EXHIBIT 23.2
INDEPENDENT CONTRACTOR/CONSULTING AGREEMENT
THE AGREEMENT is made and entered into as of this 9th day of May,
2000 by and between AMERICAN INFLATABLES, INC., hereinafter referred to as
"Client", with its principal place of business at 000 Xxxxxxx Xxxxxx, Xxxxx
Xxxx, XX 00000, and Xxxx Xxxxxxx, Certified Public Accountant, with his place of
business at 000 Xxxxx Xxxxxxxx, Xxxxxxx Xxxxx, XX 00000 hereinafter referred to
as "Consultant".
RECITALS
A. WHEREAS, Client is a development stage company; and
B. WHEREAS, the Consultant is a Certified Public Accountant generally
knowledgeable in the areas of the business operations of the Company and
possesses experience in merger structure and management compensation issues; and
C. WHEREAS, the Company wishes to engage the Consultant on a nonexclusive
basis as an independent contractor to utilize Consultant's general merger
structure and management compensation issues experience for this type of
Company; and
D. WHEREAS, the Consultant is willing to be so retained on the terms and
conditions as set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and the mutual
agreements hereinafter set forth, the parties hereto agree as follows:
1. Engagement. The Company hereby retains and engages Consultant to perform
the following consulting services (the "Consulting Services");
1.1 Duties of Consultant. The Consultant will provide such services
and advice to the Company so as to advise the Company in structuring mergers or
other acquisitions. Without limiting the generality of the foregoing, Consultant
will also assist the Company in developing, studying and evaluating acquisition
proposals, prepare reports and studies thereon when advisable, and assist in
matters of executive compensation and discussions pertaining thereof. Nothing
contained herein constitutes a commitment on the part of the Consultant to find
an acquisition target for the Company or, if such target is found, that any
transaction will be completed. This Agreement is not a contract for listing
services, and nothing in this Agreement will require the Consultant to negotiate
on behalf of the Company with corporations that are involved with listings or
making a market in corporate securities in the OTC markets.
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2. Duties Expressly Excluded. This Agreement expressly excludes the
Consultant from providing any and all capital formation and/or public relation
services to the Company inclusive of but not limited to (i) direct or indirect
promotion of the Company's securities; (ii) assistance in making of a market in
the Company's securities; and (iii) assistance in obtaining debt and/or equity
financing. The Consultant shall not have the power of authority to bind the
Company to any transaction without the Company's prior written consent.
3. Consideration. Client and Consultant agree that Consultant receive from
the Client a fee Fifteen Thousand, (15,000) shares of Clients common stock, in
advance, as consideration for the services rendered or to be rendered pursuant
to this Agreement.
4. Term. This Agreement shall be effective for a term of three (3) months
starting from the date first written above unless sooner terminated upon mutual
written agreement of the parties hereto.
5. Expenses. Consultant shall bear his out-of-pocket costs and expenses
incident to performing the Consulting Services, with a right of reimbursement
from the Company if such expenses are pre-approved by the Company.
6. Consultant's Liability. In the absence of gross negligence or willful
misconduct on the part of the Consultant or the Consultant's breach of any terms
of this Agreement, the Consultant shall not be liable to the Company or to any
officer, director, employee, stockholder or creditor of the Company, for any act
or omission in the course of or in connection with the rendering or providing of
services hereunder. Except in those cases where the gross negligence or willful
misconduct of the Consultant or the breach by the Consultant of any terms of
this Agreement is alleged and proven, the Company agrees to defend, indemnify,
and hold the Consultant harmless from and against any and all reasonable costs,
expenses and liability (including reasonable attorney's fees paid in the defense
of the Consultant) which may in any way result from services rendered by the
Consultant pursuant to or in any connection with this Agreement. This
indemnification expressly excludes any and all damages as a result of any
actions or statements, on behalf of the Company, made by the Consultant without
the prior approval or authorization of the Company.
7. Company's Liability. The Consultant agrees to defend, indemnify, and
hold the Company harmless from an against any and all reasonable costs, expenses
and liability (including reasonable attorney's fees paid in defense of the
Company) which may in any way result pursuant to its gross negligence or willful
misconduct or in any connection with any actions taken or statements made, on
behalf of the Company, without the prior approval or authorization of the
Company or which are otherwise in violation of applicable law.
8. Representations. The Consultant makes the following representations:
a. Consultant has no prior or existing legally binding obligations
that are in conflict with its entering into this Agreement;
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b. Consultant shall not offer or make payment of any consideration to
brokers, dealers, or others for purposes of inducing the purchase, making
of a market or recommendation for the purchase of the Company's securities;
c. Consultant is not currently the subject of an investigation or
inquiry by the Securities and Exchange Commission, the NASD, or any state
securities commission;
d. Consultant's activities and operations fully comply with now and
will comply with in the future all applicable state and federal securities
laws and regulations;
e. Consultant understands that, as a result of its services, it may
come to possess material non-public information about the Company, and that
it has implemented internal control procedures designed to reasonably to
insure that it and none of its employees, agents, Consultant or affiliates,
trade in the securities of client companies while in possession of material
non-public information;
f. During the Term of this Agreement and for a period of two years
thereafter, the Consultant shall treat as the Company's confidential trade
secrets all date, information, ideas, knowledge and papers pertaining to
the affairs of the Company. Without limiting the generality of the
foregoing, such trade secrets shall include: the identity of the Company's
customers, suppliers and prospective customers and suppliers; the identity
of the Company's creditors and other sources of financing; the Company's
estimating and costing procedures and the cost and gross prices charged by
the Company for its products; the prices or other consideration charged to
or required of the Company by any of its suppliers or potential suppliers;
the Company's sales and promotional policies; and all information relating
to entertainment programs or properties being produced or otherwise
developed by the Company. The Consultant shall not reveal said trade
secretes to others except in the proper exercise of its duties for the
Company, or use their knowledge thereof in any way that would be
detrimental to the interest of the Company, unless compelled to disclose
such information by judicial or administrative process; provided, however,
that the divulging of information shall not be a breach of this Agreement
to the extent that such information was (i) previously known by the party
to which it is divulged, (ii) already in the public domain, all through no
fault of the Consultant, or (iii) required to be disclosed by Consultant
pursuant to judicial or governmental order. The Consultant shall also treat
all information pertaining to the affairs of the Company's suppliers and
customers and prospective customers and suppliers as confidential trade
secrets of such customers and suppliers and prospective customers and
suppliers, and:
g. Consultant agrees to notify the Company immediately if, at any
time, any of the representations and warranties made by the Consultant
herein are no longer true and correct or if a breach of any of the
representations and warranties made by the Consultant herein occurs,
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9. The Company makes the following representations:
a. The Company is not currently the subject of an investigation or
inquiry by the Securities and Exchange Commission, the NASD, or any state
securities commission;
b. The Company is in good standing in its state of incorporation;
c. The Company and its senior management are not aware of any
materially adverse events not previously disclosed in the Company's annual
and quarterly reports with the Securities and Exchange Commission.
10. Entire Agreement. This Agreement embodies the entire agreement and
understanding between the Company and the Consultant and supersedes any and all
negotiations, prior discussions and preliminary and prior agreements and
understandings related to the primary subject matter hereof. This Agreement
shall not be modified except by written instrument duly executed by each of the
parties hereto.
11. Waiver. No waiver of nay of the provisions of this Agreement shall be
deemed, or shall constitute a waiver of any other provisions, nor shall any
waiver constitute a continuing wavier. No waiver shall be binding unless
executed in writing by the party making the waiver.
12. Assignment and Binding Effect. This Agreement and the rights hereunder
may not be assigned by the parties (except by operation of law or merger) and
shall be binding upon and inure to the benefit of the parties and their
respective successors, assigns and legal representatives.
13. Notices. Any notice or other communication between the parties hereto
shall be sufficiently given if sent by certified or registered mail, postage
prepaid, or faxed and confirmed at the following locations:
Company:
AMERICAN INFLATABLES, INC.
000 Xxxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxxxx
Consultant:
Xxxx Xxxxxxx, Certified Public Accountant
000 Xxxxx Xxxxxxxx
Xxxxxxx Xxxxx, XX 00000
Attn: Xxxx Xxxxxxx
or at such other location as the addressee may have specified in a notice duly
given to the sender as provided herein. Such notice or other communication shall
be deemed to be given on the date of receipt.
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14. Severability. Every provision of this Agreement is intended to be
severable. If any term or provision hereof is deemed unlawful or invalid for any
reason whatsoever, such unlawfulness or invalidity shall not affect the validity
of this Agreement.
15. Governing Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of Delaware, without giving effect to
conflicts of laws.
16. Headings. The headings of this Agreement are inserted solely for the
convenience of reference and are not part of, and are not intended to govern,
limit or aid in the construction of any term or provision hereof.
17. Further Acts. Each party agrees to perform any further acts and execute
and deliver any further documents that may be reasonably necessary to carry out
the provisions and intent of this Agreement.
18. Acknowledgment Concerning Counsel. Each party acknowledges that it had
the opportunity to employ separate and independent counsel of its own choosing
in connection with this Agreement.
19. Independent Contractor Status. There is no relationship, partnership,
agency, employment, franchise or joint venture between the parties. The parties
have no authority to bind the other or incur any obligations on their behalf.
20. Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly execute this
Agreement as of the date first written above.
AMERICAN INFLATABLES, INC.
/s/ Xxxxx Xxxxxxxxxx
BY: ----------------------------------
Xxxxx Xxxxxxxxxx, its President
Xxxx Xxxxxxx, Certified Public Accountant
/s/ Xxxx Xxxxxxx
-----------------------------------------
Xxxx Xxxxxxx, Principal
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