Ex. 10.7.1
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 Xxxxx
Xxxxxxxx, 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 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 evaluating possible
acquisition and strategic partnering candidates, and
marketing opportunities for the Company 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. Engagement. The Company hereby engages the Consultant to
perform the Services, as defined
and set forth in paragraph 1.4, for the Term as defined and set
forth in paragraph 1.2, and the Consultant hereby
accepts this engagement, on the terms and subject to the
conditions set forth in this Agreement
1.2. 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").
1.3. 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.
1.4. 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 possible acquisition and strategic partnering
candidates, and marketing
opportunities for the Company.
(b) Advise and consult with the Company's board of directors (the
"Board") and executive
officers with respect to any of the above described matters.
1.5. 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.
1.6. 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.
1.7. 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 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 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.
1.8. 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.
1.9. 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.
1.10. 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
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, as a
fee for its Services under this
Agreement (the "Consultant's Fee") (i) 1,000,000 Class C Warrants
each to purchase one share of common
stock at a price of $.35 per share at any time prior to the
expiration of twelve months after the Initial
Exercise Date as defined in the Warrant Agreement, (ii) 750,000
Class D Warrants each to purchase one
share of common stock at a price of $.50 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) 500,000 Class E Warrants each to
purchase one share of common stock at a price of $.73 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") which
shall be fully earned and non-refundable in consideration of its
execution of this Agreement. The Company
shall issue the Warrants in the name of the Consultant.
(b) In connection with the formation of a strategic plan for
2003, the Board adopted a
directors and officers stock option and stock award plan (the
"Plan"). The Company filed a registration
statement on Form S-8 (the "Registration Statement") with the
Securities and Exchange Commission (the
"SEC") that registers the issuance of shares of common stock,
preferred stock and options under the terms
of the Plan. The Company shall issue the Consultant's Fee
pursuant to and in accordance with the Plan.
The certificates representing the Warrants 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 Warrants as well as the shares of common stock
usable upon their conversion, free and
clear of any legend, restriction or stop order, and deliver the
shares, so registered, to Consultant. The
Company warrants that the Warrants 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 Warrants as well as the shares of common stock
usable upon their conversion.
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, and shall indemnify the Company against and
hold it harmless from any such taxes.
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 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) Corporate Power and Authority. The execution, delivery and
performance by the
Company of this Agreement, including the issuance of the Warrants
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 Common Stock. The shares of common stock are duly and
validly authorized, and
when issued in accordance with the terms of this Agreement 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) 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 her election to receive the
Consultant's Fee in the form of the Warrants, 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 her 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 her 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:
Xxxxx Xxxxxxxx
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 Texas
sitting in City of Houston, County of
Xxxxxx (the "Xxxxxx 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
Xxxxxx 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 Xxxxxx Courts in any Related
Action, including any claim of forum non conveniens
or that the Xxxxxx 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 Xxxxxx 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 Xxxxxx 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/ Xxxxx Xxxxxxxx
----------------------
Xxxxx Xxxxxxxx
