Exhibit 10.8
CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") is made and entered into as of
this _____ day of April 2002 by and between AdZone Research, Inc. a Delaware
corporation ("AdZone", or the "Company") and NuQuest Consulting, Inc., a Nevada
corporation ("NuQuest", or the "Consultant").
RECITALS
WHEREAS, the Consultant has performed certain services for the Company and
the Company desires to compensate the Consultant for services performed and to
solidify the relationship between the parties from this point forward;
WHEREAS, the parties hereto have previously discussed the terms of a
consulting agreement and desire to finalize all discussions between them into
this Agreement;
WHEREAS, the Company wishes to engage the consulting services of the
Consultant; and
WHEREAS, the Consultant wishes to provide the Company with consulting
services.
NOW, THEREFORE, in consideration of the mutual promises herein contained,
the parties hereto hereby agree as follows:
1. CONSULTING SERVICES
The Company hereby authorizes, appoints and engages the Consultant to
perform the following services in accordance with the terms and conditions set
forth in this Agreement:
The Consultant will consult with the Company on its business plan,
financial statements, brochures, and other offering materials to be prepared in
anticipation of the obtainment of one, or more potential rounds of equity
financing, a public offering, and other issues pertaining to the Company's
common stock being traded on a United States exchange. Without limitation to the
generality of the foregoing, the Company agrees to provide to the Consultant and
the Consultant specifically agrees to:
a. Review all of the Company's books and records, sales materials,
business plans, financial statements, projections, and all other
materials reasonably necessary in the performance of its duties
hereunder;
b. Suggest and assist in the implementation of changes to any of the
above listed materials which will better position the Company to
obtain equity financing, including the structure of any private
placement which the Company undertakes;
c. Introduce the Company to reasonable sources of accounting, legal,
printing, financial statement preparation, public relations and other
professional services as needed;
d. Use reasonable best efforts to actively seek and identify potential
investors in the Company;
e. Assist the Company in identifying an NASD licensed
broker/dealer/market maker to assist the Company;
f. Assist the Company in taking each of the steps set forth on Exhibit A
attached hereto and made a part hereof;
g. Submit to the Company, when requested, complete and accurate reports
of the status of Consultants efforts, including negotiations,
discussions or searches for appropriate investors into the Company;
and
h. Assist the Company, at the Company's request, in the consummation of
any proposed financing.
i. Assist the Company, at the Company's request, in the establishment of
a marketing database for the Company's use in its marketing efforts.
2. TERM OF AGREEMENT
This Agreement, including all of its terms, conditions and exhibits, shall
be in full force and effect as of the date hereof through and including that
period which ends twelve (12) full months from the date of this Agreement. The
Company and the Consultant shall each have the right to terminate this Agreement
in the event of the bankruptcy, insolvency, or assignment for the benefit of
creditors of the other party. The Consultant and the Company shall each have the
right to terminate this Agreement during the first thirty (30) days (the "Due
Diligence Period") with, or without cause. The Consultant shall, after the Due
Diligence Period, have the right to terminate this Agreement if the Company
fails to comply with the terms of this Agreement, including without limitation
its responsibilities for compensation to the Consultant as set forth in this
Agreement. The Company shall, after the Due Diligence Period, have the right to
terminate this agreement if the Consultant fails to comply with the terms of
this Agreement.
3. COMPENSATION TO CONSULTANT
a. The Company shall issue to the Consultant warrants for 900,000 shares
of common stock of the fully diluted outstanding shares of the Company
as prescribed by the following schedule: Immediately upon signing this
Agreement, the Company shall issue to Consultant warrants for 300,000
shares. On the anniversary date beginning the second month of this
Agreement the Company shall issue to Consultant warrants for 300,000
shares. On the anniversary date beginning the third month of this
Agreement the Company shall issue to Consultant warrants for 300,000
shares.
These warrants shall be freely assignable, transferable and entitle
the Consultant to exercise said warrants on a cashless basis for a
period of two (2) years from the date of issuance of each warrant
package of 300,000 shares. The warrants shall have an exercise price
of $.15 (fifteen cents) per share and shall be exercisable by the
Consultant at such time as the shares of the Company's stock closes at
$.15 (fifteen cents), or higher on any trading day on the exchange
where the Company's shares are traded. The Company, upon the
Consultant's formal written request, shall immediately file an S-8
registration statement with the SEC in order to register the entire
900,000 shares underlying the warrants. Upon exercise of the warrants,
by the Consultant, the Company shall immediately issue and deliver to
the Consultant the registered, free trading common shares of the
Company's stock. The Company, in its sole discretion, may exercise any
number of warrants it chooses. Up to the actual total number of
warrants it has previously been issued.
b. In addition to the stock option compensation set forth above, the
Company shall pay the following cash fees, amounting to a total of
$33,000. These fees shall be paid to the Consultant according to the
following:
Upon signing this Agreement, the Company shall pay to the Consultant a
fee of $1,000 for the first month of this Agreement.
The Company shall pay to the Consultant a fee of $2,000 on the
anniversary date of this Agreement beginning the second month of the
Agreement.
The Company shall pay to the Consultant a fee of $3,000 on the
anniversary date beginning the third month and the anniversary of each
of the remaining nine (9) months of this Agreement.
c. Throughout this Agreement, all dollar figures expressed shall be
United States dollars.
4. REPRESENTATIONS AND WARRANTIES OF CONSULTANT
Consultant represents and warrants to and agrees with the Company that:
a. This Agreement has been duly authorized, executed and delivered by
Consultant. This Agreement constitutes the valid, legal and binding
obligation of Consultant, enforceable in accordance with its terms,
except as rights to indemnity hereunder may be limited by applicable
federal or state securities laws, and except as such enforceability
may be limited by bankruptcy, insolvency, reorganization or similar
laws affecting creditor's rights generally; and
b. The consummation of the transactions contemplated hereby will not
result in any breach of the terms, or conditions, or constitute a
default under any agreement, or other instrument to which Consultant
is a party, or violate any order, applicable to Consultant, of any
court or federal or state regulatory body or administrative agency
having jurisdiction over Consultant or over any of its property, and
will not conflict with or violate the terms of Consultant's current
employment.
c. During the course and in the context of any offering in connection
with the private placement, initial public offering, or otherwise, the
Consultant will not make any untrue statements of a material fact, or
omit to state a material fact necessary in order to make any statement
in light of the circumstance under which it is made, not misleading.
Further, the
Consultant hereby indemnifies the Company against any legal actions,
or any damages, or award resulting from the Consultant's making any
untrue statements of material fact, or omitting to state a material
fact.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents, warrants, covenants to and agrees with
Consultant that:
a. This Agreement has been duly authorized, and executed by the Company.
This Agreement constitutes the valid, legal and binding obligation of
the Company, enforceable in accordance with its terms, except as
rights to indemnity hereunder may be limited by applicable federal or
state securities laws, except in each case as such enforceability may
be limited by bankruptcy, insolvency, reorganization or similar laws
affecting creditor's rights generally.
b. During the course and in the context of any offering in connection
with a private placement, initial public offering, registration
statement, or otherwise, the Company will not make any untrue
statements of material fact, or omit to state a material fact
necessary in order to make any statement, in light of the circumstance
under which it is made, not misleading. Further, the Company hereby
indemnifies the Consultant against any legal actions, or any damages
or award resulting from the Consultant utilizing information or
documentation supplied by the Company.
c. There is not now pending, or to the knowledge of the Company,
threatened, any undisclosed action, suit or proceeding to which the
Company is a party before, or by any court or governmental agency, or
body which might result in a material adverse change in the financial
condition of the Company. The performance of this Agreement and the
consummation of the transactions contemplated hereby will not result
in a breach of the terms or conditions of, or constitute a default
under any statute, indenture, mortgage, or other material Agreement,
or instrument to which the Company is a party, or violate any order
applicable to the Company, or governmental agency having jurisdiction
over the Company, or over any of its property.
d. The parties hereto agree that the Company shall be responsible for any
and all costs and expenses reasonably incurred by Consultant in
performing his duties hereunder, including but not limited to
reasonable legal fees, printing costs, fees paid to third-party
professionals, etc. No expense to be reimbursed by the Company in
excess of $100 shall be incurred by the Consultant without prior
written approval of the Company.
e. The Company hereby agrees to pursue each of the steps and actions as
set forth on Exhibit A attached hereto and made a part hereof. The
Company acknowledges and agrees that by entering into this Agreement,
the Consultant incurs certain expenses or forgoes certain other
opportunities, the value of which cannot reasonably be measured. In
the event the Company decides not to pursue any of the steps and
actions as set forth on Exhibit A, all of the compensation set forth
in Section 3b of this Agreement shall become immediately due and
payable to the Consultant. The Consultant reserves the right to pursue
a cause of action against the Company to collect the full amount of
compensation set forth therein.
6. INDEPENDENT CONTRACTOR
Both the Company and the Consultant agree that the Consultant will act as
an independent contractor in the performance of his duties under this Agreement.
Nothing contained in this Agreement shall be construed to imply that Consultant,
or any employee, agent or other authorized representative of Consultant, is a
partner, joint venturer, agent, officer or employee of the Company. Neither
party hereto shall have any authority to bind the other in any respect vis a vis
any third party, it being intended that each shall remain an independent
contractor and responsible only for its own actions.
7. NOTICES
Any notice, request, demand, or other communication given pursuant to
the terms of this Agreement shall be deemed given upon delivery, if hand
delivered or sent via facsimile, or forty eight (48) hours after deposit
with a
courier for overnight delivery, correctly addressed to the addresses of the
parties indicated below or at such other address as such party shall in writing
have advised the other party.
If to the Company:
AdZone Research, Inc.
Attn: Xxxxxxx Xxxxxxx, CEO
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Facsimile (000) 000-0000
If to Consultant:
NuQuest Consulting, Inc.
Attn: Xxx Xxxxxxxx, President
0000 Xxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Facsimile (000) 000-0000
8. ASSIGNMENT
This contract shall inure to the benefit of the parties hereto, their
heirs, administrators and successors in interest. This Agreement shall not be
assignable by either party hereto without the prior written consent of the
other.
9. CHOICE OF LAW AND VENUE
This Agreement and the rights of the parties hereunder shall be governed by
and construed in accordance with the laws of the state of the defendant
including all matters of construction, validity, performance, and enforcement
and without giving effect to the principles of conflict of laws. Any legal
action brought by the Company against the Consultant shall be brought in the
State of Georgia, County of Xxxx and any action brought by the Consultant
against the Company shall be in the State of New York, County of Suffolk.
10. NONDISCLOSURE
Unless directed by a government agency, responsible regulatory agency, or a
court of competent jurisdiction over the parties, each party hereto agrees to
keep the terms of this Agreement and the transactions contemplated hereby as
confidential and shall not disclose such information to any third party, other
than professional advisors utilized to negotiate and consummate the transactions
contemplated hereby. The parties hereto agree that in the event there is a
breach of the foregoing confidentiality provision, the damage to the parties
hereto would be difficult to estimate and as a result, in the event of such a
breach, the non-breaching party, in addition to any and all other remedies
allowed by law, would be entitled to injunctive relief enjoining the actions of
the breaching party.
11. ENTIRE AGREEMENT
Except as provided herein, this Agreement, including exhibits, contains
the entire agreement of the parties, and supersedes all existing negotiations,
representations, or agreements and all other oral, written, or other
communications between them concerning the subject matter of this Agreement.
There are no representations, agreements, arrangements, or understandings, oral
or written, between and among the parties hereto relating to the subject matter
of this Agreement that are not fully expressed herein.
12. SEVERABILITY
If any provision of this Agreement is unenforceable, invalid, or violates
applicable law, such provision, or unenforceable portion of such provision,
shall be deemed stricken and shall not affect the enforceability of any other
provisions of this Agreement.
13. CAPTIONS
The captions in this Agreement are inserted only as a matter of convenience
and for reference and shall not be deemed to define, limit, enlarge, or describe
the scope of this Agreement or the relationship of the parties, and shall not
affect this Agreement or the construction of any provisions herein.
14. COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which shall together constitute one and
the same instrument.
15. MODIFICATION
No change, modification, addition, or amendment to this Agreement shall be
valid unless in writing and signed by all parties hereto.
16. ATTORNEYS FEES
Except as otherwise provided herein, if a dispute should arise between the
parties including, but not limited to arbitration, the prevailing party shall be
reimbursed by the non-prevailing party for all reasonable expenses incurred in
resolving such dispute, including reasonable attorneys' fees.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the Effective Date.
AdZone Research, Inc. NuQuest Consulting, Inc.
/S/Xxxxxxx Xxxxxxx /S/ Xxx Xxxxxxxx
---------------------------- -----------------------
By: Xxxxxxx Xxxxxxx By: Xxx Xxxxxxxx
Its: CEO Its: President
Exhibit A
The Company agrees to undertake, and Consultant agrees to use its best
efforts to assist the Company in undertaking, the following steps and actions:
1. Within ten (10) days of the date hereof, unless already retained, the
Company shall retain the services of securities counsel, acceptable to
both the Company and the Consultant.
2. The Company acknowledges and agrees that the Consultant will not begin
work until the date the Company signs this Agreement. Upon the
occurrence of this event, the Company shall begin incurring costs
associated with the Consultant's consultation services.
The Company and Consultant agree that the use of the Company's funds
raised through any private placement, other investment, loan, or
convertible debt, or preferred stock, or other offering shall be:
(i) to the Consultant as set forth in this Agreement;
(ii) the balance shall be available to the Company for general working
capital purposes at the discretion of its Board of Directors.
3. The Company will submit, if not already written and available, or
cause to be submitted to the Consultant, a Business Plan that details
the business, operations, financials, and projections of the Company,
including the acquired assets described above. If the Company desires
the Consultant's services in connection with the drafting of this
Business Plan, the Consultant shall be paid an additional fee of
$10,000 cash.
4. The Company shall provide all requested Due Diligence material or
information upon request by the Consultant.
5. If not already retained, the Company will have retained the services
of a financial investor relations firm, acceptable to the Company, and
Consultant, to provide services to the Company in connection with the
public trading of its securities.