Exhibit 10.3
CONSULTING AGREEMENT
Agreement made as of this 23rd day of August, 2003 by and between Freestar
Technologies, Inc., a Nevada corporation, 00 Xxxxxxx Xxxxx, Xxxxx Xxxxxxx,
Xxxxxxxxx Xxxxxxxx ("Contractor") Margaux Investment Management Group S.A., 9
Rue de Commerce, X.X. Xxx 0000, XX-0000 Xxxxxx 00, Xxxxxxxxxxx ("Contractee").
WITNESSETH
WHEREAS, Contractor seeks ready access to expertise in the European Market in
areas of , corporate finance, market awareness, strategic partnership,
distribution channels, potential clients and strategic planning; and
WHEREAS, Contractee has preeminent contacts within the capital markets,
investment community, major financial institutions, distribution channels,
qualifying Contractee to provide consulting services for the above mentioned.
Now, therefore, in consideration of the premises and the mutual promises and
covenants contained herein and subject specifically thereby, the parties agree
as follows:
1) CERTAIN DEFINITIONS. When used in this Agreement, the following terms shall
have the meanings set forth below:
1.1 AFFILIATE-any person or entities controlled by a party.
1.2 CONTRACTOR-the Contractor who uses the services of Contractee.
1.3 CONTRACTOR CLIENTS-the Contractor's clients who use the services of
Contractee through the Contractor.
1.4 EXTRAORDINARY EXPENSES-expenses that are beyond those expenses that
are usual, regular, or customary in the conduct of the in-house activities
in fulfillment of the scope of the Agreement.
1.5 EQUITY-cash, securities or liquid assets, specifically excluding real
property.
1.6 PAYMENT OR PAYABLE OF KIND-distribution of the proceeds of a
transaction in the same type and form as was given as valuable
consideration for the transaction.
2) CONTACT PERSONS. The Contact Person for Contractor is Xxxx Xxxx. The Contact
Person for Contractee is Xxxx Xxxxxx
3) SERVICES TO BE RENDERED BY CONTRACTEE. Services to be rendered by Contractee
are as follows:
3.1 PERFORMANCE. The parties agree that performance of Contractee shall
not be based on the price of the stock and not to affect the price of the
stock.. Contractor understands that Contractee has no control with regard
to the price of these securities.
3.2 ADVICE AND COUNSEL. Contractee will provide advice and counsel
regarding Contractor's strategic business and marketing plans, strategy
and negotiations with potential, clients/distributors, users\endusers,
candidates, joint ventures, corporate partners, investors and capitalists.
3.3 INTRODUCTION TO THE WHOLESALE/RETAIL COMMUNITY. Contractee has a close
association with wholesale/retailers and investment professionals and will
enable contact between Contractor and\or Contractor Clients to facilitate
business transactions among them. Contractee shall use their contacts in
the capital markets to assist Contractor in establishing relationships
therein. Contractee understands that this is in keeping with Contractor's
business objective to establish a global network.
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3.4 MARKET INTELLIGENCE. Contractee knows the capital markets through its
network and will monitor and react to market developments on a timely
basis and provide advice, counsel and proprietary intelligence to
Contractor in a timely fashion. Contractor understands that this
information is available from other sources but acknowledges that
Contractee can provide it in a more timely fashion and with substantial
value-added interpretation of such information. The foregoing
notwithstanding, no information will be provided to Contractor with
respect to the activities of any other Contractee customer's accounts
without such customer's prior consent.
3.5 CONTRACTOR AND/OR CONTRACT CLIENT TRANSACTION DUE DILIGENCE.
Contractee will undertake due diligence on all proposed transactions
affecting the Contractor, including investigation and advice on the
financial, valuation and price implications thereof.
3.6 ADDITIONAL DUTIES. Contractor and Contractee shall mutually agree upon
any additional duties, which Contractee may provide for compensation paid
or payable by Contractor under this Agreement. Such additional
agreement(s) may, although there is no requirement to do so, be attached
hereto and made a part hereof as Exhibits beginning with Exhibit "A".
3.7 BEST EFFORTS. Contractee shall devote such time and best efforts as
may be reasonably necessary to perform its services. Contractee is not
responsible for the performance of any services, which may be rendered
hereunder without Contractor providing the necessary information prior
thereto. Contractee cannot guarantee results on behalf of Contractor but
shall pursue all avenues available through its network of financial
contacts. At such time as an interest is expressed in Contractor's needs,
Contractee shall notify Contractor and advise it as to the source of such
interest and any terms and conditions of such interest. The acceptance and
consummation of any transaction is subject to acceptance of the terms and
conditions by Contractor. It is understood that a portion of the
compensation to be paid hereunder is being paid by Contractor to have
Contractee remain available to assist it with transactions on an as-needed
basis.
4) COMPENSATION TO CONTRACTEE.
4.1 INITIAL FEE. Contractor does agree to pay Contractee a fee of five
million (5,000,000) shares per year of Freestar Technology Corporation
common stock subject to Rule 144, the contract is for 24 months and fees
are payable in advance upon execution hereof for Contractee's retainer
necessary for Contractee to provide the services herein. Contractor and
Contractee, agree the aforementioned shares will be issued to Contractee..
4.2 ADDITIONAL FEES. Contractor and Contractee shall mutually agree upon
any additional fees, which Contractor may pay in the future for services
rendered by Contractee under this Agreement. Such additional agreement(s)
may, although there is no requirement to do so, be attached hereto and
made a part hereof as Exhibits beginning with Exhibit "A". A period of 45
days has been set aside for the completion of a commission structure to be
completed.
4.3 EXTRAORDINARY EXPENSES. Extraordinary expenses of Contractee shall be
submitted to Contractor for approval prior to expenditure and shall be
paid by Contractor within ten (10) business days of receipt of
Contractee's request for payment.
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5) INDEMNIFICATION. Each party shall hold the other party harmless from
and against, and shall indemnify the other party for, any liability, loss and
costs, and expenses or damages however caused by reason of any injury (whether
to body, property, personal or business character, or reputation) sustained by
any person or to any person or property by reason of any act of neglect, default
or omission of it or any of its agents, employees, or other representatives
arising out of or in relation to this Agreement. Nothing herein is intended to
nor shall it relieve either party from liability for its own act, omission or
negligence. All remedies provided by law or in equity shall be cumulative and
not in the alternative.
6) CONTRACTOR REPRESENTATIONS. Contractor hereby represents, covenants and
warrants to Contractee as follows:
6.1 AUTHORIZATION. Contractor and its signatories herein have full power
and authority to enter into this Agreement and to carry out the
transactions contemplated hereby.
6.2 NO VIOLATION. Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby will violate any
provision of the charter or by-laws of Contractor or violate, or be in
conflict with, or constitute a default under, any agreement or commitment
to which Contractor is a party, or violate any statute or law or any
judgment, decree, order, regulation or rule of any court or government
authority.
6.3 AGREEMENT IN FULL FORCE AND EFFECT. All contracts, agreements, plans,
leases, policies and licenses referenced herein to which Contractor is a
party are valid and in full force and effect.
6.4 LITIGATION. Except as set forth below, there is no action, suit,
inquiry, proceeding or investigation by or before any court of
governmental or other regulatory or administrative agency or commission
pending or to the best knowledge of Contractor threatened against or
involving Contractor, or which questions or challenges the validity of
this Agreement and its subject matter; and Contractor does not know or
have any reason to know if any valid basis for any such action, proceeding
or investigation exists.
6.5 CONSENTS. No consent of any person, other than the signatories hereto,
is necessary to the consummation of the transactions contemplated hereby
including, without limitation, consents from parties to loans, contracts,
leases or other agreements and consents from government agencies, whether
federal, state or local.
6.6 CONTRACTEE'S RELIANCE. Contractee has and will rely upon the
documents, instruments and written information furnished to Contractee by
the Contractor's officers or designated employees and:
6.6.1 CONTRACTOR MATERIAL. All representations and statements
provided about Contractor are true, complete and accurate.
Contractor agrees to indemnify, hold harmless, and defend
Contractee, its officers, directors, agents, consultants and
employees at Contractor's expense for any proceeding or suit which
may arise out
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of any inaccuracy or incompleteness of any such material or written
information supplied to Contractee; and
6.6.2 CONTRACTOR CLIENT AND OTHER MATERIAL. All representations and
statements provided, other than about Contractor, are to the best of
its knowledge true, complete and accurate.
7) CONFIDENTIALITY. Contractee and Contractor each agree to provide reasonable
security measures to keep information confidential whose release may be
detrimental to the business. Contractee and Contractor shall each require their
employees, agents, affiliates, subcontractors, other licenses, and others who
will properly have access to the information through Contractee and Contractor
respectively, to first enter into appropriate non-disclosure agreements
requiring the confidentiality contemplated by this Agreement in perpetuity.
8) MISCELLANEOUS PROVISIONS.
8.1 AMENDMENT AND MODIFICATION. Subject to applicable law, this Agreement
may be amended, modified and supplemented by written agreement of
Contractee and Contractor or by their duly authorized respective officers.
8.2 WAIVER OF COMPLIANCE. Any failure of Contractee on the one hand, or
Contractor on the other, to comply with any obligation, agreement or
condition herein may be expressly waived in writing, but such waiver of
failure to insist upon strict compliance with such obligation, covenant,
agreement or condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure.
8.3 OTHER BUSINESS OPPORTUNITIES. Except as expressly provided in this
Agreement, each party hereto shall have the right independently to engage
in and receive full benefits from business activities.
8.4 COMPLIANCE WITH REGULATORY AGENCIES. Each party represents to the
other party that all actions, direct or indirect, taken by it and its
respective agents, employees and affiliates in connection with this
Agreement and any financing or underwriting hereunder shall conform to all
applicable Federal and State securities laws.
8.5 NOTICES. Any notices to be given hereunder by any party to the other
may be effected by personal delivery in writing or by mail, registered or
certified, postage prepaid with return receipt requested. Mailed notices
shall be addressed to the parties at the addresses appearing in the
introductory paragraph of this Agreement, but any party may change their
address by written notice in accordance with this subsection. Notices
delivered personally shall be deemed communicated as of actual receipt;
mailed notices shall be deemed communicated as of three (3) days after
mailing.
8.6 ASSIGNMENT. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this Agreement
nor any of the rights, interests or obligations hereunder shall be
assigned by Contractor without the prior written consent of Contractee,
except by operation of law.
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8.7 DELEGATION. Neither party shall delegate the performance of its duties
under this Agreement without prior written consent of the other party.
8.8 PUBLICITY. Neither Contractee nor Contractor shall make or issue, or
cause to be made or issued, any announcement or written statement
concerning this Agreement or the transactions contemplated hereby for
dissemination to the general public without the prior consent of the other
party. This provision shall not apply, however, to any announcement or
written statement required to be made by law or the regulations of any
Federal or State governmental agency, except that the party required to
make such announcement shall, whenever practicable, consult with the other
party concerning the timing and consent of such announcement before such
announcement is made.
8.9 GOVERNING LAW. This Agreement and the legal relations among the
parties hereto shall be governed and construed in accordance with the laws
of the State of Nevada, without regard to its conflict of law doctrine.
Contractor and Contractee agree that if action is instituted to enforce or
interpret any provision of this Agreement then jurisdiction and venue
shall be Los Angeles County, California.
8.10 COUNTERPARTS. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but of which
together shall constitute one and the same instrument.
8.11 HEADINGS. The headings of the Sections of this Agreement are inserted
for convenience only and shall not constitute a part hereto or affect in
any way the meaning or interpretation of this Agreement.
8.12 ENTIRE AGREEMENT. This Agreement, including any Exhibits hereto, and
any other documents and certificates delivered pursuant to the terms
hereof, set forth the entire agreement and understanding of the parties
hereto in respect to the subject matter contained herein, and supersedes
all prior agreements, promises, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any officer,
employee or representative of any party hereto.
8.13 THIRD PARTIES. Except as specifically set forth or referenced to
herein, nothing herein expressed or implied is intended or shall be
construed to confer upon or give to any person or corporation other than
the parties hereto and their successors or assigns, any rights or remedies
under or by reason of this Agreement.
8.14 ATTORNEY'S FEES AND COSTS. If any action is necessary to enforce and
collect upon the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorney's fees and costs, in addition to any other
relief to which that party may be entitled. This provision shall be
construed as applicable to the entire agreement.
8.15 SURVIVABILITY. If any part of this Agreement is found, or deemed by a
court of competent jurisdiction, to be invalid or unenforceable, that part
shall be severable from the remainder of this Agreement.
8.16 FURTHER ASSURANCE. Each of the parties agrees that it shall from time
to time take such actions and execute such additional instruments as may
be reasonably necessary or convenient to implement and carry out the
intent and purpose of this Agreement.
8.17 RIGHT TO DATA AFTER TERMINATION. After termination of this Agreement
each party shall be entitled to copies of all information acquired
hereunder as of the date of termination and not previously furnished to
it.
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8.18 RELATIONSHIPS OF THE PARTIES. Nothing contained in this Agreement
shall be deemed to constitute either party the partner of the other, nor,
except as otherwise herein expressly provided, to constitute either party
the agent or legal representative of the other, nor to create any
fiduciary relationship between them. It is not the intention of the
parties to create, nor shall this Agreement be construed to create, any
commercial nor other partnership. Neither party shall have any authority
to act for or to assume any obligation or responsibility on behalf of the
other party, except as otherwise expressly provided herein. The rights,
duties, obligations and liabilities of the parties shall be severable and
not joint or collective. Each party hereto shall be responsible only for
its obligations as herein set out and shall be liable only for its share
of the costs and expenses as provided herein. Each party shall indemnify,
defend and hold harmless the other party, its directors, officers, and
employees, from and against any and all losses, claims, damages and
liabilities arising out of any act or any assumption of liability by the
indemnifying party, or any of its directors, officers or employees, done
or undertaken, or apparently done or undertaken, on behalf of the other
party, except pursuant to the authority expressly granted herein or
otherwise agreed in writing between the parties. Each party shall be
responsible for the acts of its agents, consultants and affiliates.
9) TERMS OF AGREEMENT AND TERMINATION. This Agreement shall be effective upon
execution, and shall continue for 24 months (two years) unless terminated
sooner, by either party, upon giving to the other party thirty (30) days written
notice, after which time this Agreement is terminated.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed, all as of the day and year first above written.
Contractor: Freestar Technologies, Inc.
Signature: /s/ Xxxx Xxxx Date: August 23, 2003
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Xxxx Xxxx, President
Contractee: Margaux Investment Management Group S.A.
Signature: /s/ Xxxx-Xxxxxx Xxxxxx Date: August 23, 2003
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Xxxx-Xxxxxx Xxxxxx
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