Exhibit 10.4
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made and entered into
on this day of May, 2001 by and between Pathfinder International Group, Inc.
("the Consultant") whose business address is at 00 00xx Xxxxxx, Xxxxxxxxxx
Xxxxxxx, Xxx Xxxx 00000 and Pro Elite, Inc. (XXXX) (the "Client") whose
principal business is 000 Xxxxxx Xxxx, for the benefit of Pro Elite, Inc.
(XXXX) (state) NJ Corporation.
WHEREAS, the Consultant is willing and capable of providing various
consulting services, herein after defined, for Client and on behalf of XXXX; and
WHEREAS, the Client desires to retain the Consultant and the Consultant
desires to be retained in that capacity upon the terms and conditions herein
after set forth.
NOW, THEREFORE, in consideration of the mutual promises and Agreements
hereinafter set forth, the recipient and sufficiency of which are hereby
acknowledged, the parties hereto agree as fellows:
1. CONSULTING SERVICES. The Client hereby retains the Consultant for the
benefit of XXXX as an independent consultant to the Client for the benefit
of XXXX and the Consultant hereby accepts and agrees to such retention.
The Consultant shall render to the Client for the benefit of XXXX such
services as set forth in Exhibit A attached hereto and by reference
incorporated herein.
It is acknowledged and agreed by the Client that the Consultant is not
rendering legal advice or performing accounting services, nor acting as an
investment advisor or broker-dealer within the meaning of applicable state
and federal securities laws. The Consultant understands that the
consulting advisory services to be provided to the Client hereunder shall
not be rendered in connection with the offer and sale of securities in a
capital raising transaction.
It is further acknowledged that the entire objective of the service to be
performed by the Consultant is to gain exposure of the Client through an
informational campaign, and not to artificially inflate share prices,
trading volume or any other prohibited activity.
Consultant acknowledges that it is providing services hereunder as an
independent contractor. Accordingly, Consultant agrees that any taxes
associated with the performance of its services hereunder shall be its
sole responsibility. Consultant further agrees that nothing herein shall
create a relationship of partners or joint ventures between Consultant and
the Client and, except as otherwise set forth herein, nothing herein shall
be deemed to authorize Consultant to obligate or bind the Client to any
commitment without the prior written consent of the Client in each
instance.
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Consultant represents that it is knowledgeable of all applicable rules and
regulations of the Securities and Exchange Commission and the National
Association of Securities Dealers and will abide by and follow the same
with respect to all actions taken by Consultant in connection with this
Agreement.
2. TIME, PLACE AND MANNER OF PERFORMANCE. The Consultant shall be available
for advise and counsel to the Client regarding INVESTOR RELATIONS at such
reasonable and convenient times and places as may be mutually agreed upon.
Except as aforesaid, the time, place and manner of performance of the
services hereunder, including the amount of time to be allocated by the
Consultant to any specific service, shall be determined in the sole
discretion of the Consultant.
3. TERM OF AGREEMENT. The term of this Agreement shall commence on the date
hereof and the services outlined in Exhibit A shall be conducted for a
period of Three (3) months as identified in Exhibit B; Subject, however,
to prior termination as hereinafter provided.
4. COMPENSATION. In full consideration of the services to be provided for the
Client by the Consultant, as fully set forth in Exhibit B, upon execution
of this Agreement, the Client agrees to compensate Consultant in the
manner set forth on Exhibit B.
5. EXPENSES. Consultant shall be solely responsible for all expenses and
disbursements in connection with its performance under this Agreement,
except for those to be paid by Client as set forth in Exhibit B.
6. TERMINATION. Consultant shall have the right, in its sole and absolute
discretion, to terminate its obligations hereunder and to immediately
cease providing services pursuant to this agreement if Consultant, in the
exercise of its reasonable judgment, believes that the representations and
warranties made by Client hereunder are inaccurate in any material respect
or if Client breaches any of its covenants and agreements contained herein
or if any federal or state governmental agency or instrumentality
institutes an investigation or suit against Client or pertaining to the
services hereunder.
7. EARLY TERMINATION. In the event Client fails or refuses to cooperate with
Consultant, or fails or refuses to make timely payments of the
compensation set for above or in exhibit "B", the Consultant shall have
the right to terminate any further performance under this Agreement. In
the event, and upon notification thereof, compensation pursuant to
Schedule "B" or above, shall become immediately due and payable and/or
deliverable, and Consultant shall be entitled to receive and retain the
same as liquidated damages and not as a penalty, in lieu of all other
remedies the parties hereby acknowledged and agree that it would be too
difficult currently to determine the exact extent of Consultant's damages,
but that the receipt and the retention of such compensation is a
reasonable present estimate of such damage.
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8. CONFIDENTIALITY. The Consultant recognizes and acknowledges that it has
and shall have access to certain confidential information of the Client
and its affiliates (INCLUDING INSIDER INFORMATION) that is valuable,
special and unique assets and property of the Client and such affiliates.
The Consultant shall not, during or after the term of this Agreement,
disclose without the prior written consent or authorization of the Client,
any such material to any person, except to authorize representatives of
the Consultant or its affiliates for any reason or purposed whatsoever.
Consultant reports are not intended to be used in the offering of
securities. Accordingly, Client must agree to each of the points listed
below and to indemnify Consultant for any breach of these representations
and covenants.
I Client will immediately notify Consultant if it intends to
make any private or public offerings of securities, including
S-8 or Regulation S.
II Client will immediately notify Consultant in advance of any
insider selling of clients stock.
III Client will not use Consultant's report in connection with any
offering of securities without the prior written consent of
Consultant.
IV Client shall not issue any S-8 or Regulation S stock
certificates as compensation to Consultant.
A In that Consultant's shareholders, officers, employees and/or
members of their families may hold a position in and engage in
transactions with respect to Client securities, and in light of the
fact that Consultant imposes restrictions on such transactions to
guard against trading on the basis of non-public information Client
shall contemporaneously notify Consultant if any information or data
being supplied to Consultant has been generally released or
promulgated.
9. CONFLICT OF INTEREST. The Consultant shall be free to perform services for
other persons. Consultant shall notify the Client with respect to
Consultant's performance as it pertains to consulting services for any
other person or entity that potentially could conflict with Consultant's
obligations under this Agreement. Upon receiving such notice, the Client
may terminate this Agreement or consent to the Consultant's other
consulting activities.
10. REPRESENTATIONS OF THE CLIENT. The Client hereby represents that to the
best of its knowledge, all documents, news or other information produced
and distributed by the Client, or any person or entity acting on its
behalf, has been factual, complete and truthful. Further, the Client
represents that, to the best of its knowledge, neither it nor any person
or entity acting on its behalf, has knowingly, negligently or recklessly
distributed or produced information relating to the Client that violates
any local, state and federal law or statute. Further, the Client
represents that, to the best of its knowledge, all future information
provided by the Client, or any other person or entity acting on its
behalf, shall be factual, complete and truthful, and neither the Client or
any person or entity acting on its behalf, shall knowingly, negligently or
recklessly violate any local, state or federal law or statute.
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11. DISCLAIMER OF RESPONSIBILITY FOR ACTS OF THE CLIENT. The obligations of
the Consultant of services described in this Agreement consist solely of
the furnishing of information and advise to the Client and those services
identified in Exhibit A hereto. In no event shall the Consultant be
required by this Agreement to represent or make management decisions for
the Client. All final decisions with respect to acts and omissions of the
Client or any of its affiliates and/or subsidiaries, shall be those of the
Client or its affiliates, and Consultant shall under no circumstances be
liable for any expense incurred or loss suffered by the Client as a
consequence of such acts or omissions.
A Client representative shall provide the Consultant with factual
information pertaining to the Client. Any news relating to the Client
which was actually provided to Consultant by the Client, deemed untrue by
any regulatory body, is the SOLE responsibility of the Client, and the
Consultant is in no way liable for any misrepresentations made by the
Client and relied upon by the Consultant. All news articles or other
information written or spoken pertaining to Client shall be approved in
writing by the Client, prior to the dissemination thereof. As well, the
Consultant agrees not to misrepresent the Client.
The Consultant shall make every effort to fully disclose compensation, and
potential conflicts of interest to the public, in accordance with the
Securities Act of 1933, Section 17(b), which requires specific disclosure
about compensation for promotional services. The Consultant shall, as a
course of business, fully disclose its compensation, and insists that all
other related parties do so as well.
12. INDEMNITY. Client agrees to indemnify and hold harmless Consultant and its
affiliates from and against any and all losses, claims, damages and
liabilities, related to or arising out of any breach by Client of its
representations covenants or agreements made by Client herein. Consultant
agrees to indemnify and hold harmless Client and its affiliates from and
against any and all losses, claims, damages and liabilities, related to or
arising out of any breach by Consultant of its representations covenants
or agreements made by Consultant herein.
13. NOTICES. Any notices required or notices permitted to be given under this
Agreement shall be sufficient if in writing and delivered or sent by
registered or certified mail or overnight courier to the principal offices
of each party.
14. WAIVER OR BREACH. Any 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 any party.
15. ASSIGNMENT. This Agreement and the rights and obligations of the
Consultant hereunder shall not be assignable without the written consent
of the Client.
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16. APPLICABLE LAW. It is the intention of the parties hereto that this
Agreement and the performance hereunder and all suits and special
proceeding hereunder be construed in accordance with and under and
pursuant to the laws of the State of New York and in the event of any
action, special proceeding or other proceedings that may be brought
arising out of or in connection with this Agreement, including the
performance of this Agreement shall be brought only in a court of
competent jurisdiction within the State of New York.
17. SEVERABILITY. All Agreements and covenants contained herein are severable,
and in the event any of them shall be held to be invalid by any competent
court, the Agreement shall be interpreted as if such invalid Agreement or
covenants were not contained herein.
18. ENTIRE AGREEMENT. This Agreement constitutes and embodies the entire
understanding between the parties and supercedes and replaces all prior
understandings, agreements and negotiations between the parties.
19. WAIVER AND MODIFICATIONS. Any waiver, alteration or modification of any of
the provisions of this Agreement shall be valid only if made in writing
and signed by the parties hereto. Each party hereto, from time to time,
may waive any of its rights hereunder without affecting a waiver with
respect to any subsequent occurrences or transactions hereof.
20. ATTORNEYS' FEES AND COSTS. In the event of any dispute arising out of the
subject matter of this Agreement, the prevailing party shall recover, in
addition to any damages assessed, its attorney's fees and court costs
incurred in litigating or otherwise settling or resolving such a dispute.
In construing this Agreement, none of the parties hereto shall have any
term or provision construed against such party solely by reason of such
party having drafted the same.
2l. COUNTERPARTS AND FACSIMILE SIGNATURES. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed
an original, but all of which taken together shall constitute one and the
same instrument. Execution and delivery of this Agreement by exchange of
facsimile copies bearing the facsimile signature of the party hereto shall
constitute a valid and binding execution and delivery of this Agreement by
such party. Facsimile copies shall constitute enforceable original
documents.
IN WITNESS WHEREOF, the parties hereto have dually executed and delivered
this Agreement as of the day and year first above written.
CLIENT: Pro Elite, Inc. CONSULTANT: Pathfinder International Group, Inc.
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BY: /s/ Xxx Xxxxxx BY:
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DATE: 9/20/01 DATE:
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Exhibit A
WITNESSTH:
CONSULTANT SERVICES
WHEREAS: Consultant agrees to perform the following designated by X Services:
WHEREAS: Consultant has the authority to strategically provide services at
Consultants Professional discretion.
X 1. One informational website for a period of ( ) months
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The Websites shall provide:
Comprehensive overview of Client Company
Company management
Pending or late breaking news
X 2. EMail Client information to all existing subscribers
---
X 3. Broker Contact / Market Maker Contact
---
Implement a telephone and facsimile contact program to financial brokers
and market makers
X 4. News releases, includes broadcast fax to all interested parties.
---
X 5. Lead generation programs reaching thousands of investors.
---
X 6. Broker Sheets
---
This is a concise brief information piece primarily used to brokers to
help explain the company to their clients.
X 7. Research report
---
This is a four-page research report describing in detail the particulars
of the Client Company.
8. Road Shows
---
Sample cities may include major market areas to include but not limited
to New York, Chicago, Philadelphia, Los Angeles, San Diego, and San
Francisco. We will reach approximately 300 to 350 brokers, fund managers
and financial advisors.
X 9. Other Services
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HELP FORMULATE AN EFFECTIVE CAPITAL RAISE PROGRAM WITH A TARGET OF
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$150,000 - $200,000.
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EXHIBIT B
COMPENSATION. The Client agrees to pay Pathfinder the sum of $ 120,000.00
Using 266,666 of free trading Common Stock in Client ("the shares") and
133,331 of 144 stock. Shares shall be duly and validly issued, fully paid
and non-assessable and shall not be issued in violation of any
pre-emptive right of any stockholders of Client. The shares shall be
issued in compliance with the exemption from the registration requirements
of the Securities Act of 1933 ("the Act") provide by section 4 (2) of the
Act and/or pursuant to Rules 505 and 506 of the General Rules and
Regulations under the Securities Act of 1933.
If compensation is paid in shares, concurrently with the issuance of the
Shares, Client will execute and deliver the Registration Rights Agreement
attached hereto under which the Client agrees to register the Shares for
sale in compliance with the Act as therein provided and to comply with all
conditions necessary or required to enable the Shares to be sold pursuant
to Rule 144 of the General Rules and Regulations under the Securities Act
of 1933. The 266,666 shares shall be turned over to Pathfinder at the time
of the signing of this agreement. The balance of the 133,333 144 stock
shall be tendered to Pathfinder within 30 days of the signing of this
contract.
Should the Company affect payment of this Agreement by the tender of
free-trading Client shares belonging to individuals, the Client assures
and guarantees Pathfinder that the Client will not reimburse the
individuals for shares given Pathfinder.
The shares, if any to be issued to Pathfinder shall be approved for
issuance with the rules and regulations of any stock exchange on which the
shares are listed for trading or by the NASDAQ if the shares are listed
for trading thereon and shall be issued in compliance with the appropriate
federal or state governmental rules and regulations.
Client acknowledges that the consideration to be paid to Pathfinder shall
be fully earned on the date that Pathfinder commences providing services
under the agreement regardless of whether the agreement is terminated as
provided in the agreement prior to completion of all services,
Client agrees to pay or reimburse Pathfinder for all expense arising out
of or related to the provision of services by Pathfinder under the
agreement to the extent provided in the Agreement.
All monies payable hereunder shall be in U.S. funds and drawn on U.S.
Banks. The parties acknowledge in negotiating the fee they recognize that
the services will probably not be delivered in equal monthly segments, but
may be substantial during the earlier portion of the terms and less
thereafter as relationships and communication lines are established. Thus
part of the compensation for earlier services will be deferred and
therefore any lessening of services shall not constitute a breach or
termination hereof and the level fee shall continue.
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The services are being performed for Client PRO ELITE. Representation is
hereby made by Client PRO ELITE that it is a non-controlling party.
CONSULTING SERVICES 1-6 or 1-8 above are the only service
combinations.
PLEASE INDICATE WITH AN "X" XXXX THE SERVICES YOU WISH TO BE
PERFORMED:
X Fee is for services 1-6
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Fee is for services 1-8
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