EX-10.7
CONSULTING SERVICES AGREEMENT
Agreement made as of October 25, 2001 by and between Freestar
Technologies, a Nevada corporation, 00000 Xxxxxxx Xxxx., Xxxxxx, XX
00000 ("Contractor") and Xxxxxxxxx Xxxxx with an address at Xxxxx
Xxxxxxxx Xxxxxxx, Nagua, Cabrera , Dominican Republic ("Contractee").
WITNESSETH
Whereas, Contractor requires expertise in the area of public corporate
marketing consulting to support it's business and growth; and
Whereas, Contractee has substantial contacts among the members of the
investment community , media , distribution channels , wholesale and
retail outlets , the leisure and entertainment industry , to act as a
consultant to provide sales and marketing consulting services.
Now, therefore, In consideration of the premises and the mutual
promises and covenants contained herein and subject specifically
thereby, the parties agree as follows:
1. Certain Definitions. When used in this Agreement, the
following terms shall have the meanings set forth below:
1.1 Affiliate-any person or entities controlled by a party.
1.2 Contractor-the Contractor who uses the services of Contractee.
1.3 Contractor Clients-the Contractor's clients who
use the services of Contractee through the Contractor.
1.4 Contact Person-the person who shall be primarily
responsible for carrying out the duties of the parties hereunder.
Contractor and Contractee shall each appoint a Contact Person to
be responsible for their respective duties. In the event that
one party gives notice to the other party in writing that in
their reasonable opinion, the other party's Contact Person is not
able to fulfill their duties and responsibilities hereunder, both
parties shall mutually agree upon a replacement Contact Person
within ten (10) days of said notice.
1.5 Extraordinary Expenses-expenses that are beyond
those expenses that are usual, regular, or customary in the
conduct of the in-house activities in fulfillment of the scope of
the Agreement.
1.6 Equity-cash, securities or liquid assets, specifically excluding real
property.
1.7 Payment or Payable of Kind-distribution of the
proceeds of a transaction in the same type and form as was given
as valuable consideration for the transaction.
2. Contact Persons. The Contact Person for Contractor is Xxxx
Xxxx. The Contact Person for Contractee is America Xxxxxx
3. Services to be Rendered by Contractee. Services to be
rendered by Contractee are as follows:
3.1 Performance. The parties agree that performance of Contractee shall
not be based on the price of the stock and not to affect the price of the
stock. Contractor understands that Contractee has no control with regard
to the price of these securities.
3.2 Advice and Counsel. Contractee will provide
advice and counsel regarding Contractor's strategic business and
marketing plans, strategy and negotiations with potential,
clients/distributors , users\endusers ,candidates, joint
ventures, corporate partners and others involving sales and
marketing related transactions.
3.3 Introduction to the wholesale/retail Community.
Contractee has a close association with wholesale/retailers and
investment professionals across the country and will enable
contact between Contractor and\or Contractor Clients to
facilitate business transactions among them. Contractee shall
use their contacts in the wholesale/retail community to assist
Contractor in establishing relationships with sales and
distribution channels and to provide the most recent corporate
information to interested purchasers of the product on a regular
and continuous basis. Contractee understands that this is in
keeping with Contractor's business objective to establish a
nationwide network of sales and distribution dealers who have an
interest in Contractors product..
3.4 Market Intelligence. Contractee knows market
conditions and has access through it's network and Contractee
will monitor and react to sensitive market information on a
timely basis and provide advice, counsel and proprietary
intelligence (including but not limited to information on price
and volume) to Contractor in a timely fashion. .Contractor
understands that this information is available from other sources
but acknowledges that Contractee can provide it in a more timely
fashion and with substantial value-added interpretation of such
information. The foregoing notwithstanding, no information will
be provided to Contractor with respect to the activities of any
other Contractee customer's accounts without such customer's
prior consent.
3.5 Contractor and/or Contract Client Transaction
Due Diligence. Contractee will undertake due diligence on all
proposed financial transactions affecting the Contractor,
including investigation and advice on the financial, valuation
and price implications thereof.
3.6 Additional Duties. Contractor and Contractee
shall mutually agree upon any additional duties, which Contractee
may provide for compensation paid or payable by Contractor under
this Agreement. Such additional agreement(s) may, although there
is no requirement to do so, be attached hereto and made a part
hereof as Exhibits beginning with Exhibit "A".
3.7 Best Efforts. Contractee shall devote such time
and best efforts as may be reasonably necessary to perform its
services. Contractee is not responsible for the performance of
any services, which may be rendered hereunder without Contractor
providing the necessary information prior thereto. Contractee
cannot guarantee results on behalf of Contractor but shall pursue
all avenues available through its network of financial contacts.
At such time as an interest is expressed in Contractor's needs,
Contractee shall notify Contractor and advise it as to the source
of such interest and any terms and conditions of such interest.
The acceptance and consummation of any transaction is subject to
acceptance of the terms and conditions by Contractor. It is
understood that a portion of the compensation to be paid
hereunder is being paid by Contractor to have Contractee remain
available to assist it with transactions on an as-needed basis.
4. Compensation to Contractee.
4.1 Initial Fee. Contractor does agree to pay
Contractee an initial fee of five hundred thousand (500,000) free
trading shares of Freestar Technologies upon execution hereof
for Contractee's initial setup activities which are necessary for
Contractee to provide the services herein. Contractor and
Contractee, agree the aforementioned shares will be issued to
Contractee. Contractor and Contractee agree that the
aforementioned shares shall be issued to Contractee and the
underlying stock may be sold without any restrictions in order to
provide Contractee with the necessary capital to initiate its
program on behalf of Contractor.
4.2 Additional Fees. Contractor and Contractee
shall mutually agree upon any additional fees, which Contractor
may pay in the future for services rendered by Contractee under
this Agreement.
4.3 Extraordinary Expenses. Extraordinary expenses
of Contractee shall be submitted to Contractor for approval prior
to expenditure and shall be paid by Contractor within ten (10)
business days of receipt of Contractee's request for payment.
4.4 Finder Fees.
4.4.1 In the event Contractee introduces Contractor
or a Contractor affiliate to any third party funding
source(s), underwriter(s), or merger partner(s) which arrive
at a mutual funding, underwriting or merger agreement,
Contractor hereby agrees to pay Contractee an advisory fee
of five percent (5%) of the gross proceeds derived from such
funding, payable upon the consummation of such funding of
underwriting, even though the term of this Agreement may
have expired.
4.4.2 Contractor hereby directs and authorizes
funding source(s) or underwriter(s) to pay said advisory fee
directly, or to direct a third party escrow, if applicable,
to make payment directly to Contractee.
4.4.3 Contractee may, at its sole option, elect to
receive all or a portion of said advisory fee as payment in
kind, i.e., pro-rata in the same form and type of
securities, equity, or financing instruments issued to the
funding source or underwriter by Contractor. In the event
the exercise of this option results in additional expense
over and above the expenses of the funding and/or
underwriting then the additional expenses shall be borne by
Contractor. In addition, the exercise of this option by
Contractee shall not impede or otherwise have a negative
effect on the funding or underwriting.
4.5 Interest of Funds Due. Contractor shall pay
interest on all payments in arrears due Contractee at the rate of
ten percent (10%) per annum.
5. Indemnification. Each party shall hold the other party
harmless from and against, and shall indemnify the other party for,
any liability, loss and costs, and expenses or damages however caused
by reason of any injury (whether to body, property, personal or
business character, or reputation) sustained by any person or to any
person or property by reason of any act of neglect, default or
omission of it or any of its agents, employees, or other
representatives arising out of or in relation to this Agreement.
Nothing herein is intended to nor shall it relieve either party from
liability for its own act, omission or negligence. All remedies
provided by law or in equity shall be cumulative and not in the alternative.
6. Contractor Representations. Contractor hereby represents,
covenants and warrants to Contractee as follows:
6.1 Authorization. Contractor and its signatories
herein have full power and authority to enter into this Agreement
and to carry out the transactions contemplated hereby.
6.2 No Violation. Neither the execution and
delivery of this Agreement nor the consummation of the
transactions contemplated hereby will violate any provision of
the charter or by-laws of Contractor or violate, or be in
conflict with, or constitute a default under, any agreement or
commitment to which Contractor is a party, or violate any statute
or law or any judgment, decree, order, regulation or rule of any
court or government authority.
6.3 Agreement in Full Force and Effect. All
contracts, agreements, plans, leases, policies and licenses
referenced herein to which Contractor is a party are valid and in
full force and effect.
6.4 Litigation. Except as set forth below, there is
no action, suit, inquiry, proceeding or investigation by or
before any court of governmental or other regulatory or
administrative agency or commission pending or to the best
knowledge of Contractor threatened against or involving
Contractor, or which questions or challenges the validity of this
Agreement and its subject matter; and Contractor does not know or
have any reason to know if any valid basis for any such action,
proceeding or investigation exists.
6.5 Consents. No consent of any person, other than
the signatories hereto, is necessary to the consummation of the
transactions contemplated hereby including, without limitation,
consents from parties to loans, contracts, leases or other
agreements and consents from government agencies, whether
federal, state or local.
6.6 Contractee's Reliance. Contractee has and will
rely upon the documents, instruments and written information
furnished to Contractee by the Contractor's officers or
designated employees and:
6.6.1 Contractor Material. All representations and
statements provided about Contractor are true, complete and
accurate. Contractor agrees to indemnify, hold harmless, and
defend Contractee, its officers, directors, agents,
consultants and employees at Contractor's expense for any
proceeding or suit which may arise out of any inaccuracy or
incompleteness of any such material or written information
supplied to Contractee; and
6.6.2 Contractor Client and Other Material. All
representations and statements provided, other than about
Contractor, are to the best of its knowledge true, complete
and accurate.
7. Confidentiality. Contractee and Contractor each agree to
provide reasonable security measures to keep information confidential
whose release may be detrimental to the business. Contractee and
Contractor shall each require their employees, agents, affiliates,
subcontractors, other licenses, and others who will properly have
access to the information through Contractee and Contractor
respectively, to first enter into appropriate non-disclosure
agreements requiring the confidentiality contemplated by this
Agreement in perpetuity.
8. Miscellaneous Provisions.
8.1 Amendment and Modification. Subject to
applicable law, this Agreement may be amended, modified and
supplemented by written agreement of Contractee and Contractor or
by their duly authorized respective officers.
8.2 Waiver of Compliance. Any failure of Contractee
on the one hand, or Contractor on the other, to comply with any
obligation, agreement or condition herein may be expressly waived
in writing, but such waiver of failure to insist upon strict
compliance with such obligation, covenant, agreement or condition
shall not operate as a waiver of, or estoppel with respect to,
any subsequent or other failure.
8.3 Expenses: Transfer Taxes, Etc. Whether or not
the transaction contemplated by this Agreement shall be
consummated, Contractor agrees that all fees and expenses
incurred by Contractee in connection with this Agreement, shall
be borne by Contractor and Contractor agrees that all fees and
expenses incurred by Contractor in connection with this Agreement
shall be borne by Contractor, including, without limitation as to
Contractee or Contractor, all fees of counsel and accountants.
8.4 Other Business Opportunities. Except as
expressly provided in this Agreement, each party hereto shall
have the right independently to engage in and receive full
benefits from business activities.
8.5 Compliance with Regulatory Agencies. Each party
represents to the other party that all actions, direct or
indirect, taken by it and its respective agents, employees and
affiliates in connection with this Agreement and any financing or
underwriting hereunder shall conform to all applicable Federal
and State securities laws.
8.6 Notices. Any notices to be given hereunder by
any party to the other may be effected by personal delivery in
writing or by mail, registered or certified, postage prepaid with
return receipt requested. Mailed notices shall be addressed to
the parties at the addresses appearing in the introductory
paragraph of this Agreement, but any party may change their
address by written notice in accordance with this subsection.
Notices delivered personally shall be deemed communicated as of
actual receipt; mailed notices shall be deemed communicated as of
three (3) days after mailing.
8.7 Assignment. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and
permitted assigns, but neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by
Contractor without the prior written consent of Contractee,
except by operation of law.
8.8 Delegation. Neither party shall delegate the
performance of its duties under this Agreement without prior
written consent of the other party.
8.9 Publicity. Neither Contractee nor Contractor
shall make or issue, or cause to be made or issued, any
announcement or written statement concerning this Agreement or
the transactions contemplated hereby for dissemination to the
general public without the prior consent of the other party.
This provision shall not apply, however, to any announcement or
written statement required to be made by law or the regulations
of any Federal or State governmental agency, except that the
party required to make such announcement shall, whenever
practicable, consult with the other party concerning the timing
and consent of such announcement before such announcement is made.
8.10 Governing Law. This Agreement and the legal
relations among the parties hereto shall be governed and
construed in accordance with the laws of the State of California,
without regard to its conflict of law doctrine. Contractor and
Contractee agree that if action is instituted to enforce or
interpret any provision of this Agreement then jurisdiction and
venue shall be Los Angeles County, California.
8.11 Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall
be deemed an original, but of which together shall constitute one
and the same instrument.
8.12 Headings. The headings of the Sections of this
Agreement are inserted for convenience only and shall not
constitute a part hereto or affect in any way the meaning or
interpretation of this Agreement.
8.13 Entire Agreement. This Agreement, including any
Exhibits hereto, and any other documents and certificates
delivered pursuant to the terms hereof, set forth the entire
agreement and understanding of the parties hereto in respect to
the subject matter contained herein, and supersedes all prior
agreements, promises, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any
officer, employee or representative of any party hereto.
8.14 Third Parties. Except as specifically set forth or
referenced to herein, nothing herein expressed or implied is
intended or shall be construed to confer upon or give to any
person or corporation other than the parties hereto and their
successors or assigns, any rights or remedies under or by reason
of this Agreement.
8.15 Attorney's Fees and Costs. If any action is
necessary to enforce and collect upon the terms of this
Agreement, the prevailing party shall be entitled to reasonable
attorney's fees and costs, in addition to any other relief to
which that party may be entitled. This provision shall be
construed as applicable to the entire agreement.
8.16 Survivability. If any part of this Agreement is
found, or deemed by a court of competent jurisdiction, to be
invalid or unenforceable, that part shall be severable from the
remainder of this Agreement.
8.17 Further Assurance. Each of the parties agrees that
it shall from time to time take such actions and execute such
additional instruments as may be reasonably necessary or
convenient to implement and carry out the intent and purpose of
this Agreement.
8.18 Right to Data After Termination. After termination
of this Agreement each party shall be entitled to copies of all
information acquired hereunder as of the date of termination and
not previously furnished to it.
8.19 Relationships of the Parties. Nothing contained in
this Agreement shall be deemed to constitute either party the
partner of the other, nor, except as otherwise herein expressly
provided, to constitute either party the agent or legal
representative of the other, nor to create any fiduciary
relationship between them. It is not the intention of the
parties to create, nor shall this Agreement be construed to
create, any commercial nor other partnership. Neither party
shall have any authority to act for or to assume any obligation
or responsibility on behalf of the other party, except as
otherwise expressly provided herein. The rights, duties,
obligations and liabilities of the parties shall be severable and
not joint or collective. Each party hereto shall be responsible
only for its obligations as herein set out and shall be liable
only for its share of the costs and expenses as provided herein.
Each party shall indemnify, defend and hold harmless the other
party, its directors, officers, and employees, from and against
any and all losses, claims, damages and liabilities arising out
of any act or any assumption of liability by the indemnifying
party, or any of its directors, officers or employees, done or
undertaken, or apparently done or undertaken, on behalf of the
other party, except pursuant to the authority expressly granted
herein or otherwise agreed in writing between the parties. Each
party shall be responsible for the acts of its agents,
consultants and affiliates.
9. Terms of Agreement and Termination. This Agreement shall be
effective upon execution, and shall continue for one (1) year unless
terminated sooner, by either party, upon giving to the other party
thirty (30) days written notice, after which time this Agreement is
terminated. Contractee shall be entitled to any fees stipulated in
Exhibit "A", finders fees for funding or underwriting commitments
entered onto within two (2) years after the termination of this
Agreement if said fees for services, funding or underwriting was the
result of Contractee's efforts prior to the termination of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, all as of the day and year first above written.
Contractor: Freestar Technologies
Signature: /s/ Xxxx Xxxx
Xxxx Xxxx-President
Contractee: Xxxxxxxxx Xxxxx
Signature: /s/ Xxxxxxxxx Xxxxx
Xxxxxxxxx Xxxxx
