CONSULTING AGREEMENT
This consulting agreement (the "Consulting Agreement") made as of the
9th day of January 2003, by and between XXXXXXX XXXXX PARTNERS, INC. with an
office at 00 Xxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxx Xxxxxx 00000 ("PARTNERS") and
GOLD BOND RESOUCRES, INC., 00000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxx, Xxxxx
00000 ("GOBM").
WHEREAS, GOBM, is an energy technology company and through its wholly
owned subsidiary, ENERTECK CHEMICAL CORPORATION ("ENERTECK") has commercialized
a diesel fuel specific combustion catalyst; and
WHEREAS, GOBM is a publicly traded entity under the rules of the
NATIONAL ASSOCIATION OF SECURITIES DEALERS and trades on the OTC ELECTRONIC
BULLETIN BOARD; and
WHEREAS, GOBM requires certain financial and business development
services; and
WHEREAS, PARTNERS is engaged in the business of providing consulting
and business development services and is desirous of performing such services
for GOBM; and
WHEREAS, GOBM and PARTNERS desire to memorialize their relationship in
a written document; and
WHEREAS, the execution of this Agreement has been approved by the Board
of Directors of GOBM.
NOW THEREFORE IN CONSIDERATION OF THE MUTUAL COVENANTS HEREINAFTER
STATED, INTENDED TO BE LEGALLY BOUND, THE PARTIES HAVE AGREED AS FOLLOWS:
1. APPOINTMENT
GOBM hereby appoints PARTNERS as its non-exclusive consultant and
business development representative and hereby retains PARTNERS and PARTNERS
accepts such appointment and agrees to perform the services specified in a
competent, professional, and faithful manner upon the terms and conditions
hereinafter set forth.
2. TERM
The term of this Agreement shall commence upon the date hereof and
continue for five (5) years thereafter, subject to the right of either party
hereto to terminate this Agreement for any reason upon thirty (30) days written
notice to the other party.
3. SERVICES
(a) PARTNERS shall assist in establishing and advising GOBM with
respect to general business planning, development and implementation of such
plans and strategies including the development and expansion of GOBM's present
business and new business ventures;
(b) PARTNERS shall assist GOBM in analyzing present corporate financial
needs and possible future financing and advise GOBM with respect to capital
structure;
(c) PARTNERS shall seek to identify merger, acquisition, investment and
similar joint ventures and/or business combination candidates and assist GOBM in
the analysis and development of potential mergers, acquisitions, investments
and/or joint ventures which GOBM may consider, and assist in effecting and
completing same, if so directed;
(d) PARTNERS shall act, generally, as financial public relations
advisor, essentially acting as liaison between GOBM and its stockholders, as
advisor and liaison with respect to existing and potential market makers,
broker-dealers, underwriters and investors and as advisor with respect to the
planning, design, development, organization, writing and distribution of
communications and information, including but not limited to press releases,
shareholder reports, company profiles and other documents;
(e) PARTNERS shall consult with and advise GOBM with respect to
shareholder meetings, interviews of GOBM'S officers by the financial media and
interviews of GOBM'S officers by analysts, market makers, broker-dealers and
other members of the financial community;
(f) PARTNERS shall seek to make GOBM, its management, its products and
services and its financial situation and prospects known to the various
industries in which the Company and its subsidiaries operate, the financial
press and publications, broker-dealers, mutual funds, institutional investors,
market makers, analysts, investment advisors and other members of the financial
community as well as the financial media and the public generally;
(g) To the extent requested by GOBM, PARTNERS shall assist GOBM in
securing funding, including through the exercise of warrants, options, and
similar rights, issued or to be issued;
(h) PARTNERS shall provide general business and financial consulting
services as may be requested by the Board of Directors of GOBM.
4. PERFORMANCE OF SERVICES
PARTNERS warrants and agrees:
(a) That it will render the advisory and consulting services and assume
its responsibilities under this Agreement in accordance with high professional
standards and high levels of expertise; that the personnel assigned to perform
services under this Agreement shall have the appropriate skills and expertise to
efficiently perform such services; and that in carrying out its responsibilities
under this Agreement, PARTNERS hereby assures GOBM that its actions and
performance of services hereunder are and shall be conducted in compliance with
all applicable laws, rules and regulations, including but not limited to federal
and state securities laws; and PARTNERS shall disclose to any and all parties
with whom it deals in accordance with this agreement on behalf of GOBM any and
all of its interest in GOBM, whether direct, indirect, beneficial, contingent or
otherwise;
(b) GOBM shall have no responsibility for the acts and conduct of
PARTNERS hereunder, or its failure to act, such as in the filing of reports,
forms or disclosures, and PARTNERS hereby agrees that it shall defend, indemnify
and hold GOBM (which term for this Section 4(b) includes GOBM'S officers,
directors, agents, shareholders, attorneys and representatives) harmless for and
against any and all liabilities, actions, claims, suits, proceedings, demands,
investigations, including costs, expenses and
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counsel fees, incidental to the performance of services by PARTNERS hereunder or
due to any failure of disclosure by PARTNERS to third parties as to its interest
in GOBM or as to information concerning GOBM or its failure to comply with all
applicable federal and state securities laws, exchanges' and commissions' rules
and regulations; provided such indemnity shall not apply to the extent any such
liability arises from or is substantially attributable to the actions,
negligence act or material omission by GOBM;
(c) That it shall not release any financial or other material
information or data regarding GOBM without first providing same to and receiving
prior approval of GOBM;
(d) That it shall not conduct meetings with financial analysts, merger,
acquisition, joint venture, other business combination or investment candidates,
and potential and existing customers without informing and obtaining the
approval of GOBM in advance of the proposed meeting with the format or agenda of
such meeting and with complete copies of all reports and communications to be
made available at any such meeting to be provided prior thereto to GOBM;
(e) That it shall not release any information or data about GOBM to any
pre-selected person or limited group of people or other entity, in the event
PARTNERS is or should have been aware that such information is material and has
not otherwise been generally released;
(f) That it shall restrict or cease, as directed by GOBM, all public
relations efforts, including all dissemination of information regarding GOBM
immediately upon receipt of instructions to that effect from GOBM; and after
notice by GOBM of a filing for a proposed public offering of its securities and
during any period of restriction on publicity, PARTNERS shall not engage in any
public relations efforts not in the normal course without written approval of
securities counsel for GOBM and counsel for underwriters, if any;
(g) PARTNERS shall not take any action which would in any way adversely
affect the reputation, standing or prospects of GOBM or would cause GOBM to be
in violation of applicable law;
(h) That it shall promptly supply GOBM prior to their use or
dissemination with complete copies of all stockholder reports and
communications; with all data and information to be supplied to any financial
analyst, broker-dealer, market maker, or other member of the financial community
and with all brochures or other materials relating to GOBM, its operations,
management, product, services, finances, proposals, properties, and the like.
PARTNERS shall inform GOBM in advance in writing as to the persons or
institutions to whom release of any of the foregoing information or
communications are to be made.
5. DUTIES OF GOBM
GOBM shall provide PARTNERS, on a regular and timely basis, with all
counsel approved data and information about it, its subsidiaries, its
management, its products and services and its operations and shall advise
PARTNERS of any facts which would affect the accuracy of any data and
information previously supplied pursuant to this paragraph.
GOBM shall promptly supply PARTNERS with full and complete copies of
all filings with all federal and state securities agencies; with full and
complete copies of all stockholder reports and communications; with all data and
information supplied to any financial analyst, broker-dealer, market maker or
other member of the financial community and with all brochures or other sales
materials relating
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to its products or services. GOBM shall inform PARTNERS as to the persons or
institutions to whom release of any of the foregoing information or
communications have been made.
6. REPRESENTATION AND INDEMNIFICATION
GOBM shall be deemed to have made a continuing representation of the
accuracy of any and all material facts, information and data which it supplies
to PARTNERS and acknowledges its awareness that PARTNERS will rely on such
continuing representation in disseminating such information and otherwise
performing its consulting functions. However, nothing herein is to be construed
as alleviating PARTNERS' due diligence obligations; and provided further that
all information provided by GOBM to PARTNERS that subsequently changes or is
updated is construed as accurate at the time provided. Other than its knowledge
of changes or updated materials, PARTNERS, in the absence of notice in writing
from GOBM, will rely on the continuing accuracy of material, information and
data. GOBM shall defend, indemnify and hold PARTNERS (which term for this
Section 6 includes PARTNERS' officers, directors, agents, shareholders,
attorneys and representatives) harmless for any and all liabilities, actions,
claims, suits, proceedings, demands, investigations, including costs, expenses
and counsel fees, incident to the providing to PARTNERS by GOBM of materially
false facts, information or data concerning itself or its operations or omitting
to provide such material facts, information or data that renders the disclosure
false, misleading fraudulent; provided such indemnity shall not apply to the
extent any liability arises from or is substantially attributable to a negligent
act or material omission by PARTNERS.
7. COMPENSATION
a) For PARTNERS agreeing to be available to provide the services
described hereunder, GOBM agrees to issue to PARTNERS 15,000,000 warrants to
acquire 15,000,000 shares of GOBM common stock, at an exercise price of $0.10,
in lieu of PARTNERS' normal monetary retainer fee and normal monthly monetary
compensation. Said warrants are to be issued and are deemed earned upon
execution of this Agreement. Said warrants shall expire five (5) years after the
execution of this Agreement. The form of Warrant is attached hereto as Exhibit
"A".
b) In addition to the payments provided in subsection 7(a) hereof,
PARTNERS shall be entitled to additional success fees in connection with any
acquisitions, divestitures, financing and other similar transactions not so
defined in subsection 7(a) above when consummated by GOBM in which PARTNERS has
been involved for purposes of negotiation or evaluation on behalf of GOBM. Any
transaction which is so initiated, notwithstanding consummation date, within two
(2) years of the termination of this Agreement shall be subject to this success
fee, which success fee to be separately negotiated between the parties, and
agreed to in writing via an instrument separate from this Agreement.
c) As further inducement to PARTNERS to serve GOBM as provided in
Section 3 above, GOBM covenants and agrees that, as more fully set forth in
Exhibit "A", GOBM shall immediately cause to be filed a Registration Statement
under the Securities Act of 1933, as amended, registering the shares acquired
via the warrant exercise. The aforementioned registrations will be at the
expense of GOBM.
8. EXPENSES
PARTNERS is expected to incur reasonable out-of-pocket expenses,
including telephone charges, for providing the services for GOBM as provided
herein. Reimbursement for such expenses shall be subject to such reasonable
budget previously approved by GOBM. Any anticipated significant
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expenses (significant encompasses any expenses exceeding $500.00) must be
submitted to GOBM for prior written approval.
For other expenses on behalf of GOBM other than out-of-pocket expenses,
such as third party work (lay-outs, xxxx-ups, printing, art, photograph or
graphics), for GOBM annual reports, interim shareholder reports, product
brochures, press releases, and similar works, GOBM shall either pay such
third-party vendors or reimburse PARTNERS if previously approved by GOBM as to
the vendor and the work.
9. RELATIONSHIP OF PARTIES
PARTNERS is responsible for compensation of its agents, employees and
representatives, as well as all applicable withholding therefrom and taxes
thereon. This Agreement does not establish any partnership, joint venture or
other business entity or association between the parties hereto and neither
party is intended to have any interest in the business or property of the other
except for the issuance of warrants to acquire shares by PARTNERS as set forth
in Section 7 hereto. Except as expressly agreed herein neither party shall have
the authority to obligate, commit or bind the other in any manner whatsoever,
except that should PARTNERS desire to subcontract services, GOBM shall be
notified in writing and approve of such subcontractor relationship before any
services are rendered or compensation is assigned to subcontractor.
10. DISCLOSURE OF INFORMATION
PARTNERS acknowledges that, in and as a result of the Agreement, it
will be making use of, acquiring and/or adding to confidential or proprietary
information of a special and unique nature and value to GOBM, including, but not
limited to, the nature and material terms of business opportunities and
proposals available to GOBM, the names and addresses of GOBM customers and
suppliers, operating procedures, methods and systems, financial records of GOBM
and other information, data and documents now existing or later acquired by
PARTNERS regardless of whether any such information, data or documents qualify
as a "trade secret" under applicable federal or state laws (collectively, the
"Confidential Information"). As a material inducement to GOBM to enter into this
Agreement, and to pay to PARTNERS the compensation referred to in Section 7
hereof, along with other considerations provided herein, PARTNERS covenants and
agrees that it shall not at any time during the term or following any
termination of this Agreement, directly or indirectly, divulge or disclose or
use for any purpose whatsoever (except for the sole and exclusive benefit of
GOBM as reasonably required in connection with its duties to or as otherwise
required by law), any Confidential Information which has been obtained by or
disclosed to it as a result of this Agreement or its retention hereunder. In
accordance with the foregoing, PARTNERS further agrees that it will at no time
retain or remove from the premises of GOBM records of any kind or description
whatsoever for any purpose whatsoever unless authorized by GOBM and will return
all of the foregoing to GOBM upon GOBM'S request or upon any termination or
expiration of this Agreement. In the event of a breach of threatened breach by
PARTNERS of any of the provisions of this Section 11, GOBM, in addition to and
not in limitation of any other rights, remedies or damages available to it at
law or in equity, shall be entitled to a permanent injunction in order to
prevent or to restrain any such breach by PARTNERS or its agents, partners,
representatives, servants, employers, employees and/or any and all persons
directly or indirectly acting for or with PARTNERS.
11. TRANSFER OF INTEREST AND DUTIES.
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The parties hereto agree that in the event GOBM is sold or merged with
another corporation, then, and in that case, this Agreement may be assigned by
GOBM to said merged or acquiring corporation, and PARTNERS hereby agrees to be
bound by this Agreement even though GOBM shall be merged with another.
12. APPLICABLE LAW; SEVERABILITY.
This Agreement shall be governed by and construed pursuant to the laws
of the State of New Jersey. If any terms or part of this Agreement shall be
determined to be invalid, illegal or unenforceable in whole or in part, the
validity of the remaining part of such term of the validity of any other term of
this Agreement shall not in any way be affected. All provisions of this
Agreement shall be construed to be valid and enforceable to the full extent
permitted by law.
13. BINDING PROVISIONS AND PERFORMANCE.
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their successors in interest of any kind whatsoever, and all
such parties agree to be bound by the provisions contained herein. Except as
expressly provided herein, this Agreement does not create, and shall not be
construed as creating, any rights enforceable by any person not a party hereto.
14. AMENDMENT.
No amendment or variation of the terms of this Agreement shall be valid
unless made in writing and signed by the parties hereto.
15. ENTIRE AGREEMENT.
This Agreement represents the entire agreement between the parties
hereto with respect to the subject matter hereof.
16. NOTICES.
Any notice required or permitted to be given hereunder shall be in
writing and shall be mailed by first-class pre-paid mail or otherwise delivered
in person or by facsimile with hardcopy to follow by first-class pre-paid mail
at the address of such party set forth in the preamble to this Agreement or to
such other address or facsimile telephone number as the party shall have
furnished in writing to the other party.
17. WAIVER.
Any waiver by either party of a breach of any provision of this
Agreement shall not operate as or be construed to be a waiver of any other
breach of that provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any term of
this Agreement on one or more occasions will not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term of any other term of this Agreement.
IN WITNESS WHEREOF, the Consulting Agreement has been executed by the
Parties as of the date first written above.
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/s/ Xxxxxx Xxxxx /s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxx Xxxxx, Chairman Xxxxxxx X. Xxxxxxxxx, President
GOLD BOND RESOURCES, INC. XXXXXXX XXXXX PARTNERS, INC.
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