EXHIBIT 4.9
INDEPENDENT CONTRACTOR FEE/CONSULTING AGREEMENT
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THIS AGREEMENT is made and entered into on February 17, 2004 by and between
NanoSignal Corporation, a Nevada corporation ("NNOS") and Xxx XxXxxxxx, a
resident of Reno, NV ("XxXxxxxx").
RECITALS
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WHEREAS, NNOS is a public company trading on the OTCBB under the symbol
"NNOS"; and
WHEREAS, XxXxxxxx is knowledgeable in the areas of business operations of
NNOS and possesses skills and experience in mergers and acquisitions and
business strategies;
WHEREAS, XxXxxxxx has provided valuable assistance and advice regarding
American Stock Exchange and other exchanges upon the shares of NNOS may become
listed;
WHEREAS, NNOS wishes to engage XxXxxxxx on a non-exclusive basis as an
independent contractor to continue utilizing his skills, business experience,
and his business knowledge to assist in completing certain strategic business
plans of NNOS to complete an asset roll-up and AMEX merger;
WHEREAS, NNOS and XxXxxxxx intend that this Agreement and the services
performed hereunder shall be made, requested and performed in such a manner that
this Agreement shall be a "written compensation agreement" as defined in Rule
405 of the Securities and Exchange Commission ("Commission") pursuant to which
NNOS may issue "freely tradeable" shares (except as may be limited by
"affiliate" status) of its common stock as payment for services rendered
pursuant to an S-8 Registration Statement to be filed with the Commission by
NNOS; and
WHEREAS, XxXxxxxx is willing to be so retained on the terms and conditions
set forth in this Agreement.
AGREEMENT
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NOW, THEREFORE, in consideration of the promises and the mutual agreements
hereinafter set forth, the parties hereto agree as follows:
1. Engagement. NNOS hereby retains and engages XxXxxxxx to perform the
following consulting services (the "Consulting Services"):
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1.1 Duties of XxXxxxxx. XxXxxxxx will continue to help NNOS evaluate the
28G Real Estate development component of the AMEX merger possibilities and
assist in negotiating landowner/shareholders approvals of the project. XxXxxxxx
will also provide such services and advice to NNOS so as to assist NNOS with
matters relating to acquisition targets for NNOS and advise and administer the
structure of any such mergers or other acquisitions. Without limiting the
generality of the foregoing, XxXxxxxx will also assist NNOS in administering,
studying and evaluating acquisition proposals, review reports and studies
thereon when advisable, and assist in negotiations and discussions pertaining
thereof. Nothing contained herein constitutes a commitment on the part of
XxXxxxxx to find an acquisition target for NNOS or, if such target is action
will be completed. XxXxxxxx will assist NNOS in creating its business
development and business strategy as well as marketing strategies.
2. Duties Expressly Excluded. This Agreement expressly excludes XxXxxxxx
from providing any and all capital formation and/or public relation services to
NNOS inclusive of but not limited to (i) direct or indirect promotion of NNOS's
securities; (ii) assistance in making of a market in NNOS's securities; and
(iii) assistance in obtaining debt and/or equity financing. XxXxxxxx shall not
have the power of authority to bind NNOS to any transaction without NNOS's prior
written consent.
3. Term. All services performed at the request of NNOS by XxXxxxxx shall
have been performed within 180 days from the date hereof, at which time this
Agreement shall terminate, unless otherwise provided herein; provided, however,
this Agreement may be extended for an additional 180 day period by written
agreement of NNOS and any of the Consultants.
4. Consideration. NNOS and XxXxxxxx agree that XxXxxxxx shall receive from
NNOS a fee consisting of the following:
A. 2,000,000 shares of NNOS's unrestricted common stock shares of the
NNOS's Common Stock, par value $0.01 per share (the "Common Stock"), covered by
a registration statement of the Company under the Securities Act of 1933, as
amended (the "Act"), on Form S-8 (the "S-8 Registration Statement") to be
prepared by NNOS at its expense and filed by NNOS with the SEC via XXXXX as soon
as practicable. NNOS covenants that the S-8 Registration Statement shall be kept
effective until such time as all of the S-8 shares have been sold pursuant
thereto. NNOS hereby further agrees to exert its best efforts to cause as
expeditiously as is practicable all of the S-8 shares to be certificated and
credited by the Depository Trust Company ("DTC") to the securities brokerage
account of Consultant specified by Consultant. These shares shall be paid in
advance, as consideration for the services already rendered or to be rendered
pursuant to this Agreement. These shares shall be issued immediately.
5. Expenses. XxXxxxxx shall bear his out-of-pocket costs and expenses
incident to perform the Consulting Services, without a right of reimbursement
from NNOS unless such expenses are pre-approved by NNOS.
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6. XxXxxxxx Liability. In the absence of gross negligence or willful
misconduct on the part of XxXxxxxx or XxXxxxxx breach of any terms of this
Agreement, XxXxxxxx shall not be liable to NNOS or to any officer, director,
employee, stockholder or creditor of NNOS, 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
XxXxxxxx or the breach by XxXxxxxx of any terms of this Agreement is alleged and
proven, NNOS agrees to defend, indemnify, and hold harmless from and against any
and all reasonable costs, expenses and liability (including reasonable
attorney's fees paid in the defense of XxXxxxxx) which may in any way result
from services rendered by XxXxxxxx 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 NNOS made by XxXxxxxx without
the prior approval or authorization of NNOS.
7. NNOS's Liability. XxXxxxxx agrees to defend, indemnify and hold NNOS
harmless from an against any and all reasonable costs, expenses and liability
(including reasonable attorney's fees paid in defense of NNOS) which may in any
way result pursuant to his gross negligence or willful misconduct or in any
connection with any actions taken or statements made on behalf of NNOS without
the prior approval or authorization of NNOS or which are otherwise in violation
of applicable law.
8. Representations. XxXxxxxx makes the following representations:
X. XxXxxxxx has no prior or existing legally binding obligations
that are in conflict with his entering into this Agreement;
X. XxXxxxxx 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 NNOS's securities;
X. XxXxxxxx is not currently the subject of an investigation or
inquiry by the Securities and Exchange Commission, the NASD,
or any state securities Commission;
X. XxXxxxxx activities and operations fully comply with now and
will comply with in the future all applicable state and
federal securities laws and regulations;
X. XxXxxxxx agrees to reasonably to insure that neither he nor
his employees, agents, or affiliates, trade in the securities
of client companies while in possession of material non-public
information;
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F. During the term of this Agreement and for a period of two
years thereafter, XxXxxxxx shall treat as NNOS's confidential
trade secrets all data, information, ideas, knowledge and
papers pertaining to the affairs of NNOS. Without limiting the
generality of the foregoing, such trade secrets shall include:
the identity of NNOS's customers, suppliers and prospective
customers and suppliers; the identity of NNOS's creditors and
other sources of financing, NNOS's estimating and costing
procedures and the costs and gross prices charged by NNOS for
its products, the prices or other consideration charged to or
required of NNOS by any of its suppliers or potential
suppliers; NNOS's sales and promotional policies; and all
information relating to entertainment programs or properties
being developed or otherwise developed by NNOS. XxXxxxxx shall
not reveal said trade secrets to others except in the proper
exercise of his duties for NNOS, or use their knowledge
thereof in any way that would be detrimental to the interest
of NNOS, 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
XxXxxxxx, or (iii) required to be disclosed by XxXxxxxx
pursuant to judicial or governmental order. XxXxxxxx shall
also treat all information pertaining to the affairs of NNOS's
suppliers and customers and prospective suppliers and
customers as confidential trade secrets of such customers and
suppliers and prospective customers and suppliers.
9. NNOS's Representations. NNOS makes the following representations:
A. NNOS is not currently the subject of an investigation or
inquiry by the Securities and Exchange Commission, the NASD,
or any state securities Commission; and
B. NNOS is in good standing in its state of incorporation.
10. Entire Agreement. This Agreement embodies the entire agreement and
understanding between NNOS and XxXxxxxx 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 provisions of this Agreement shall be deemed,
or shall constitute a waiver of any other provisions, nor shall any waiver
constitute a continuing waiver. 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 NNOS (except by operation of law or merger) but shall be
freely assignable by XxXxxxxx; and it shall be binding upon and inure to the
benefits of the parties and their respective successors, assigns and legal
representatives.
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13. Governing Law and Attorney's Fees. In the event there is a dispute
regarding this Agreement, it shall be governed by Nevada law. Should litigation
arise in regard to this Agreement, the prevailing party shall be entitled to
costs and the attorney's fees actually incurred. The term "prevailing party" as
used in this paragraph means the party that is entitled to recover costs of
suit.
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. 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.
16. 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.
17. 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.
18. 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.
19. 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 duly execute this Agreement as of
the date first written above.
NanoSignal Corporation Xxx XxXxxxxx
By: /s/ Xxxxx Xxxxx By: /s/ Xxx XxXxxxxx
Authorized Corporate Signatory Xxx XxXxxxxx
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