxxxxxxxx, XX 00000
Fax - (000) 000-0000
To the Consultant:
Summit Financial Partners, LLC
Xxxxxxx X. Xxxxxxxxx
000 Xxxx 00xx Xxxxxx
Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Fax - (000) 000-0000
It is understood that either party may change the address to which notices for
it shall be addressed by providing notice of such change to the other party in
the manner set forth in this paragraph.
14. Choice of Law. This Agreement shall be governed by, construed and
enforced in accordance with the laws of the State of Indiana.
15. Arbitration. Any controversy or claim arising out of or relating to
this Agreement, or the alleged breach thereof, or relating to Consultant's
activities or remuneration under this Agreement, shall be settled by binding
arbitration in Indianapolis, IN in accordance with the applicable rules of the
American Arbitration Association, Commercial Dispute Resolution Procedures, and
judgment on the award rendered by the arbitrator(s) shall be binding on the
parties and may be entered in any court having jurisdiction.
16. Complete Agreement. This Agreement contains the entire agreement of the
parties relating to the subject matter hereof. This Agreement and its terms may
not be changed orally but only by an agreement in writing signed by the party
against whom enforcement of any waiver, change, modification, extension or
discharge is sought.
SIGNATURES APPEAR ON FOLLOWING PAGE
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
AGREED TO:
Company:
INNOVATIVE DESIGNS, INC.
By: /s/ Xxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Title: Chief Executive Officer and its Duly Authorized Agent
Consultant:
SUMMIT FINANCIAL PARTNERS, LLC
By: /s/ Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Title: President and its Duly Authorized Agent
