Ex. 10.7.3
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") is made and entered into as
of February 12, 2003, by
and between Paramco Financial Group, Inc., a Nevada corporation,
(the "Company"), whose address is 0000 Xxxxx
Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000 and Trufello
Associates, Ltd. (the "Consultant"), whose address is
Xxxxxxx Waterfront Plaza, P.O. Box 556, Main Street, Memorial
Square, Nevis, West Indies.
Recitals
A. The Company wishes to engage the services of the Consultant to
advise and consult with the
Company on certain business and financial matters as set forth in
this Agreement.
B. The Consultant has extensive experience in investment banking,
business and financial consulting,
and entrepreneurial executive management. As a result, the
Consultant has the expertise to advise and assist the
Company in developing a successful business plan, and in evaluating
businesses that may be likely candidates to
strategically partner with the Company.
C. The Company wishes to engage the services of the Consultant as
an independent contractor to
advise and consult with it with respect to (i) developing a
successful business plan, and (ii) exploring strategic
alliances, partnering opportunities and other cooperative ventures,
all on the terms and subject to the conditions set
forth in this Agreement.
D. The Consultant is willing to accept such engagement, on the
terms set forth in this Agreement.
Now therefore, in consideration of the foregoing recitals and the
mutual covenants and obligations
contained in this Agreement, including the payment of fees and
other good and valuable consideration contained
herein, the parties agree as follows:
1. Engagement.
1.1 Effective Date. This Agreement shall commence ("Effective
Date") on the effective date of the
Registration Statement (as defined in paragraph 2.1(b)).
1.2. Engagement. The Company hereby engages the Consultant to
perform the Services, as defined
and set forth in paragraph 1.5, for the Term as defined and set
forth in paragraph 1.3, and the Consultant hereby
accepts this engagement, on the terms and subject to the conditions
set forth in this Agreement
1.3. Term. The term of the Consultant's engagement under this
Agreement shall be for the period
beginning on the Effective Date and ending when terminated as
provided in paragraph 4 below (the "Term").
1.4. Relationship. The relationship between the Company and the
Consultant created by this
Agreement is that of independent contractors, and the Consultant is
not and shall not be deemed to be an employee
of the Company for any purpose.
1.5. Services. The following services (the "Services") shall be
rendered, from time to time by the
Consultant during the Term, as the Company may request, solely for
the Company's benefit and not for the benefit
of any third party:
(a) Assist management with the development of a successful business
plan for the Company.
(b) Explore strategic alliances, partnering opportunities and other
cooperative ventures for
the Company within and without the Company's present industry
focus.
(c) Advise and consult with the Company's board of directors (the
"Board") and executive
officers with respect to any of the above described matters.
1.6. No Capital Raising Services. The Services do not include
consulting with or advising or assisting
the Company, in any manner (i) in connection with the offer or sale
of securities in any capital-raising transaction, or
(ii) to directly or indirectly promote or maintain a market for any
of the Company's securities.
1.7. No Investment Advisory or Brokerage Services; No Legal
Services. The Services do not include
requiring the Consultant to engage in any activities for which an
investment advisor's registration or license is
required under the U.S. Investment Advisors Act of 1940, or under
any other applicable federal or state law; or for
which a "broker's" or "dealer's" registration or license is
required under the U.S. Securities Exchange Act of 1934,
or under any other applicable federal or state law. Consultant's
work on this engagement shall not constitute the
rendering of legal advice, or the providing of legal services, to
the Company. Accordingly, Consultant shall not
express any legal opinions with respect to any matters affecting
the Company. Consultant's work on this
engagement shall not consist of effecting transactions in the
Company's securities and Consultant shall not provide
any securities broker-dealer services to the Company.
1.8. Location. The Company and the Consultant intend that the
Services shall be rendered primarily
from the Consultant's offices in Nevis, West Indies and may be
rendered by telephone and e-mail communication.
The Consultant understands and acknowledges it may be necessary to
travel to perform the Services, and that the
Consultant shall be required to do so at its own expense (the
Consultant's Fee having been agreed to in consideration
thereof). The Consultant shall not be required to perform any
services in the United States, or in any manner that
would subject the Consultant's Fee defined in paragraph 2.1 below
to United States federal or state income taxation.
The Consultant shall, if requested by the Company and at the
Company's expense, attend meetings of the
Company's board of directors (the "Board") at reasonable times,
provided that the Company shall have provided the
Consultant with an opinion of tax counsel satisfactory to the
Consultant that doing so will not subject the
Consultant's Fee to United States federal income taxation. The
Consultant shall be reasonably available by
telephone to consult with the Board at regular and special meetings
thereof.
1.9. Time; Non-exclusive. The Consultant shall devote as much time
to the performance of the
Services as is reasonably necessary, but the Consultant shall not
be required to devote any fixed number of hours or
days to the performance of the Services. The Company recognizes
that the Consultant has and will continue to have
other clients and business, and agrees that this engagement is non-
exclusive.
1.10. Support Staff and Facilities. The Consultant shall furnish
its own support staff, office, telephone,
and other facilities and equipment necessary to the performance of
the Services, and the Company shall not be
required to provide the Consultant with any such staff, facilities
or equipment.
1.11. Confidentiality. The Consultant shall not disclose any non-
public, confidential or proprietary
information, including but not limited to confidential information
concerning the Company's products, methods,
engineering designs and standards, analytical techniques, technical
information, customer information, or employee
information, unless required to do so by applicable law.
2. Consultant's Fees and Expenses.
2.1. The Consultant's Fee. The Consultant agrees to accept
compensation for its services under this
Agreement in the form of shares of the Company's common stock,
rather than in cash, on the following terms:
(a) The Company shall issue and deliver to the Consultant, on or
immediately after the
Effective Date, as a fee for its Services under this Agreement (the
"Consultant's Fee") 2,000,000 shares of
the Company's Common Stock (the "Shares"), which shall be fully
earned and non-refundable in
consideration of its execution of this Agreement. The Company shall
issue the Shares registered in the
name of Xxxxx Xxxxxx, the Consultant's sole director, executive
officer and shareholder.
(b) In connection with the formation of a strategic plan for 2003,
the Board intends to adopt a
directors and officers stock option and stock award plan (the
"Plan"). The Company also intends to file a
registration statement on Form S-8 or other appropriate form (the
"Registration Statement") with the
Securities and Exchange Commission (the "SEC") that registers the
issuance of shares of common stock,
preferred stock, options and warrants under the terms of the Plan.
The Shares issued by the Company as
the Consultant's Fee shall be covered by the Registration Statement
and pursuant to and in accordance with
the Plan. The certificates representing the Shares shall be free
and clear of any legends or restrictions.
(c) The Company shall issue instructions to its transfer agent to
issue the certificates
representing the Shares, free and clear of any legend, restriction
or stop order, and deliver the shares, so
registered, to Consultant. The Company warrants that the Shares as
well as the shares of common stock
usable upon their conversion shall be freely transferable on the
books and records of the Company.
Nothing in this Section 2.1(c) shall affect in any way the
Consultant's obligations and agreement to comply
with all applicable securities laws upon resale of the Shares as
well as the shares of common stock usable
upon their conversion.
(d) If the Company shall merge or consolidate with or into another
corporation for the
purpose of changing the corporate domicile ("Reincorporation"),
then, as a result of such Reincorporation,
the Company, or such successor, as the case may be, shall make
lawful and adequate provision whereby the
holder of the Shares shall receive the kind and amount of
securities receivable immediately prior to such
consolidation or merger without the necessity of any further action
on the part of either the Company or the
holder of the Shares.
2.2. Offset; Withholding; Taxes. The Company shall pay the
Consultant's Fee to the Consultant
without offset, deduction or withholding of any kind or for any
purpose. The Consultant shall pay any federal, state
and local taxes payable by it with respect to the Consultant's Fee.
2.3. The Consultant's Expenses. Except for expenses incurred in
attending meetings of the Board as
set forth in paragraph 1.7 above and such other expenses as the
Company shall first expressly agree in writing to pay
or reimburse to Consultant, the Consultant shall pay all expenses
incurred by it in connection with its performance
of the Services under this Agreement.
3. Representations, Warranties and Covenants:
3.1. Representations and Warranties of the Company. The Company
represents and warrants to and
covenants with the Consultant that:
(a) Incorporation, Good Standing, and Due Qualification. The
Company is a corporation
duly incorporated, validly existing and in good standing under the
laws of Nevada; has the corporate power
and authority to own its assets and to transact the business in
which it is now engaged and proposes to be
engaged in; and is duly qualified as a foreign corporation and in
good standing under the laws of each other
jurisdiction in which such qualification is required.
(b) Power and Authority. The execution, delivery and performance by
the Company of this
Agreement, including the issuance of the Shares have been duly
authorized by all necessary corporate
action and do not and will not (i) require any consent or approval
of the Company's shareholders; (ii)
contravene the Company's articles of incorporation or bylaws; (iii)
violate any provision of any law, rule,
regulation, order, writ, judgment, injunction, decree,
determination or award presently in effect having
applicability to the Company; (iv) result in a breach of or
constitute a default under any agreement or other
instrument to which the Company is a party.
(c) Legally Enforceable Agreement. This Agreement is the, legal,
valid and binding
obligation of the Company, enforceable against it in accordance
with its terms, except to the extent that
such enforcement may be limited by applicable bankruptcy,
insolvency and other similar laws affecting
creditors' rights generally.
(d) The Shares. The Shares are duly and validly authorized, and
when issued will be fully
paid and nonassessable.
3.2. Representations and Warranties of the Consultant. The
Consultant represents and warrants to and
covenants with the Company that:
(a) Incorporation, Good Standing, and Due Qualification. The
Consultant is a corporation
duly incorporated, validly existing and in good standing under the
laws of the jurisdiction of its
incorporation; has the corporate power and authority to own its
assets and to transact the business in which
it is now engaged and proposes to be engaged in; and is duly
qualified as a foreign corporation and in good
standing under the laws of each other jurisdiction in which such
qualification is required.
(b) Power and Authority. The execution, delivery and performance by
the Consultant of this
Agreement, have been duly authorized by all necessary corporate
action and do not and will not (i) require
any consent or approval of the Consultant's stockholders; (ii)
contravene the Consultant's charter or
bylaws; (iii) violate any provision of any law, rule, regulation,
order, writ, judgment, injunction, decree,
determination or award presently in effect having applicability to
the Consultant; (iv) result in a breach of
or constitute a default under any agreement or other instrument to
which the Consultant is a party.
(c) Legally Enforceable Agreement. This Agreement is the legal,
valid and binding
obligation of the Consultant, enforceable against it in accordance
with its terms, except to the extent that
such enforcement may be limited by applicable bankruptcy,
insolvency and other similar laws affecting
creditors' rights generally.
(d) The Consultant is an accredited investor as defined in SEC Rule
501(a).
(e) The Consultant has such knowledge and experience in financial
and business matters that
it is capable of evaluating the merits and risks of its election to
receive the Consultant's Fee in the form of
the Shares, rather than in cash.
(f) Xxxxx Xxxxxx, is the Consultant's sole director, officer and
shareholder.
4. Termination. This Agreement may be terminated at any time:
(a) by the Company giving the Consultant 30 days advance written
notice of its election to
do so. Upon such termination, the Company shall, immediately pay
the Consultant the balance of any
unpaid Consultant's Fee.
(b) by the Consultant giving the Company 30 days advance written
notice of its election to
do so. Upon such termination, the Company shall, immediately pay
the Consultant the balance of any
unpaid Consultant's Fee.
5. Confidential Information.
5.1. The parties hereto recognize that a major need of the Company
is to preserve its specialized
knowledge, trade secrets, and confidential information. The
strength and good will of the Company is derived from
the specialized knowledge, trade secrets, and confidential
information generated from experience with the activities
undertaken by the Company and its subsidiaries. The disclosure of
this information and knowledge to competitors
would be beneficial to them and detrimental to the Company, as
would the disclosure of information about the
marketing practices, pricing practices, costs, profit margins,
design specifications, analytical techniques, and similar
items of the Company and its subsidiaries. By reason of his being a
Consultant to the Company, Consultant has or
will have access to, and will obtain, specialized knowledge, trade
secrets and confidential information about the
Company's operations and the operations of its subsidiaries, which
operations extend through the United States.
Therefore, Consultant recognizes that the Company is relying on
these agreements in entering into this Agreement.
5.2 During and after the Term Consultant will not use, disclose to
others, or publish any inventions or
any confidential business information about the affairs of the
Company, including but not limited to confidential
information concerning the Company's products, methods, engineering
designs and standards, analytical techniques,
technical information, customer information, employee information,
and other confidential information acquired by
him in the course of his past or future services for the Company.
Consultant agrees to hold as the Company's
property all memoranda, books, papers, letters, formulas and other
data, and all copies thereof and therefrom, in any
way relating to the Company's business and affairs, whether made by
him or otherwise coming into his possession,
and on termination of his consultancy, or on demand of the Company,
at any time, to deliver the same to the
Company within twenty four hours of such termination or demand.
5.3 During the Term Consultant will not induce any employee of the
Company to leave the
Company's employ or hire any such employee (unless the Board of
Directors of the Company shall have authorized
such employment and the Company shall have consented thereto in
writing).
6. General Provisions.
6.1. Entire Agreement; Modification; Waivers. This Agreement
contains the entire agreement of the
parties, and supersedes any prior agreements with respect to its
subject matter. There are no agreements,
understandings or arrangements of the parties with respect to the
subject matter of this Agreement that are not
contained herein. This Agreement shall not be modified except by an
instrument in writing signed by the parties. No
waiver of any provision of this Agreement shall be effective unless
made in writing and signed by the party making
the waiver. The waiver of any provision of this Agreement shall not
be deemed to be a waiver of any other provision
or any future waiver of the same provision.
6.2. Notices. All notices given under this Agreement shall be in
writing, addressed to the parties as set
forth below, and shall be effective on the earliest of (i) the date
received, or (ii) on the second business day after
delivery to a major international air delivery or air courier
service (such as Federal Express or Network Couriers):
If to the Company:
Paramco Financial Group, Inc.
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, President
If to the Consultant:
Trufello Associates Limited
00 Xxxxxxxx Xxxxxx, Xxxxxx X0X 0XX
6.3. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the
laws of the State of New York; provided, however, that if any
provision of this Agreement is unenforceable under
such law but is enforceable under the laws of the State of Nevada,
then Nevada law shall govern the construction
and enforcement of that provision.
6.4. Jurisdiction and Venue. The courts of the State of New York
sitting in City of New York,
Xxxxxxxx of Manhattan (the "Manhattan Courts") shall have exclusive
jurisdiction to hear, adjudicate, decide,
determine and enter final judgment in any action, suit, proceeding,
case, controversy or dispute, whether at law or in
equity or both, and whether in contract or tort or both, arising
out of or related to this Agreement, or the construction
or enforcement hereof or thereof (any such action, suit,
proceeding, case, controversy or dispute, a "Related
Action"). The Company and the Consultant hereby irrevocably consent
and submit to the exclusive personal
jurisdiction of the Manhattan Courts to hear, adjudicate, decide,
determine and enter final judgment in any Related
Action. The Company and the Consultant hereby irrevocably waive and
agree not to assert any right or claim that it
is not personally subject to the jurisdiction of the Manhattan
Courts in any Related Action, including any claim of
forum non conveniens or that the Manhattan Courts are not the
proper venue or form to adjudicate any Related
Action. If any Related Action is brought or maintained in any court
other than the Manhattan Courts, then that court
shall, at the request of the Company or the Consultant, dismiss
that action. The parties may enter a judgment
rendered by the Manhattan Courts under this Agreement for
enforcement in the courts of Nevada and the party
against whom such judgment is taken will not contest the authority
of such courts to enforce such a judgment.
6.5. Waiver of Jury Trial. The Company and the Consultant hereby
waive trial by jury in any Related
Action.
6.6 Attorney's Fees. The prevailing party in any Related Action
shall be entitled to recover that
party's costs of suit, including reasonable attorney's fees.
6.7 Binding Effect. This Agreement shall be binding on, and shall
inure to the benefit of the parties
and their respective successors in interest.
6.8 Construction, Counterparts. This Agreement shall be construed
as a whole and in favor of the
validity and enforceability of each of its provisions, so as to
carry out the intent of the parties as expressed herein.
Headings are for the convenience of reference, and the meaning and
interpretation of the text of any provision shall
take precedence over its heading. This Agreement may be signed in
one or more counterparts, each of which shall
constitute an original, but all of which, taken together shall
constitute one agreement. A faxed copy or photocopy of
a party's signature shall be deemed an original for all purposes.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date in the opening paragraph.
The Company:
PARAMACO FINANCIAL GROUP INC.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------
Xxxxxxx X. Xxxxx, President
The Consultant:
TRUFELLO ASSOCIATES, LTD.
By: /s/ Xxxxx Xxxxxx
----------------------------
Xxxxx Xxxxxx, Nominee Advisor
