Ex. 10.7.2
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 Castlegate Group, Ltd. (the
"Consultant"), whose address is Xxxxx 0000x, Xxxxxxx Xxxxx, 00 Xxxxxxx Xxxx,
Xxxxxxx, Xxxx Xxxx.
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 (i) the Company's employee relations; and (ii) the Company's
marketing strategy; all 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 Effective Date. This Agreement shall commence ("Effective Date")
on the effective date of the Registration Statement (as defined in paragraph
2.1(b)).
1.2. Engagement. The Company hereby engages the Consultant to perform
the Services, as defined and set forth in paragraph 1.5, for the Term as
defined and set forth in paragraph 1.3, and the Consultant hereby
accepts this engagement, on the terms and subject to the conditions set forth
in this Agreement
1.3. 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").
1.4. 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.
1.5. 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 the Company's employee relations.
(b) Evaluate the Company's marketing strategy.
(c) Advise and consult with the Company's board of directors
(the "Board") and executive officers with respect to any of the
above described matters.
1.6. 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.
1.7. 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.
1.8. Location. The Company and the Consultant intend that the Services
shall be rendered primarily from the Consultant's offices in Wanchai, Hong
Kong 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 2.1 below to United States 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 of directors (the "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 United States federal income
taxation. The Consultant shall be reasonably available by telephone to consult
with the Board at regular and special meetings thereof.
1.9. 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 be 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.
1.10. 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.
1.11. 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 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,
on or immediately after the Effective Date, as a fee for its Services
under this Agreement (the "Consultant's Fee") 2,000,000 shares of
the Company's Common Stock (the "Shares"), which shall be fully earned
and non-refundable in consideration of its execution of this Agreement.
The Company shall issue the Shares registered in the name of Xxxx Xxxx,
the Consultant's sole director, executive officer and shareholder.
(b) In connection with the formation of a strategic plan for
2003, the Board intends to adopt a directors and officers stock option
and stock award plan (the "Plan"). The Company also intends to file a
registration statement on Form S-8 or other appropriate form (the
"Registration Statement") with the Securities and Exchange Commission
(the "SEC") that registers the issuance of shares of common stock,
preferred stock, options and warrants under the terms of the Plan. The
Shares issued by the Company as the Consultant's Fee shall be covered
by the Registration Statement and pursuant to and in accordance with
the Plan. The certificates representing the Shares 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 Shares, free and clear of any
legend, restriction or stop order, and deliver the shares, so
registered, to Consultant. The Company warrants that the Shares 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 Shares as well as the shares of common stock usable
upon their conversion.
(d) If the Company shall merge or consolidate with or into
another corporation for the purpose of changing the corporate domicile
("Reincorporation"), then, as a result of such Reincorporation,
the Company, or such successor, as the case may be, shall make lawful
and adequate provision whereby the holder of the Shares shall receive
the kind and amount of securities receivable immediately prior to such
consolidation or merger without the necessity of any further action on
the part of either the Company or the holder of the Shares.
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.
2.3. The Consultant's Expenses. Except for expenses incurred in
attending meetings of the Board as set forth in paragraph 1.7 above and 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) Power and Authority. The execution, delivery and performance
by the Company of this Agreement, including the issuance of the Shares
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 articles 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 Shares. The Shares are duly and validly authorized, and
when issued 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) Incorporation, Good Standing, and Due Qualification. The
Consultant is a corporation duly incorporated, validly existing and in good
standing under the laws of the jurisdiction of its incorporation; 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) Power and Authority. The execution, delivery and performance
by the Consultant of this Agreement, have been duly authorized by all
necessary corporate action and do not and will not (i) require any consent or
approval of the Consultant's stockholders; (ii) contravene the Consultant's
charter 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 Consultant; (iv) result in a breach of
or constitute a default under any agreement or other instrument to which the
Consultant is a party.
(c) Legally Enforceable Agreement. This Agreement is the legal,
valid and binding obligation of the Consultant, 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 Consultant is an accredited investor as defined in SEC
Rule 501(a).
(e) The Consultant has such knowledge and experience in financial
and business matters that it is capable of evaluating the merits and risks of
its election to receive the Consultant's Fee in the form of the Shares, rather
than in cash.
(f) Xxxx Xxxx, is the Consultant's sole director, officer and
shareholder.
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 its 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. 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 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 him 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 him or otherwise coming into his possession, and on termination of
his consultancy, 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 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 of Directors of the Company 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:
Castlegate Group, Ltd.
c/x Xxxxxxxx & Co.
00 Xxxxxxxx Xxxxxx
Xxxxxx X0X 0XX
Attn: Xxxxxx Xxxxxxxx
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 New York
sitting in City of New York, Xxxxxxxx of Manhattan (the "Manhattan 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 Manhattan 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 Manhattan Courts in any
Related Action, including any claim of forum non conveniens or that the
Manhattan 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 Manhattan 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 Manhattan 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.
Headings 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:
PARAMACO FINANCIAL GROUP INC.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------
Xxxxxxx X. Xxxxx, President
The Consultant:
CASTLEGATE GROUP, LTD.
By: /s/ Xxxx Xxxx
--------------------------
Xxxx Xxxx, Nominee Advisor
