EXHIBIT 10.10
MILLENNIUM
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Holdings Group, Inc.
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CONSULTING AGREEMENT
THIS AGREEMENT (the "Agreement"), is made and entered into as of this
22nd day of October, 1997, by and between Millennium Holdings Group, Inc., a New
York Corporation with offices at 0000 Xxxxxxxxx Xxxxxxxxx, X.X., Xxxxx 000, Xxxx
Xxxxx, XX 00000 ("Millennium" or the "Consultant") and DelSoft Consulting with
offices at 000 Xxxxxx Xxxx, Xxxxxxx, XX 00000 ("Company") (together the
"Parties").
WHEREAS, the Parties desire to formalize the terms and conditions
under which Millennium shall provide consulting services to the Company;
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, and other valid consideration, receipt of which is hereby
acknowledged, the Parties agree as follows:
1. Term of Agreement and Renewal.
The Agreement shall remain in effect from the date of execution hereof
through the expiration of a one year period, and may be renewed upon the mutual
consent of the Parties.
2. Nature of Services to be Rendered.
Millennium shall provide the Company with corporate consulting services in
the areas of mergers and acquisitions, corporate finance, corporate financial
relations, introductions to other financial relations companies and other
financial services. Millennium shall also use its best efforts to locate and
identify to the Company private and/or public companies for potential merger
with or acquisition by the Company.
3. Compensation.
As compensation for its consulting services rendered hereunder, the Company
shall pay to Millennium and Millennium shall accept securities, as follows:
(a) The Company shall issue to Millennium, simultaneously with the
execution of this Agreement and upon receipt of Millennium's check in the amount
of $100, representing consideration for the shares, a total of one hundred
thousand (100,000) shares of the Company's
restricted common stock, at $.001 per share (the "Shares"), with registration
rights as hereinafter described; The Company shall allow Millennium "piggyback"
registration rights on the 144 stock as follows: 50,000 shares to be registered
in any registration within one year and 50,000 shares to be registered within
any further registrations.
In connection with the location and identification of potential
candidates for corporate merger and/or acquisition, the Consultant shall be
entitled to receive compensation in an amount equal to ten percent (10%) of the
value of the total price paid by the Company for any completed merger or
acquisition with an identity located and/or identified by the Consultant (the
"Transaction"). One-half of the Consultant's fee shall be paid in cash and one-
half in shares of the Company's restricted stock, with "piggyback" registration
rights as described in paragraph #9 of this Agreement. In the event no cash is
paid in the Transaction, than the entire fee shall be payable in shares of the
Company's stock, should the Transaction involve all cash, then the entire fee to
the Consultant shall be payable in cash.
4. Warranties and Representations of the Consultant.
In order to induce the Company to enter into this Agreement, the Consultant
hereby makes the following unconditional warranties and representations:
(a) In connection with its execution of and performance under this
Agreement, the Consultant has not taken and will not take any action which would
cause it to become required to make any filings with or to register in any
capacity with the Securities and Exchange Commission (the "SEC"), the National
Association of Security Dealers, Inc. (the "NASD"); the securities commissioner
or department of any state, or any other regulatory or governmental body or
agency.
(b) Neither the Consultant nor any of its principals is subject to any
sanction or restriction imposed by the SEC, the NASD, any state securities
commission or department, or any other regulatory or governmental body or
agency, which would prohibit, limit or curtail the Consultant's execution of
this Agreement or the performance of its obligations hereunder.
(c) The Consultant will take no action causing it to be a "promoter"
pursuant to the Securities Act, requiring disclosure in SEC filings, without the
Company's prior written consent.
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(d) Millennium's purchase of Shares pursuant to this Agreement is an
investment made for its own account.
(e) Millennium is not now a party to a consulting agreement with any
other corporation or entity involved in a business which is the same as or
similar to the Company's.
(f) Millennium is permitted to provide consulting services to any
corporation or entity engaged in a business identical or similar to the
Company's, provided, however, that the Consultant shall keep confidential all
information it receives from the Company which is of a confidential or
proprietary nature, without disclosure to or for the benefit of any third
parties.
5. Warranties and Representations of the Company.
In order to induce the Consultant to enter into this Agreement, the Company
hereby makes the following unconditional warranties and representations:
(a) The Company is not subject to any restriction imposed by the SEC
or by operation of the Securities Act of 1933, as amended (the "1933 Act"), the
Exchange Act of 1934, as amended (the "1934 Act") or any of the rules and
regulations promulgated under the 1933 Act or the 1934 Act which would prohibit
its execution of this Agreement or the performance of its obligations to the
Consultant herein set forth.
(b) The Company has not been sanctioned by the SEC or any state
securities commissioner or department in connection with any issuance of its
securities.
(c) The Company is not a party to any other contract or agreement with
terms similar to those contained herein.
(d) All payments required to be made to Millennium hereunder will be
made on time and in accordance with the payment terms and conditions set forth
herein.
(e) The Company acknowledges that Millennium does not guarantee its
ability to cause the consumption of any contract or merger or acquisition with
any corporate candidate.
6. Execution of Investment Letter.
Simultaneously with the execution hereof, Millennium shall execute and
deliver to the Company an investment letter in the form annexed hereto as
Exhibit "A".
7. Issuance of Shares to Millennium.
Upon receipt of the Consultant's check in payment of the full purchase
price for the Shares together with the Investment Letter, the Company will cause
to be issued to Millennium a
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validly-endorsed stock certificate bearing the facsimile signatures of its
President and Secretary. Such Shares shall be issued as fully-paid and non-
assessable securities. The Company shall take all corporate action necessary for
the Share issuance to be legally valid and irrevocable, including obtaining the
prior unanimous written consent of its Board of Directors.
8. Registration Obligations.
Should the Company file any registration statement with the SEC for any of
its securities, at any time subsequent to the date of execution of this
Agreement, the Company shall provide prior written notice of its intention to
Millennium and to any subsequent holder of any portion of the Shares, at written
request and direction of the Consultant and/or subsequent holders, shall
thereupon be included in such registration statement. (See 3a of this agreement)
9. Waiver of Registration Obligations.
In the event of NASD-registered broker-dealer shall execute a letter of
intent to conduct a firm commitment underwriting of the Company's securities,
with anticipated gross proceeds of at least $1,000,000, and shall require that
all of the Company's shareholders waive registration rights, Millennium will
provide a written waiver of its registration right herein provided.
10. Expense Reimbursement.
Millennium shall be entitled to receive cash reimbursement, and the Company
shall provide cash reimbursement, of all cash expenses paid by Millennium on
behalf of the Company in performance of its duties hereunder. Such expenses
shall include without limitation expenses for communications, deliveries and
travel. In no event, however, will Millennium incur on behalf of the Company an
expense in excess of $500 without the prior written consent of the Company.
11. Indemnification of Millennium by the Company.
The Company shall indemnify and hold harmless Millennium and its principals
from and against any and all liabilities and damages in connection with the
Company's ownership and operation and, without limiting the foregoing, shall pay
the Consultant's legal fees and expenses if the Company is named as a defendant
in any proceedings brought in connection with the Company.
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12. Indemnification of the Company by the Consultant.
Millennium shall indemnify and hold harmless the Company and its principals
from and against any and all liabilities and damages arising out actions taken
by Millennium in connection with its services as consultant, which actions were
not authorized by the Company.
13. Arbitration.
Any and all conflicts, disputes and disagreements arising out of or in
connection with any aspect of the Agreement shall be subject to arbitration in
accordance with the rules of The American Arbitration Association then in
effect. Written Notice of Dispute shall be served by either Party upon the
other Party at its address set forth herein or such other address as it shall
have provided in writing for that purpose, and the arbitration date shall be set
no later than two months from the date such Notice is served. The dispute shall
be submitted to The American Arbitration Association headquarters located at 000
Xxxx 00xx Xxxxxx, Xxx Xxxx Xxxx. The Parties designate the Supreme Court, New
York County as the court in which any arbitration award shall be subject to
confirmation, and will abide by such confirmation.
14. Entire Understanding/Incorporation of other Documents.
With the exception of the Investment Letter, the Agreement contains the
entire understanding of the Parties with regard to the subject matter hereof,
superseding any and all prior agreements or understandings whether oral or
written, and no further or additional agreements, promises, representations or
covenants may be inferred or construed to exist between the Parties.
15. No Assignment or Delegation Without Prior Approval.
No portion of the Agreement or any of its provisions may be assigned, nor
obligations delegated, to any other person or party without the prior written
consent of the Parties except by operation of law or as otherwise set forth
herein.
16. Survival of Agreement.
The Agreement and all of its terms shall inure to the benefit of any
permitted assignees of or lawful successors to either Party.
17. No Amendment Except in Writing.
Neither the Agreement nor any of its provisions may be altered or amended
except in a dated writing signed by the Parties.
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18. Waiver of Breach.
No waiver of any breach of any provision hereof shall be deemed to
constitute a continuing waiver or a waiver of any other portion of the
Agreement.
19. Severability of the Agreement.
Except as otherwise provided herein, if any provision hereof is deemed by
arbitration or a court of competent jurisdiction to be legally unenforceable or
void, such provision shall be stricken from the Agreement and the remainder
hereof shall remain in full force and effect.
20. Governing Law.
The Agreement and its provisions shall be construed in accordance with and
pursuant to, and governed by, the laws of the State of New York, as applicable
to agreements to be performed solely within the State of New York, without
regard to its conflict-of-laws provisions then in effect.
21. No Construction Against Drafter.
The Agreement shall be construed without regard to any presumption or other
rule requiring construction against the Party causing the drafting hereof.
IN WITNESS WHEREOF, the Parties have executed the Agreement as of the date
first above written.
DELSOFT CONSULTING, INC. MILLENNIUM HOLDINGS GROUP, INC.
By:____________________________ By:_____________________________________
Xxxx Xxxxx, C.F.O. Xxxx Xxxxxxxxxx, President
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INVESTMENT REPRESENTATION LETTER
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The undersigned subscriber (the "Subscriber") hereby offers to purchase
100,000 shares of the common stock, par value $.001 per share (the "Shares") of
DelSoft Consulting Inc. (the "Company") for total cash consideration of $100.00.
In order to induce the Company to accept this subscription offer, the Subscriber
hereby makes the following representations, gives the following warranties, and
acknowledges the following information:
(1) The Shares are being purchased solely for investment purposes, for the
Subscriber's own account, and not with a view to, or for sale in connection
with, any distribution of the Shares within the meaning of the Securities Act of
1933, as amended (the "Securities Act").
(2) The Shares have not been registered under the Securities Act and are to
be issued to the Subscriber in reliance upon one or more exemptions from
registration contained in the Securities Act and applicable state securities
laws. The Subscriber has no right to demand the registration of the Shares Act
to permit them to be resold, and no representations about subsequent
registrations have been made by the Company. The Shares cannot be transferred
except pursuant to a registration under the Securities Act or pursuant to an
exemption from the Securities Act deemed to be lawfully available.
(3) The exemption provided by Rule 144 under the Securities Act provide for
limited sale of unregistered shares but may not be available to the Subscriber
at the time s/he may desire to sell the Shares. No representations have been
made to the Subscriber that any part of the Shares will be saleable pursuant to
Rule 144 at any particular time.
(4) The Shares represent a speculative investment involving a high degree
of risk of loss of the purchase price.
(5) The Subscriber has such knowledge and experience in financial and
business matters that he is capable of evaluating the merits and risks of an
investment in the Shares and of making an informed investment decision.
(6) The Subscriber is able to bear the economic risk of the investment in
the Shares, to hold the Shares for an indefinite period of time, and to afford a
complete loss of the purchase price.
(7) The Shares will be represented by a certificate bearing a prominent
legend setting forth the restricted nature of the Shares as deemed appropriate
by the Company's counsel.
MILLENNIUM HOLDINGS ACCEPTED BY
GROUP, INC. DELSOFT CONSULTING INC.
By:_____________________________ By:________________________________
Xxxx Xxxxxxxxxx, President Xxxx Xxxxx, CFO
