CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement"), effective as of February 1, 2000 is
entered into by and between XXXXXXXXXXX.XXX, a Delaware corporation (herein
referred to as the "Company") and LIVIAKIS FINANCIAL COMMUNICATIONS, INC., a
California corporation (herein referred to as the "Consultant").
RECITALS
WHEREAS, Company is a publicly-held corporation with its common stock traded on
the OTC Bulletin Board; and
WHEREAS, Company desires to engage the services of Consultant to assist and
consult with the Company in matters concerning corporate finance and to
represent the company in investors' 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 promises and the mutual covenants and
agreements hereinafter set forth, the parties hereto covenant and agree as
follows:
1. Term of Consultancy. Company hereby agrees to retain the Consultant to act in
a consulting capacity to the Company, and the Consultant hereby agrees to
provide services to the Company commencing immediately and ending on January 30,
2001 .
2. Duties of Consultant. The Consultant agrees that it will generally provide
the following specified consulting services through its officers and employees
during the term specified in Section 1.:
(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;
(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 public relations generally;
(e) Perform the functions generally assigned to investor/stockholder
relations and public relations departments in major corporations, including
responding to telephone and written inquiries (which may be referred to the
Consultant by the Company); preparing 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 and 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 the Company's approval, disseminate information regarding
the Company to shareholders, brokers, dealers, other investment community
professionals and the general investing public;
(g) Upon the Company's approval, conduct meetings, in person or by
telephone, with brokers, dealers, analysts and other investment professionals to
advise them of the Company's plans, goals and activities, and assist the Company
in preparing for press conferences and other forums involving the media,
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 hereby promises to perform
and discharge faithfully the responsibilities which may be assigned to the
Consultant from time to time by the officers and duly authorized representatives
of the Company in connection with the conduct of its financial and investor
public relations and communications activities, so long as such activities are
in compliance with applicable securities laws and regulations. Consultant and
staff shall diligently and thoroughly provide the consulting services required
hereunder. Although no specific hours-per-day requirement will be required,
Consultant and the Company agree that Consultant will perform the duties set
forth herein above in a diligent and professional manner. The parties
acknowledge and agree that a disproportionately large amount of the effort to be
expended and the costs to be incurred by the Consultant and the benefits to be
received by the Company are expected to occur within or shortly after the first
two months of the effectiveness of this Agreement. It is explicitly understood
that Consultant's 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 also understood that the Company is entering into
this Agreement with Liviakis Financial Communications, Inc. ("LFC"), a
corporation and not any individual member of LFC, and, as such, Consultant will
not be deemed to have breached this Agreement if any member, officer or director
of LFC leaves the firm or dies or becomes physically unable to perform any
meaningful activities during the term of the Agreement, provided the Consultant
otherwise performs its obligations under this Agreement.
4. Remuneration. As full and complete compensation for services described in
this Agreement, the Company shall compensate LFC as follows:
4.1 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 1,980,000 shares of the Company's
Common Stock ("Common Stock"). The Company will issue and sell to Consultant and
Consultant will purchase from Company the 1,980,000 shares ("Common Stock") at
$0.01 per share. This Commencement Bonus shall be issued to the Consultant
immediately following execution of this Agreement and shall, when issued and
delivered to Consultant, be fully paid and non-assessable. The Company
understands and agrees that Consultant has foregone significant opportunities to
accept this engagement and that the Company derives substantial benefit from the
execution of this Agreement and the ability to announce its relationship with
Consultant. The 1,980,000 shares of Common Stock issued as a Commencement Bonus,
therefore, constitute payment for Consultant's agreement to consult to the
Company and are a nonrefundable, non-apportionable, and non-ratable retainer;
such shares of common stock are not a prepayment for future services. If the
Company decides to terminate this Agreement prior to January 30, 2001 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 of Common Stock
paid to it as Commencement Bonus hereunder. The shares of Common Stock issued
pursuant to this Agreement shall be issued in the name of Liviakis Financial
Communications, Inc.
4.2 For performance under this agreement on a month-to-month basis, a
Consultant Fee, payable in the form of 3,000 shares per month of the Company's
Common Stock. This Consultancy Fee shall be issued to the Consultant on a
monthly basis, the first month pro-rated according to the number of days
remaining in that month, and paid immediately following execution of this
Agreement; each following monthly payment payable in full on the first day of
the respective month. The monthly Consultancy Fee shall continue to be paid
monthly for the duration of this Consulting Agreement
4.3 With each transfer of shares of Common Stock to be issued pursuant to
this Agreement (collectively, the "Shares"), Company shall cause to be issued a
certificate representing the Common Stock and a written opinion of counsel for
the Company stating that said shares are validly issued, fully paid and
non-assessable and that the transfer of them to Consultant has been duly
authorized by the Company. Company warrants that all Shares transferred to
Consultant pursuant to this Agreement shall have been validly issued, fully paid
and non-assessable and that the transfer of them to Consultant shall have been
duly authorized by the Company's board of directors.
4.4 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 resale or transfer is exempt from the
registration requirements of that Act.
4.5 In connection with the acquisition of Shares hereunder, the
Consultant represent and warrant to the Company as follows:
(a) Consultant acknowledges that the Consultant has been afforded the
opportunity to ask questions of and receive answers from duly authorized
officers or other representatives of the Company concerning an investment in the
Shares, and any additional information which the Consultant has requested.
(b) Consultant's investment in restricted securities is reasonable in
relation to the Consultant's net worth, which is in excess of ten (10) times the
Consultant's cost basis in the Shares. Consultant has had experience in
investments in restricted and publicly traded securities, and Consultant has had
experience in investments in speculative securities and other investments which
involve the risk of loss of investment. Consultant acknowledges that an
investment in the Shares is speculative and involves the risk of loss.
Consultant has the requisite knowledge to assess the relative merits and risks
of this investment without the necessity of relying upon other advisors, and
Consultant can afford the risk of loss of his entire investment in the Shares.
Consultant is (i) an accredited investor, as that term is defined in Regulation
D promulgated under the Securities Act of 1933, and (ii) a purchaser described
in Section 25102 (f) (2) of the California Corporate Securities Law of 1968, as
amended.
(c) Consultant is acquiring the Shares for the Consultant's own
account for long-term investment and not with a view toward resale or
distribution thereof except in accordance with applicable securities laws.
5. Financing "Finder's Fee". It is understood that in the event Consultant
introduces Company, or its nominees, to a lender or equity purchaser, not
already having a preexisting relationship with the Company, with whom Company,
or its nominees, ultimately finances or causes the completion of such financing,
Company agrees to compensate Consultant for such services with a "finder's fee"
in the amount of 2.5% of total gross funding provided by such lender or equity
purchaser, such fee to be payable in cash. This 2.5% will be in addition to any
fees payable by Company to any other intermediary, if any, which shall be the
subject of separate agreements negotiated between Company and such other
intermediary; however, the total of such fees payable by Company to all
intermediaries, including Consultant relating to any single financing or
completion of financing shall not exceed ten percent (10%) of the total gross
funding provided by the introduced lender or purchaser for that particular
financing, and Company shall, if necessary, reduce fee(s) to other
intermediaries in order to meet such limitation. It is also understood that in
the event Consultant introduces Company, or its nominees, to an acquisition
candidate, either directly or indirectly through another intermediary, not
already having a preexisting relationship with the Company, which Company, or
its nominees, ultimately acquires or causes the completion of such acquisition,
Company agrees to compensate Consultant for such services with a "finder's fee"
in the amount of 2% of total gross consideration provided by such acquisition,
such fee to be payable in cash. This 2% will be in addition to any fees payable
by Company to any other intermediary, if any, which shall be the subject of
separate agreements negotiated between Company and such other intermediary;
however, the total such fees payable by Company to all intermediaries including
Consultant, relating to any single acquisition or completion thereof shall not
exceed ten percent (10%) of the total gross consideration provided by such
acquisition, and Company shall, if necessary reduce fee(s) to other
intermediaries in order to meet such limitation. It is specifically understood
that Consultant is not and does not hold itself out be a Broker/Dealer, but is
rather merely a "Finder" in reference to the Company procuring financing sources
and acquisition candidates.
5.1 It is further understood that Company, and not Consultant, is
responsible to perform any and all due diligence on such lender, equity
purchaser or acquisition candidate introduced to it by Consultant under this
Agreement, prior to Company receiving funds or closing on any acquisition.
However, Consultant will not introduce any parties to Company about which
Consultant has any prior knowledge of questionable, unethical or illicit
activities.
5.2 Company agrees that said compensation to Consultant shall be paid in
full at the time said financing or acquisition is closed, such compensation to
be transferred by Company to Consultant within seven (7) business days of the
execution of the financing of acquisition closing document. Payment of said
compensation, will be a condition precedent to the closing of such financing or
acquisition, and Company shall execute any and all documents necessary to effect
said compensation.
5.3 As further consideration to Consultant, Company, or its nominees,
agrees to pay with respect to any financing or acquisition candidate provided
directly or indirectly to the Company by any lender or equity purchaser covered
by this Section 5 during the period of one year from the date of this Agreement,
a fee to Consultant equal to that outlined in Section 5 herein.
5.4 Consultant will notify Company of introductions it makes for
potential sources of financing or acquisitions in a timely manner (within
approximately 3 days of introduction) via facsimile memo. If Company has a
preexisting relationship with such nominee and believes such party should be
excluded from this Agreement, then Company will notify Consultant immediately
within twenty-four (24) hours of Consultant's facsimile to Company of such
circumstance via facsimile memo.
6. Expenses. Consultant agrees to pay for all its expenses (phone, mailing,
labor, etc.), other than extraordinary items (travel required by/or specifically
requested by the Company, luncheons or dinners to large groups of investment
professionals, mass faxing to a sizable percentage of the Company's
constituents, investor conference calls, print advertisements in publications,
etc.) approved by the Company prior to its incurring an obligation for
reimbursement.
7. Indemnification. The Company warrants and represents that all oral
communications, written documents or materials furnished to Consultant by the
Company with respect to financial affairs, operations, profitability and
strategic planning of the Company are accurate and Consultant may rely upon the
accuracy thereof without independent investigation. The Company will protect,
indemnify and hold harmless Consultant against any claims or litigation
including any damages, liability, cost and reasonable attorney's fees as
incurred with respect thereto resulting from Consultant's communication or
dissemination of any said information, documents or materials excluding any such
claims or litigation resulting from Consultant's communication or dissemination
of information not provided or authorized by the Company.
8. Representations. Consultant represents that it is not required to maintain
any licenses and registrations under federal or any state regulations necessary
to perform the services set forth herein. Consultant acknowledges that, to the
best of its knowledge, the performance of the services set forth under this
Agreement 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 laws. Consultant further acknowledges that it is not a securities
Broker Dealer or a registered investment advisor. 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. Company acknowledges
that, to the best of its knowledge, Company is not the subject of any
investigation, claim, decree or judgment involving any violation of the SEC or
securities laws.
9. Legal Representation. The Company acknowledges that it has been represented
by independent legal counsel in the preparation of this Agreement. Consultant
represents that it has consulted with independent legal counsel and/or tax,
financial and business advisors, to the extent the Consultant deemed necessary.
10. Status as Independent Contractor. Consultant's engagement pursuant to this
Agreement shall be as independent contractor, and not as an 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 or the Consultant possess the authority to bind
each other in any agreements without the express written consent of the entity
to be bound.
11. Attorney's Fee. If any legal action or any arbitration or other proceeding
is brought for the enforcement or interpretation of this Agreement, or because
of an 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 attorneys' fees and other costs in connection
with that action or proceeding, in addition to any other relief to which it or
they may be entitled.
12. Waiver. The waiver by either party of a breach of any provision of this
Agreement by the other party shall not operate or be construed as a waiver of
any subsequent breach by such other party.
13. Notices. All notices, requests, and other communications hereunder shall be
deemed to be duly given if sent by U.S. mail, postage prepaid, addressed to the
other party at the address as set forth herein below:
To the Company:
XxxxxXxxxxx.xxx
Xxxx Xxxxxx
President
00-0 Xxx 00 Xxxxx, XXX 000
Xxxx Xxxxxx, XX 00000
To the Consultant:
Liviakis Financial Communications, Inc.
Xxxx X. Xxxxxxxx, President
000 Xxxxxx Xxxxxx
Xxxx Xxxxxx, XX 00000
With a copy to:
Xxxxxxxxx & Falconer LLP
Xxxxx Xxxxxxxx
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000-0000
It is understood that either party may change the 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 paragraph.
14. Choice of Law, Jurisdiction and Venue. This Agreement shall be governed by,
construed and enforced in accordance with the laws of the State of California.
The parties agree that San Francisco County, CA. will be the venue of any
dispute and will have jurisdiction over all parties.
15. Arbitration. Any controversy or claim arising out of or relating 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
California, 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 as
provided by Paragraph 14 herein. The provisions of Title 9 of Part 3 of the
California Code of Civil Procedure, including section 1283.05, and successor
statutes, permitting expanded discovery proceedings shall be applicable to all
disputes that are arbitrated under this paragraph.
16. Complete Agreement. This Agreement contains the entire agreement 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:
"Company"
Date: By: _____________________________
(Name), Its
"Consultant" LIVIAKIS FINANCIAL COMMUNICATIONS, INC.
Date: 2/26/00 By:______________________________
Xxxx X. Xxxxxxxx, President
