[Exhibit 99.4]
CONSULTING AGREEMENT
This consulting agreement (this "Agreement"), effective as of May 18,
2006, is entered by and between PSI - TEC Holdings Corporation (xxx.xx
PTHO) ("the Company") and Insight Capital Consultants Corporation, a
Pennsylvania corporation ("Consultant").
RECITALS
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WHEREAS, the Company is a public Company with its shares of common
stock trading on the OTC Pink Sheets in the United States; and
WHEREAS, Consultant has experience in the area of corporate finance,
investor communications and financial and investor public relations;
and
WHEREAS, the Company desires to engage the services of Consultant to
assist and consult with the Company in matters concerning corporate
finance, investor communications and public relations with existing
shareholders, brokers, dealers and other investment professionals as
to the Company's current and proposed activities;
NOW THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein set forth, and intending to be legally
bound, the Company and Consultant agree as follows:
1. Term of Consultancy. The Company engages Consultant to act in a
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consulting capacity to the Company, and Consultant agrees to
provide services to the Company commencing on the date first set
forth above and ending one (1) year later (the "term of this
Agreement.")
2. Duties of Consultant. The Consultant will generally provide the
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following specified consulting services (the "Services") through
its officers and employees during the term of this Agreement:
a. Advise and assist the Company in developing and
implementing appropriate plans and materials for presenting
the Company and its business plans, strategy and personnel
to the financial community, establishing an image for the
Company in the financial community, and creating the
foundation for subsequent financial public relations
efforts;
b. Introduce the Company to the financial community;
c. With the cooperation of the Company, maintain an awareness
during the term of this Agreement of the Company's plans,
strategy, and personnel, as they may evolve during such
period, and advise and assist the Company in communicating
appropriate information regarding such plans, strategy and
personnel to the financial community;
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d. Assist and advise the Company with respect to its (i)
stockholder and investor relations, (ii) relations with
brokers, dealers, analysts and other investment
professionals, and (iii) financial and media public
relations generally;
e. Perform the functions generally assigned to
investor/stockholder relations departments in major
corporations, including responding to telephone and
written inquiries (which may be referred to the
Consultant by the Company); assisting in the
preparation of press releases for the Company with the
Company's involvement and approval or reviewing press
releases, reports and other communications with or to
shareholders, the investment community and the general
public; advising with respect to the timing, form,
distribution and other matters related to such
releases, reports, communications and consulting with
respect to corporate symbols, logos, names, the
presentation of such symbols, logos and names, and
other matters relating to corporate image.
f. Upon receipt of the Company's approval, disseminate
information regarding the Company to shareholders,
brokers, dealers and other investment community
professionals and the general investing public.
g. Upon receipt of the Company's approval, conduct
meetings in person or by telephone , with brokers,
dealers, analysts, other investment professionals and
the general investment public;
h. At the Company's request, review business plans,
strategies, mission statements, budgets, proposed
transactions and other plans for the purpose of
advising the Company of the investment community
implications thereof; and
i. Otherwise perform as the Company's financial relations
and public relations consultant.
3. Allocation of Time and Energies. The Consultant will perform the
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Services in a professional manner in accordance with accepted
industry standards and in compliance with applicable securities
laws and regulations. Although no specific hours-per-day
requirement will be required, the parties acknowledge and agree
that a disproportionately large amount of the effort to be
extended and the costs to be incurred by the Consultant and the
benefits to be received by the Company are to be expected to
occur upon and shortly after, and in any event, within two months
of the effectiveness of this Agreement. It is explicitly
understood that Consultants performance of its duties hereunder
will in no way be measured by the price of the Company's common
stock, nor the trading volume of the Company's common stock. It
is understood that the Company is entering into this Agreement
with the understanding that Xxxxx Xxxxx will be an officer and a
director of Consultant during the entire term of this Agreement.
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4. Remuneration As full and complete compensation for Consultant's
agreement to perform the Services, the Company shall compensate
the Consultant as follows:
a. For undertaking this engagement and for other good and
valuable consideration, the Company agrees to issue and
deliver to the Consultant a "Commencement Bonus" payable in
the form of 200,000 shares of the Company's Common Stock
("Common Stock"). This Commencement Bonus shall be issued
to the Consultant immediately following execution of this
Agreement and shall, when issued to the Consultant be fully
paid and non-assessable. The Company understands and agrees
that Consultant has forgone significant opportunities to
accept this engagement and the Company derives substantial
benefit from the execution of this Agreement and the
ability to establish its relationship with Consultant. The
shares of Common Stock issued as a Commencement Bonus,
therefore, constitute payment for Consultant's agreement to
consult with the Company and are a nonrefundable and non-
ratable retainer. Such Shares are not a prepayment for
future services. If the Company attempts to terminate this
Agreement prior to the expiration of its term for any
reason whatsoever, it is agreed and understood that
Consultant will not be requested or demanded by the Company
to return any of the Shares paid to it hereunder.
b. All Shares of the Common Stock issued pursuant to this
Agreement shall be issued in the name of Consultant. The
Company agrees that it will use its best efforts to include
all shares issued to Consultant hereunder in the Company's
next Registration Statement filed with the SEC pursuant to
which such shares could be registered and will use its best
efforts to cause such Registration Statement to be declared
effective by the SEC as soon as possible thereafter.
c. Consultant acknowledges that the shares of Common Stock to
be issued pursuant to this agreement (collectively, the
"Shares") have not been registered under the Securities Act
of 1933 and accordingly are "restricted securities" within
the meaning of Rule 144 of the Act. As such, the shares may
not be resold or transferred unless the Company has
received an opinion of counsel reasonably satisfactory to
the Company that such a resale or transfer is exempt from
the registration requirements of that Act.
5. Finders Fee
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a. If, during the term of this Agreement, or within one year
thereafter any Fee Transaction (as herein defined) occurs,
then the Company shall pay to Consultant a finder's fee
(the "Fee") equal to two and one half percent (2.5%) of the
Consideration (as herein defined).
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b. The term "Fee Transaction" means 1) a merger, consolidation
or a sale or exchange of substantially all of the stock of
the Company or its assets, 2) such other transaction as may
be used in the disposal of a substantial portion of the
ownership interests in or assets of the Consultant or 3)
any investment made directly or indirectly in, or debt
financing provided to or for the benefit of, the Company or
its shareholders by any third party introduced by
Consultant to the Company during the term of this
engagement. The term "Consideration" means the aggregate
amount of cash and the fair market value (on the date of
payment) of securities or assets received by or for the
benefit of the Company or its shareholders in connection
with a Fee Transaction. "Consideration" includes, but is
not limited to, the total fair market value of (a) cash,
securities, assets and other tangible property received by
the Company or its shareholders in a Fee Transaction or
distributable to the Consultant or its shareholders upon
liquidation or dissolution of the Consultant following a
Fee Transaction, (b) any amounts payable to the Company or
its shareholders under any noncompete agreement or other
agreements entered in connection with a Fee Transaction,
and (c) any compensation payable to any shareholder of the
Company under any employment or consulting contract entered
in connection with a Fee Transaction but only to the extent
such compensation exceeds the then current compensation of
such shareholder.
c. If the Consideration shall consist entirely of cash paid at
the closing of a Fee Transaction, the Fee payable to
Consultant shall be paid to Consultant upon such closing.
To the extent the Consideration is paid at closing and
consists wholly or partially of stock, other securities or
other property (other than cash), the Company shall use its
best efforts to make a cash payment to Consultant at
closing equivalent to the "Fair Value" of such
Consideration, defined as the fair value to be agreed upon
between Consultant and the Company and taking into account
appropriate discounts for any applicable holding periods,
volume, contractual, legal or other limitations or
restrictions on sale or transfer, "blockage discounts" or
any other limitations or restrictions on alienation with
respect to any such stock, other securities or other
property; however, if such valuation is not feasible or
practicable or if such fair value is not agreed upon, a
portion of Fee may be paid to Consultant in the same form
(i.e., stock, other securities or other property) and in
the same proportions in which the Consideration is received
by the Company or its stockholders, as the case may be.
d. If the Consideration shall consist entirely of cash but the
payment of all or any portion of the Consideration shall be
deferred and shall not be made until after closing of a Fee
Transaction, the Company may, in its discretion, pay to
Consultant the Fee on the same pro rata basis and at the
same time or times as the Consideration is received by the
Company
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or the Company's stockholders (as the case may be). If any
of the deferred payments of the Consideration consists
wholly or partially of stock, other securities or other
property (other than cash), then with respect to each such
payment, the Company shall use its best efforts to make a
cash payment to Consultant equivalent to the Fair Value of
such Consideration; however, if such determination of Fair
Value is not feasible or practicable or if such Fair Value
is not agreed upon,a portion of the Fee may be paid to
Consultant in the same form (i.e., stock, other securities
or other property) at the same time and in the same
proportions in which the Consideration is received by the
Company or its stockholders, as the case may be.
e. Notwithstanding all of the foregoing provisions of this
Section 5, in lieu of payment of portions of the Fee as the
Consideration is so received, the Company may, at its
option, pay to the Consultant the entire Fee in cash at
closing, discounted to take into account the reasonably
projected rate of inflation, and the period over which the
Consideration is to be received, the then-generally-
prevailing interest rate for unsecured debt obligations for
such period of time of corporate borrowers of the highest
credit standing, and, if applicable, the factors set forth
in the immediately preceding sentence with regard to
Consideration in the form of stock, other securities or
other property.
f. The Fee payable to Consultant will be in addition to any
fees payable by the Company to any other intermediary, if
any, which shall be per separate agreements negotiated
between the Company and such other intermediary. It is
specifically understood that Consultant is not nor does it
hold itself out to be a Broker/Dealer or investment
adviser, but rather merely a "Finder" in reference to the
Company procuring financing sources and acquisition and
merger candidates.
g. It is further understood that the Company, and not
Consultant, is responsible to perform any and all due
diligence on any lender, equity purchaser or
acquisition/merger candidate introduced to it by Consultant
under this Agreement, prior to the Company receiving funds
or closing on any acquisition.
h. Consultant will notify the Company of introductions it
makes for potential sources of financing or acquisitions in
a timely manner (within 3 days of introduction). If the
Company has a preexisting relationship with such nominee
and believes such party should be excluded from the
Agreement, then the Company will notify Consultant
immediately of such circumstances via facsimile memo.
6. Expenses. Consultant agrees to pay for all its expenses (phone,
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labor, etc.), other than extraordinary items for which the
Company will reimburse Consultant.
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Such extraordinary items include travel and entertainment
required by/or specifically requested by the Company,
luncheons or dinners for large groups of investment
professionals, mass faxing to a sizable percentage of the
Company's constituents, investor conference calls, print
advertisements in publications and like expenses approved by
the Company prior to its incurring an obligation for
reimbursement.
7. Indemnification.
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a. The Company agrees to indemnify and hold Consultant
harmless from and against any losses, damages or
liabilities related to or arising out of Consultant's
engagement,and will reimburse Consultant for all reasonable
expenses (including reasonable counsel fees) as they are
incurred by Consultant in connection with investigating,
preparing for or defending any action or claim related
thereto, whether or not in connection with pending or
threatened litigation in which Consultant is a party. The
Company will not, however, be responsible for any actions,
claims, liabilities, losses, damages or expenses which are
finally judicially determined to have resulted primarily
from the bad faith or gross negligence of Consultant. The
Company also agrees that Consultant shall not have any
liability for or in connection with such engagement, except
for any such liability for losses, claims, damages,
liabilities or expenses incurred by the Company that result
primarily from the bad faith or gross negligence of
Consultant. In the event that the foregoing indemnity is
unavailable (except by reason of the bad faith or gross
negligence of Consultant), then the Company shall
contribute to amounts paid or payable by Consultant in
respect of its losses, claims, damages and liabilities in
such proportion as appropriately reflects the relative
benefits received by, and fault of, it and Consultant in
connection with the matters as to which such losses,
claims, damages or liabilities relate and other equitable
considerations; provided, however, that in no event shall
the amount to be contributed by Consultant exceed the
amounts actually received by Consultant. The foregoing
shall be in addition to any rights that Consultant may have
at common law or otherwise and shall extend upon the same
terms to and inure to the benefit of any director, officer,
employee, agent or controlling person of Consultant.
8. Representations. The Company warrants and represents that all
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oral communications, written documents or materials furnished to
Consultant are accurate, and the Consultant warrants and
represents that all communications by Consultant with the public,
with respect to the financial affairs, operations, profitability
and strategic planning of the Company will be in accordance with
information provided to it by the Company. The Consultant may
rely upon the accuracy of the information provided by the Company
without independent investigation. Consultant represents that it
is not required to maintain any licenses and registrations under
federal or any state regulations necessary to
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perform the services set forth herein. Consultant acknowledges
that to the best of its knowledge, the performance of the
Services will not violate any rule or provision of any regulatory
agency having jurisdiction over Consultant. Consultant
acknowledges that to the best of its knowledge, Consultant and
its officers and directors are not the subject of any
investigation, claim, decree or judgment involving any violation
of the SEC or securities law. The Company acknowledges that to
the best of its knowledge that it has not violated any rule or
provision of any regulatory agency having jurisdiction over the
Company. The Company also acknowledges that, to the best of its
knowledge, the Company is not the subject of any investigation,
claim, decree or judgment involving any violation of the SEC or
securities laws.
9. Status as Independent Contractor. Consultant's engagement
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pursuant to this Agreement shall be as independent contractor,
and not as employee, officer or other agent of the Company.
Neither party to this Agreement shall represent or hold itself
out to be the employer or employee of the other. Consultant
further acknowledges the consideration provided hereinabove is a
gross amount of consideration and that the Company will not
withhold from such consideration any amounts as to income taxes,
social security payments or any other payroll taxes. All such
income taxes and other such payment shall be made or provided for
by Consultant and the Company shall have no responsibility or
duties regarding such matters. Neither the Company nor the
Consultant possesses the authority to bind each other in any
agreements without the express written consent of the entity to
be bound.
10. Attorneys Fees. If any legal action or any arbitration or other
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proceeding is brought for the enforcement or interruption of the
Agreement, or because of alleged dispute, breach, default or
misrepresentation in connection with or related to this
Agreement, the successful or prevailing party shall be entitled
to recover reasonable attorney's fees and other costs in
connection with that action or proceeding, in addition to any
other relief to which they may be entitled.
11. Waiver. The waiver by either party of a breach of any provision
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of this agreement by the other party shall not operate or be
construed as a waiver of any subsequent breach by such other
party.
12. Notices. All notices, requests, and other communications
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hereunder shall be deemed to be duly given if sent by U.S. mail,
postage prepaid, addressed to the other party at the address set
forth herein below:
PSI-TEC Holdings Corporation Insight Capital Consultants Corporation
0000 Xxxxxx Xxxxx, Xxxxx 00 000 Xxxx Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000 Xxxx, XX 00000
Either party may change address to which notices for it
shall be addressed by providing notice of such change to
the other party in the manner set forth in this
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paragraph.
13. Choice of Law, Jurisdiction and Venue. This Agreement shall be
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governed by, construed and enforced in accordance with the
internal laws of the State of Delaware without giving effect to
its conflict of laws or choice of law principles.
14. Arbitration. Any controversy or claim arising out of or relating
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to this Agreement, or the alleged breach thereof, or relating to
Consultant's activities or remuneration under this Agreement,
shall be settled by binding arbitration in Pittsburgh,
Pennsylvania, in accordance with the applicable rules of the
American Arbitration Association, and judgment on the award
rendered by the arbitrator(s) shall be binding on the parties and
may be entered in any court having jurisdiction.
15. Complete Agreement. This Agreement contains the entire agreement
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of the parties relating to the subject matter hereof. This
Agreement and its terms may not be changed orally but only by an
agreement in writing signed by the party against whom enforcement
of any waiver, change, modification, extension or discharge is
sought.
AGREED TO:
"The Company" PSI-TEC HOLDINGS CORPORATION
Date:11/1/06 By: /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx, VP
& It's Duly Authorized Officer
"Consultant" INSIGHT CAPITAL CONSULTANTS CORPORATION
Date:6/7/06 By: Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx, President
& It's Duly Authorized Officer
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