Exhibit 10.8(a)
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement"), dated as of July 28, 2004 (the
"Effective Date"), is by and between Peer Review Mediation and Arbitration,
Inc., a Florida corporation (the "Company"), and UniPro Financial Services,
Inc., a Florida corporation (the "Consultant").
WHEREAS, the Company desires to enter into a non-exclusive relationship
with Consultant pursuant to which Consultant will provide a variety of
strategic business consulting services to the Company; and Consultant is
willing to provide such services to the Company;
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth below, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Services to be Provided.
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1.1 Services. During the term of this Agreement, Consultant will provide
various strategic business and related consulting services to the Company.
The consulting services will include but not be limited to advising senior
management of the Company on business development strategies,
commercialization and application of the Company's technologies, strategic
financial matters relating to the Company's financing activities, and
strategic business alliances. At all times during the term of this
Agreement, Consultant's personnel (one or more of UniPro's officers,
advisors, employees and or sub-contractors) will be reasonably available
(in person, by telephone or by e-mail) to senior management for such
consulting services.
1.2 Consultant's Other Business Activities. The Company acknowledges that
Consultant's duties to the Company hereunder do not constitute the sole
business activity of Consultant. Subject to Consultant's confidentiality
and non-disclosure obligations set forth in Section 4 hereof, nothing in
this Agreement or in the scope of the obligations of Consultant pursuant
hereto shall be deemed or construed to limit or restrict in any way the
right of Consultant to engage in providing its various services to any
other business entity. Without the express written consent of the Company
the Consultant shall not perform the same services for any other public
entity that is engaged in competition with the active business of the
Company, whether directly or indirectly.
1.3 Effect of Consultant's Temporary NonPerformance. Consultant shall not
be liable for loss or damage resulting from any delay or temporary non-
performance; nor shall it be held in breach hereof in the event that
Consultant's personnel are temporarily unable to provide consulting
services hereunder by reasons beyond the direct and reasonable control of
the Consultant.
2. Compensation and Expense Reimbursement.
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2.1 Cash. The Company shall render payment in the sum of $1,000 on signing
this Agreement; and a like payment on the 5th day of September, 2004 and the
5th day of each month thereafter for the duration of this Agreement.
In the event that Consultant is requested to assist the Company's
professional advisors in the preparation of any original documentation for
submission to the Securities and Exchange Commission, an additional cash
fee of $20,000 shall be due and payable no later than 30 days from the
effective date of any such filings.
2.2 Stock. Upon the execution of this Agreement, the Company shall issue
and deliver to Consultant, within ten (10) days, a certificate representing
10,000 restricted shares ("Restricted Shares") of the Company's common
stock. The auditor for UniPro shall establish the value of the restricted
shares for the purpose of this transaction.
2.3 Warrant. In consideration of the execution and delivery of this
Agreement by Consultant, upon execution hereof the Company will issue and
deliver to Consultant a Common Stock Purchase Warrant granting Consultant
the right during a three year period, to purchase up to 25,000 shares of
the Company's common stock (the "Warrant Shares") at an exercise price of
$6.00 per share (the "Warrant").
2.4 Registration Rights. The Company hereby agrees to include the stated
shares in the first registration statement it hereafter files with the
Securities and Exchange Commission, if any. In the event that the Company's
initial registration is underwritten by a third party "investment bank",
the inclusion of the aforesaid shares shall require the consent of the
investment bank. If such consent is not forthcoming, the Company undertakes
to "piggyback" the Restricted Shares and the Warrant Shares in the first
applicable registration (other than registrations on Form S-8) that it
undertakes subsequent to its initial underwritten registration.
2.5 Reimbursable Expenses. The Company shall reimburse Consultant in
accordance with the Company's travel expense policy for reasonable travel
and entertainment expenses incurred in the event that Consultant is
required to meet in person with the Company's executives at the Company's
offices. Such expenses shall include but not limited to reimbursement for
first-class airfare, hotel, meals, vehicle rental and such other non-travel
and entertainment expenses as may be approved in advance by the Company
("Reimbursable Expenses").
2.6 Subsidiaries. In the event that the Consultant renders services to
one or more of the Company's subsidiaries which involves a "spin-off" of
shares of that subsidiary, prior to such action, the Consultant and the
said subsidiary shall enter into an agreement containing provisions similar
in effect to those herein, including compensation.
3. Term and Termination.
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3.1 Term. This Agreement shall commence immediately upon its execution,
(the "Effective Date") and shall remain in effect until the close of
business on the third anniversary of said Effective Date, unless extended
pursuant to Section 3.2 or terminated pursuant to Section 3.3.
3.2 Renewal. This Agreement will not be subject to any implied or
automatic renewals, and any relationship between the parties after the term
hereof will be the subject of a new agreement. The parties may extend the
term or any subsequent term of this Agreement by executing a separate
written agreement of extension.
3.3 Termination.
(a) The Company may terminate this Agreement for cause upon thirty days
written notice to Consultant.
(b) This Agreement shall terminate in the event Consultant ceases business
operations, for any reason.
(c) Upon termination of this Agreement by the Company pursuant to
Section 3.3(a) or by Consultant pursuant to Section 3.3(b), Consultant
shall have no further obligation to provide consulting services to the
Company and, except as otherwise provided for in Section 12 hereof, shall
have no liability to the Company with respect thereto.
4. Confidential Information.
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In the course of providing services to the Company under this Agreement,
Consultant will be exposed to the Company's confidential and proprietary
information. Consultant's use of all such Confidential Information (as
defined below) of the Company shall be in accordance with this Section 4.
4.1 Definition of Confidential Information. "Confidential Information"
shall mean any trade secret of the Company or other information relating to
the Company, its business or operations (including, but not limited to, any
and all pricing, customer, business, financial or technical information,
studies, rules, data or analyses, design specifications, and research and
development plans), that is disclosed to Consultant by the Company (whether
disclosed orally, in writing, or in electronic or other form) during the
term of this Agreement. Confidential Information shall not include
information that: (i) was generally known to the public as of the Effective
Date; (ii) becomes generally known to the public after the Effective Date
other than as a result of the act or omission of Consultant; (iii) was
known to Consultant, without restriction on disclosure, prior to the
disclosure thereof by the Company, as demonstrated by contemporaneous
written evidence of such prior knowledge; (iv) is disclosed to Consultant
by a third party without breach thereby of any confidentiality or non-
disclosure obligation to the Company; or (v) is required to be disclosed by
statute, regulation, court order, subpoena, request for production of
documents, administrative order or other process of law; provided, however,
that prior to disclosure under (v) above, Consultant shall notify the
Company of the required disclosure, allow the Company adequate opportunity
to seek, at the Company's expense, an appropriate protective order,
injunction, or waiver of compliance, and disclose only such information as
is necessary to comply with the required disclosure.
4.2 Ownership of Confidential Information. The Company shall retain all
right, title and interest to the Confidential Information, and disclosure
thereof by the Company to Consultant shall not be deemed to grant to
Consultant any license or right to use the Confidential Information except
incidentally in connection with providing services to the Company
hereunder.
4.3 Non-Disclosure Obligation. Consultant acknowledges the competitive
value and confidential nature of the Confidential Information and the
damage that could result to the Company if the Confidential Information is
disclosed to any third party. Consultant agrees to keep the Confidential
Information confidential, to use the Confidential Information solely for
the purpose of providing services to the Company as contemplated by this
Agreement, and not to use the Confidential Information for Consultant's own
purposes or in any manner detrimental to the Company.
4.4 Security Measures. Consultant shall protect the Confidential
Information with security safeguards at least as great as those to which
Consultant accords to its own confidential business information. Consultant
may disclose Confidential Information to Consultant's agents and employees
on a need-to-know basis, provided that Consultant has first executed
appropriate written agreements with such agents sufficient to enable
Consultant to comply with this Section 4.
4.5 Remedy for Breach. It is understood and agreed that breach of this
Section 4 by Consultant would cause irreparable harm to the Company and
that money damages would be an inadequate remedy for any such breach. The
Company shall be entitled to injunctive or other equitable relief as a
remedy for any such breach or threatened breach. Consultant agrees to waive
any requirement that the Company be required to post a bond or other
security for the granting of any equitable relief. No failure or delay in
exercising any right, power or privilege under this Section 4 shall operate
as a waiver thereof, nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any
right, power or privilege hereunder.
4.6 Post-Termination Obligation. Not later than thirty (30) days after
the expiration of this Agreement or upon termination hereof, Consultant
shall return to the Company all tangible embodiments of Confidential
Information in Consultant's care, custody or control.
5. Indemnification and Relationship of the Parties.
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5.1 Limitation of Liability and Indemnification. Each party hereto shall
indemnify and hold the other harmless for losses resulting from and to the
extent of its own willful misconduct or gross negligence arising from or
incident to the performance of services contemplated by this Agreement.
Neither the Company nor Consultant shall be responsible for any incidental,
indirect, consequential, punitive or special damages (including loss of
profits or business interruption) sustained by the other.
5.2 Damages for Failure to Provide Consulting Services.
(a) If, during the term of this Agreement, the Consultant fails to provide
the intended services (in person, by telephone or by e-mail) to senior
management of the Company from time to time upon reasonable advance notice,
then the Company shall be entitled to notify Consultant of such failure to
perform hereunder and terminate the Agreement, as herein provided.
(b) In the event of termination for cause, the Company shall render
payment in full for actual services performed on a pro-rata basis, and any
remaining Warrants shall be reduced in quantity on a pro-rata basis.
5.3 Relationship of Parties. The Company and Consultant agree that
Consultant shall perform services hereunder as an independent contractor
and that Consultant shall retain control over and responsibility for its
own operations and personnel. Nothing herein shall create any partnership,
agency, employment or similar relationship between the parties. Consultant
will not, by reason of this Agreement, be entitled to participate in
workers' compensation, retirement, insurance or any benefit under any
Company benefit or other employee plan. The Company will not withhold or
pay any income or payroll taxes on behalf of Consultant. Neither party, nor
their principals or employees, shall have authority to contract in the name
of or bind the other, except as expressly agreed to in writing by the
parties.
6. Conflict of Interest. The parties specifically acknowledge that ▇▇▇▇▇▇
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▇. ▇▇▇▇, CEO and control shareholder of the Company is a consultant to
UniPro with regard to other business situations.
7. Publicity.
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Consultant shall permit the Company to use its name in press releases
announcing the relationship subject to Consultant's prior review and
approval of the text of any proposed press release.
8. Notices.
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All notices, requests, and other communications hereunder shall be deemed
to be duly given if hand delivered or sent by overnight courier with
guaranteed next day delivery, by confirmed facsimile transmission, or by
U.S. mail, postage prepaid, return receipt requested, addressed to the
other party at the address as set forth below: Any notice or other
communication hereunder shall be effective upon actual delivery. Either
party may change the address or facsimile number to which notices for such
party shall be addressed by providing notice of such change to the other
party in the manner set forth in this Section 7.
9. Applicable Law and Forum.
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The laws of the State of Florida shall govern this Agreement, without
giving effect to its conflicts of law rules. Jurisdiction and venue for any
action or proceeding hereunder shall lie in the state and federal courts
located in Palm Beach or Broward Counties. The parties expressly agree that
all claims in respect of any such action or proceeding may be heard and
determined in any such court and the Company waives any defense of
inconvenient forum to the maintenance of any action or proceeding so
brought.
10. Severability.
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If one or more provisions of this Agreement are held to be unenforceable
under applicable law, such provision shall be excluded from this Agreement
and the balance of the Agreement shall be interpreted as if such provision
were so excluded and shall be enforceable in accordance with its terms.
11. Waiver and Remedies. No waiver of any term or condition of this
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Agreement shall be effective unless set forth in a written instrument duly
executed by or on behalf of the party waiving such term or condition. No
waiver by any party of any term or condition of this Agreement, in any one
or more instances, shall be deemed to be or construed as a waiver of the
same or any other term or condition of this Agreement on any future
occasion. All remedies, either under this Agreement, by law or otherwise
afforded, will be cumulative and not alternative.
12. No Third Party Beneficiary. The terms and provisions of this Agreement
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are intended solely for the benefit of the parties hereto and their
respective successors or permitted assigns, and it is not the intention of
the parties to confer third-party beneficiary rights upon any other person
or entity.
13. Survival. All provisions hereof that by their nature require
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performance subsequent to the termination of the Agreement shall survive
expiration or termination of this Agreement.
14. Attorneys' Fees. If any legal action or any arbitration or other
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proceeding is brought for the enforcement or interpretation of this
Agreement, the Warrant, or the Registration Rights Agreement, or because of
an alleged dispute, breach, default or misrepresentation in connection with
or related to this Agreement, the Warrant, or the Registration Rights
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 a party may be
entitled, including those incurred on appeal or in bankruptcy proceedings.
15. Assignment. Consultant acknowledges that the services to be rendered
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are unique and may not be assigned by Consultant without the prior written
consent of the Company. This Agreement will inure to the benefit of and be
binding upon the parties and their permitted assigns and successors.
16. Entire Agreement and Amendments. This Agreement contains the entire
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agreement of the parties relating to the subject matter hereof. This
Agreement shall terminate and supersede any prior written or oral
agreements or understandings between the parties regarding the subject
matter hereof. Any amendments or modifications to this Agreement must be in
writing and executed by the party against whom enforcement is sought.
17. Approvals. The parties may rely upon the execution hereof by the other
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party as evidence that their respective boards of directors have consented
hereto by appropriate resolution.
18. Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute the same instrument. Signatures delivered by
electronic facsimile transmission shall be deemed originals.
IN WITNESS WHEREOF, each of the parties has duly executed this Agreement as
of the date above written.
Peer Review Mediation and UniPro Financial Services, Inc.
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Arbitration, Inc.
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By:___/s/ ▇▇▇▇▇▇ ▇. Hale_______ By:___/s/_Harvey Judkowitz_____
▇▇▇▇▇▇ ▇. ▇▇▇▇, CEO ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, CEO
