Ex. 10.7.4
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 Xxxx Xxxxxxx, a natural
person, (the "Consultant"), whose address is Xxxxxxxxxxxxxxxxxxx 00 00000
Xxxxxxxx Xxxxxxx.
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 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.
C. 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.
D. The Company wishes to engage the services of the Consultant as an
independent contractor to advise and consult with it with respect to (i) the
Company's business development activities, including major geographic and
service expansion plans, and (ii) the Company's merger and acquisition
strategies, including the evaluation of targets and the structuring of
transactions; all on the terms and subject to the conditions set forth in this
Agreement.
E. 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) Evaluate the Company's business development activities,
including major geographic and service expansion plans.
(b) Evaluate the Company's merger and acquisition
strategies, including the evaluation of targets and the structuring of
transactions.
(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 Augsburg,
Germany, 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
his 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 below to U.S. 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 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 U.S. 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 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 his
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 recognizes and understands
that the Company has a deficit in working capital, negative cash flows from
operations, a stockholders' deficit and recurring net losses. The Company's
independent auditors have expressed the opinion that these issues raise
substantial doubt about the Company's ability to continue as a going concern.
Accordingly, the Consultant agrees to accept compensation for
his services under this Agreement in the form of shares of the Company's
common stock and warrants to purchase 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 his Services
under this Agreement (i) 1,000,000 shares of the Company's common
stock (the "Shares"), (ii) 300,000 Class A Warrants each to purchase
one share of common stock at a price of $.001 per share at any time
prior to the expiration of twelve months after the Initial Exercise
Date as defined in the Warrant Agreement and (iii) 800,000 Class B
Warrants each to purchase one share of common stock at a price of
$.20 per share at any time prior to the expiration of twelve months
after the Initial Exercise Date as defined in the Warrant Agreement
(the "Warrants" and collectively with the Shares and common stock
issuable upon exercise of the Warrants, the "Securities"), which
shall be fully earned and non-refundable in consideration of his
execution of this Agreement. The Company shall issue the Shares and
Warrants registered in the name of the Consultant.
(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
Securities issued by the Company as the Consultant's Fee shall be
covered by the Registration Statement and issued pursuant to and in
accordance with the Plan. The certificates representing the Securities
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 Securities, free
and clear of any legend, restriction or stop order, and deliver the
Securities, so registered, to Consultant. The Company warrants that
the Securities 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 Securities.
(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 Securities 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
Securities.
2.2. Offset; Withholding; Taxes. 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
him in connection with his performance of the Services under this Agreement.
2.3. The Consultant's Expenses. Except for expenses incurred in
attending meetings of the Board 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 him in connection with his
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) Corporate Power and Authority. The execution, delivery
and performance by the Company of this Agreement, including the
issuance of the Securities 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
certificate 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 and Warrants. The Shares are duly and
validly authorized, and when issued in accordance with the terms of
this Agreement will be fully paid and nonassessable. The Warrants are
legal, valid and binding obligations of the Company, enforceable
against it in accordance with their respective terms
3.2. Representations and Warranties of the Consultant. The Consultant
represents and warrants to and covenants with the Company that:
(a) Power and Authority. The execution, delivery and
performance by the Consultant of this Agreement, does not and will
not (i) violate any provision of any law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award presently
in effect having applicability to the Consultant; (ii) result in a
breach of or constitute a default under any agreement or other
instrument to which the Consultant is a party.
(b) Legally Enforceable Agreement. This Agreement is the,
legal, valid and binding obligation of the Consultant, enforceable
against her 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.
(c) Accredited Investor. The Consultant is an accredited
investor as defined in SEC Rule 501(a).
(d) Knowledge and Experience. The Consultant has such
knowledge and experience in financial and business matters that he is
capable of evaluating the merits and risks of his election to receive
the Consultant's Fee in the form of the Securities, rather than in
cash.
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 his 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. Proprietary Information. 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 Non-Disclosure. 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
employment, 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 Employees. 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 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:
Xxxx Xxxxxxx
Xxxxxxxxxxxxxxxxxxx 00 00000
Xxxxxxxx Xxxxxxx
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
judgmentrendered 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.
Heading 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:
PARAMCO FINANCIAL GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------
Xxxxxxx X. Xxxxx, President
The Consultant:
/s/ Xxxx Xxxxxxx
-------------------------
Xxxx Xxxxxxx
