[Exhibit 10.8]
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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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(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
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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
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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
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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
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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
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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
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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
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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.
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(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
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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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Xxxxxx X. Xxxx, 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
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Agreement 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
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rendered 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
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entire 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
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other 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.
Arbitration, Inc.
By: /s/_________________________ By: /s/_________________________
Xxxxxx X. Xxxx, CEO Xxxxxx Xxxxxxxxx, CEO
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THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THEY MAY NOT BE
SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933, OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER
SUCH ACT OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SUCH ACT.
Warrant to Purchase Common Stock
Of Peer Review Mediation and Arbitration, Inc.
This Warrant is issued by Peer Review Mediation and Arbitration, Inc.,
a Florida corporation (the "Company") on July 28, 2004 to UniPro
Financial Services, Inc. (the "Holder"). This Warrant is issued as
partial consideration pursuant to the terms of that certain Consulting
Agreement dated as of the date hereof (the "Consulting Agreement") in
connection with the Company's retaining Holder as a non-exclusive
strategic business development Consultant.
1. Purchase of Shares. Subject to the terms and conditions hereinafter
set forth and compliance with applicable laws, the Holder is entitled,
upon surrender of this Warrant at the principal office of the Company
(or at such other place as the Company shall notify the Holder in
writing), to purchase from the Company up to 25,000 shares of fully
paid and non-assessable Common Stock of the Company, (the "Shares") at
a price per share of $6.00 (the "Exercise Price").
2. Exercise Period. This Warrant shall be exercisable, in whole or in
part during the three-year term commencing on the date hereof (the
"Effective Date") and ending at the close of business on the third
anniversary of the Effective Date.
3. Method of Exercise. While this Warrant remains outstanding and
exercisable in accordance with Section 2 above, the Holder may
exercise, in whole or in part, the purchase rights evidenced hereby.
Such exercise shall be effected by: (a) the surrender of the Warrant,
together with a duly executed copy of the form of Notice of Election
attached hereto, to the Secretary of the Company at its principal
offices; and (b) the payment to the Company of an amount equal to the
aggregate Exercise Price for the number of Shares being purchased.
4. Conversion. In lieu of exercising this Warrant pursuant to Section
3, the Holder may elect to convert this Warrant, without the payment
by the Holder of any additional consideration, into shares of Common
Stock equal to the value of this Warrant (or the portion hereof being
cancelled) by surrender of this Warrant to the Secretary of the
Company at its principal office together with notice of such election,
in which event the Company shall issue to the Holder a number of
shares of Common Stock computed using the following formula:
X = Y (A-B)
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A
Where: X = The number of shares of Common Stock to be issued to the
Holder pursuant to this conversion.
Y = The number of Shares in respect of which the election to
convert is made;
A = The fair market value of one share of the Common Stock at
the time the election to convert is made;
B = The exercise Price (as adjusted to the date of the conversion).
For purposes of this Section 4, the fair market value of one share of
Common Stock as of a particular day shall be determined by reference
to the average bid and ask price for Common Stock at the close of
trading over the five (5) immediately preceding days on which the
relevant market is open for trading.
5. Certificates for Shares. Upon the exercise of the purchase or
conversion rights evidenced by this Warrant, one or more certificates
for the number of Shares so purchased shall be issued as soon as
practicable thereafter (with appropriate restrictive legends, if
applicable), and in any event within twenty (20) days of the delivery
of the subscription notice.
6. Issuance of Shares. The Company covenants that the Shares, when
issued pursuant to the exercise of this Warrant, will be duly and
validly issued, fully paid and nonassessable and free from all taxes,
liens, and charges with respect to the issuance thereof other than
those created by or imposed upon Holder thereof through no action by
the Company.
7. No Fractional Shares or Scrip. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise or
conversion of this Warrant, but in lieu of such fractional shares the
Company shall make a cash payment therefore on the basis of the
Exercise Price then in effect.
8. No Stockholder Rights. Prior to exercise or conversion of this
Warrant, the Holder shall not be entitled to any rights of a
stockholder with respect to the Shares, including (without limitation)
the right to vote such Shares, receive dividends or other
distributions thereon, exercise preemptive rights or to be notified of
stockholder meetings, and the Holder shall not be entitled to any
notice or other communication concerning the business or affairs of
the Company. However, nothing in this Section 9 shall limit the right
of the Holder to be provided the notices required under this Warrant.
9. Transfer of Warrant. Subject to compliance with applicable federal
and state securities laws any other contractual restrictions between
the Company and the Holder, this Warrant and all rights hereunder are
transferable in whole or in part by the Holder to any person or entity
upon written notice to the Company. The transfer shall be recorded on
the books of the Company upon the surrender of this Warrant, properly
endorsed, to the company and its principal offices, and the payment to
the Company of all transfer taxes and other government charges imposed
on such transfer. In the event of a partial transfer, the Company
shall issue to the Holder one or more appropriate new warrants.
10. Successors and Assigns. The terms and provisions of this Warrant
shall inure to the benefit of, and be binding upon, the Company and
the Holder and their respective successors and assigns.
11. Amendments and Waivers. Any term of this Warrant may be amended
and the observance of any term of this Warrant may be waived (either
generally or in a particular instance and either retroactively or
prospectively), with the written consent of the Company and the
holders of a majority of shares of Common Stock issued or issuable
upon exercise of Warrants issued pursuant to the Purchase Agreement.
Any waiver or amendment effected in accordance with this Section 12
shall be binding upon each holder of any Shares purchased under this
Warrant at the time outstanding, each future holder of all such
Shares, and the Company.
12. Effect of Amendment or Waiver. The Holder acknowledges that by
the operation of Section 12 hereof, the holders of a majority of
shares of Common Stock issued or issuable upon exercise of Warrants
issued pursuant to the Purchase Agreement will have the right and
power to diminish or eliminate all rights of such Holder under this
Warrant.
13. Registration Rights. As provided in paragraph 2.4 of the
Consulting Agreement the Company hereby grants to Consultant one
"demand right" i.e., the right to request registration at the sole
expense of the Company, of the Restricted Shares and or the Warrant
Shares granted herein. Unless otherwise prevented from complying with
such request by reason of a lack of funds to effectuate same, the
Company will cause an appropriate registration as soon as may
reasonably be expected. The Company hereby 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 this Agreement's effective date.
14. Notices. All notices required under this Warrant shall be deemed
to have been given or made for all purposes (i) upon personal
delivery, (ii) upon confirmation receipt that the communication was
successfully sent to the applicable number if sent by facsimile; (iii)
one day after being sent, when sent by professional overnight courier
service, or (iv) five days after posting when sent by registered or
certified mail. Notices to the Company shall be sent to the principal
office of the Company (or at such other place as the Company shall
notify the Holder hereof in writing). Notices to the Holder shall be
sent to the address of the Holder on the books of the Company (or at
such other place as the Holder shall notify the Company hereof in
writing).
15. Attorneys' Fees. If any action of law or equity is necessary to
enforce or interpret the terms of this Warrant, the prevailing party
shall be entitled to its reasonable attorneys' fees, costs and
disbursements in addition to any other relief to which it may be
entitled.
16. Board Approval. The execution of this Warrant Agreement shall be
prima facie evidence that same has been duly authorized by appropriate
action of the Company's Board of Directors.
17. Captions. The section and subsection headings of this Warrant are
inserted for convenience only and shall not constitute a part of this
Warrant in construing or interpreting any provision hereof.
18. Governing Law. This Warrant shall be governed by the laws of the
State of Florida without regard to the usual and customary conflict of
laws, which may otherwise have been applicable, or the inconvenience
of the forum to the Company.
Peer Review Mediation and Arbitration, Inc.
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By: /s/_________________________
Xxxxxx X. Xxxx, CEO
