CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made as of the 4th day of
September, 2003, by and between Piezo Instruments, Inc., a Utah corporation
("Piezo"); Xxxxxx Services, Inc., a Utah corporation ("Xxxxxx Services"); and
Xxxxxxxx X. Xxxxxxxx, Xxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxx
and Xxxxx X. Xxxxxx, Xxxxxx Services' principals and/or employees or
consultants, and Xxxxxxx X. Xxxxxxxxxx, Esq., its legal counsel, who have and
will be rendering the services covered by this Agreement (collectively, the
"Consultants").
RECITALS
WHEREAS, Xxxxxx Services is a financial consulting firm that has
substantial expertise in advising private and public companies respecting
business plans, corporate structure, reorganization, acquisitions and mergers;
and
WHEREAS, Xxxxxx Services, by and through its Consultants, desires to
render services for and on behalf of Piezo; and
WHEREAS, Piezo desires to engage the services of Xxxxxx Services, by and
through its Consultants, and
WHEREAS, Piezo has provided Xxxxxx Services and the Consultants with
access to all material information concerning its organization, financial
condition, management, present and intended business operations or other
available information and has made its directors and executive officers
available to answer questions posed by Xxxxxx Services and the Consultants
regarding such information; and
WHEREAS, Xxxxxx Services and the Consultants are "accredited investors"
as that term in defined under Regulation D of the Securities and Exchange
Commission and have had access to all material information concerning Piezo,
its organization, financial condition, management, present and intended
business operations and other available information, and have had the
opportunity to ask questions of Piezo's directors and executive officers with
respect to such information and that all questions posed have been answered to
their complete satisfaction; and
WHEREAS, the parties desire to execute this Agreement to cover
compensation for these services that have and will be rendered by the
Consultants, and which Agreement shall have no affect on any other written
arrangements, written agreements or other written understandings between
Xxxxxx Services, the Consultants and Piezo whatsoever;
NOW, THEREFORE, for and in consideration of the mutual promises and
covenants hereinafter set forth and the benefits to the parties to be derived
there from, it is hereby agreed as follows:
1. Services and Costs. The Consultants are hereby retained by Piezo
to serve as independent Consultants to provide advice and services
to Piezo in connection with the foregoing recitation of services
and related non-capital raising services, to the maximum of an
aggregate of 30 hours during the term hereof, and shall be
designated by Xxxxx X. Xxxxxx of Xxxxxx Services. All direct out
of pocket costs incurred by the Consultants during the terms
hereof shall be paid by Piezo; provided, however, any individual
costs in excess of $100 shall be first approved by the Chief
Executive Officer of Piezo. The Consultants agree to provide such
services to Piezo as Piezo may from time to time reasonably
request, including, without limitation, advice and services with
respect to those matters as to which they have special competence
by reason of their business experience, knowledge, and abilities.
Xxxxxx Services shall make the Consultants available during
reasonable business hours to perform all services reasonably
requested by Piezo under this Agreement, with the exception of
Xxxxxx Services's counsel, Xxxxxxx X. Xxxxxxxxxx, Esq., whose
services shall only relate to advice to or for the benefit of
Xxxxxx Services in providing the services covered hereby, and the
preparation and filing of the S-8 Registration Statement referred
to in Section 3 hereof.
2. Term. This Agreement shall remain in full force and effect for a
period of six months from the Closing of the Agreement and Plan of
Reorganization between Piezo and Omni Medical Holdings, Inc.
3. Compensation. Piezo shall pay, and Consultants shall accept, a
fee of 293,104 shares of Piezo common stock, all to be issued
pursuant to a Registration Statement on Form S-8 to be filed as
soon as practicable following the confirmation that the
reorganized Piezo is current in its filings with the Securities
and Exchange Commission. These shares shall be issued as follows:
Xxxxxxxx X. Xxxxxxxx 5,000
00000 Xxxxxxxxx Xxxx Xxxx
Xxxxxx, Xxxx 00000
Xxxxxx X. Xxxxxxx 29,500
0000 Xxxxx Xxxxxxxx Xxxxx, #000
Xxxx Xxxx Xxxx, Xxxx 00000
Xxxxxx X. Xxxxxx 29,500
0000 Xxxxx Xxxxxxxx Xxxxx, #000
Xxxx Xxxx Xxxx, Xxxx 00000
Xxxxxxx X. Xxxxxx 31,250
0000 Xxxxx Xxxxxxxx Xxxxx, #000
Xxxx Xxxx Xxxx, Xxxx 00000
Xxxxx X. Xxxxxx 188,399
0000 Xxxxx X xxxxxxx Xxxxx, #000
Xxxx Xxxx Xxxx, Xxxx 00000
Xxxxxxx X. Xxxxxxxxxx, Esq. 25,000
000 Xxxx 000 Xxxxx, #000
Xxxx Xxxx Xxxx, Xxxx 00000
Total: 293,104
4. Independent Contractors. Xxxxxx Services and the Consultants are
retained under the terms of this Agreement as independent
contractors and nothing herein shall be construed as creating an
employer/employee relationship between the parties or their
principals or employees. Xxxxxx Services and the Consultants
shall be solely liable for the payment of any taxes imposed or
arising out of the payment of the compensation to it by Piezo as
set forth in this Agreement.
5. Termination for Cause. Piezo may not terminate this Agreement
during its term without cause which shall be established by
showing one or more of the following:
x. Xxxxxx Services or the Consultants have materially breached the
terms of this Agreement and, as a result, Piezo has suffered
damages;
x. Xxxxxx Services or the Consultants, in the determination of the
Board of Directors of Piezo, have been grossly negligent in the
performance of their duties hereunder;
x. Xxxxxx Services or the Consultants have substantially failed to
perform the duties requested in writing by Piezo, on action by
the Board of Directors, under the terms of this Agreement after
10 days written notice setting forth the details of such
alleged substantial failure; or
x. Xxxxxx Services or the Consultants have engaged in material,
willful, or gross misconduct in the performance of its duties
hereunder.
No termination under this Section shall have any affect on the
fees that are payable to the Consultants hereunder, and all shares
allocated to each of the Consultants hereunder shall vest and be
payable to the Consultants under this Agreement, without
qualification.
6. Lock-Up/Leak-Out Agreement. Piezo is contemplating a
reorganization with Omni Medical Holdings, Inc., a publicly-held
Nevada corporation ("Omni"), and the Shareholders have each agreed
to execute and deliver the Lock-Up/Leak-Out Agreement that is
attached hereto as Exhibit A and incorporated herein by reference
as a condition subsequent to the issuance of the securities of
Piezo hereunder, in the event of the closing of this
reorganization.
7. Nondisclosure of Information. Xxxxxx Services and the Consultants
agree that during the term of this Agreement, none will, directly
or indirectly, disclose to any person not authorized by Piezo to
receive or use such information, any of Piezo's confidential or
proprietary data, information, or techniques, or give to any
person not authorized by Piezo to receive it any information that
is not generally known to anyone other than Piezo or that is
designated by Piezo as "limited," "private," "confidential," or
otherwise marked to indicate its confidential nature.
8. Assignment. This Agreement may not be assigned by either party
without the prior written consent of the other party.
9. Entire Agreement. Except as indicated in the recitation at the
forefront of this Agreement, this Agreement supersedes any and all
other agreements, oral or written, between the parties with
respect to the subject matter hereof, and no other agreement,
statement or promise relating to the subject matter of this
Agreement which is not contained or referred to herein shall be
valid or binding.
10. Governing Law. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of Utah, and
any action brought by any party to this Agreement shall only be
maintained in the federal and state court situated in Salt Lake
County, Utah.
11. Severability. If, and to the extent that, any court of competent
jurisdiction holds any provision of this Agreement to be invalid
or unenforceable, such holding shall in no way affect the validity
of the remainder of this Agreement.
12. Waiver. No failure by any party to insist on the strict
performance of any covenant, duty, agreement, or condition of this
Agreement, or to exercise any right or remedy consequent on a
breach thereof, shall constitute a waiver of any such breach or
any other covenant, agreement, term, or condition.
13. Default. In the event of any default hereunder, the non-
defaulting party shall be entitled to recover reasonable
attorney's fees and related costs in the enforcement of this
Agreement.
14. Current Status of Reports of Piezo. Following the closing of the
Agreement and Plan of Reorganization between Piezo and Omni
Medical Holdings, Inc., Piezo shall do everything in its power and
use its best efforts to immediately file all information with the
Securities and Exchange Commission that would assist the Company
in being deemed to be "current" in the filing of its reports that
are required to have been filed by it during the previous twelve
months, without qualification.
PIEZO INSTRUMENTS, INC.
Dated: 9/8/03 By /s/ Xxxxxx X. Xxxxx
Its President
XXXXXX SERVICES, INC.
Dated: 9/4/03 By /s/ Xxxxx x. Xxxxxx
Its Chief Executive Officer
CONSULTANTS
Dated: 9/4/03 /s/ Xxxxxxxx X. Xxxxxxxx
Dated: 9/4/03 /s/ Xxxxxx X. Xxxxxxx
Dated: 9/4/03 /s/ Xxxxxx Xxxxxx
Dated: 9/4/03 /s/ Xxxxxxx X. Xxxxxx
Dated: 9/4/03 /s/ Xxxxx X. Xxxxxx
Dated: 9/4/03 /s/ Xxxxxxx X. Xxxxxxxxxx, Esq.
EXHIBIT A
LOCK-UP/LEAK-OUT AGREEMENT
THIS LOCK-UP/LEAK-OUT AGREEMENT (the "Agreement") is made and
entered into as of the 5th day of September, 2003, between Piezo Instruments,
Inc., a Utah corporation ("Piezo"), and the individuals and entities that
execute and deliver a Counterpart Signature Page hereof, each a shareholder of
Piezo, and sometimes collectively referred to herein as the "Shareholders" and
each, a "Shareholder."
WHEREAS, Piezo intends to enter into an Agreement and Plan of
Reorganization between Piezo, Omni Medical Holdings, Inc., a Nevada
corporation ("Omni"), and the Omni Stockholders (the "Reorganization
Agreement") pursuant to which the execution and delivery of this Agreement is
a condition precedent to the closing of the Reorganization Agreement; and
WHEREAS, in order to facilitate the consummation of the transactions
contemplated by the Reorganization Agreement and to provide for an orderly
market for the Common Stock of Piezo subsequent to the closing of the
Reorganization Agreement, the Shareholders have agreed to enter into this
Agreement and to restrict the sale, assignment, transfer, conveyance,
hypothecation or alienation of the Common Stock, all on the terms set forth
below.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants contained herein, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Notwithstanding anything contained in this Agreement, a
Shareholder may transfer his/her/its shares of Common Stock to his/her/its
affiliates, partners in a partnership, subsidiaries and trusts, or spouses and
lineal descendants for estate planning purposes provided that the transferee
(or the legal representative of the transferee) executes an agreement to be
bound by all of the terms and conditions of this Agreement.
2. Except as otherwise expressly provided herein, and except as
each Shareholder may be otherwise restricted from selling shares of Common
Stock, each Shareholder may only sell Common Stock subject to the following
conditions for the twelve (12) month period from the closing of the
Reorganization Agreement (the "Lock-Up/Leak-Out Period"):
2.1 The Shareholders shall collectively be allowed to sell 1% of
the outstanding securities of Piezo in any three month period
for a period of 12 months from the closing of the
Reorganization Agreement (the "Lock-Up/Leak/Out Period").
2.2 Except as otherwise provided herein, all Common Stock shall be
sold in "broker's transactions" as that term is defined in
Rule 144 of the Securities and Exchange Commission during the
Lock-Up/Leak-Out Period.
2.3 The Shareholders agree that they will not engage in any short
selling of the Common Stock during the Lock-Up/Leak-Out
Period.
2.4 During the Lock-Up/Leak/Out Period, Piezo shall maintain its
"reporting" status with the Securities and Exchange
Commission; file all reports that are required to be filed by
it during such period; and use its "best efforts" to ensure
that the Common Stock is continually quoted for public trading
on a nationally recognized medium of no less significance than
the OTC Electronic Bulletin Board of the National Association
of Securities Dealers, Inc. (the "NASD"), the NASDAQ Small Cap
or a recognized national stock exchange.
3. By executing this Agreement, each Shareholder represents that
the Common Stock set forth in his/her/its Counterpart Signature Page is all of
the shares of Piezo Common Stock that such Shareholder beneficially owns as of
the date hereof. In addition to the Common Stock set forth in the Counterpart
Signature Page, this Agreement shall apply to all Piezo Common Stock of which
each Shareholder become the beneficial owner of during the Lock-Up/Leak-Out
Period.
4. Notwithstanding anything to the contrary set forth herein, Piezo may, in
its sole discretion, at any time and from time to time, waive any of the
conditions or restrictions contained herein to increase the liquidity of
the Common Stock or if such waiver would otherwise be in the best interests of
the development of the trading market for the Common Stock.
5. In the event of a tender offer to purchase all or substantially all of
Piezo's issued and outstanding securities, or a merger, consolidation or
other reorganization with or into an unaffiliated entity, and if the requisite
number of the record and beneficial owners of Piezo securities then
outstanding are voted in favor of such tender offer, merger, consolidation or
reorganization, and such tender offer, merger, consolidation or reorganization
is completed, this Agreement shall terminate as of the closing of such event
and the Common Stock restricted pursuant hereto shall be released from such
restrictions.
6. Except as otherwise provided in this Agreement or any other agreements
between the parties, the Shareholders shall be entitled to their respective
beneficial rights of ownership of the Common Stock, including the right to
vote the Common Stock for any and all purposes.
7. The Common Stock and per share price restrictions covered by this
Agreement shall be appropriately adjusted should Piezo make a dividend or
distribution, undergo a forward split or a reverse split or otherwise
reclassify its shares of Common Stock.
8. No transfer of any of the shares of Common Stock that are subject to this
Agreement shall be made in any transaction other than a "broker's transaction"
unless the transferee executes and delivers a copy of this Agreement prior to
the transfer of any stock certificate representing any of the Common Stock so
transferred.
9. This Agreement may be executed in any number of counterparts with the
same force and effect as if all parties had executed the same document.
10. All notices, instructions or other communications required or permitted
to be given pursuant to this Agreement shall be given in writing and delivered
by certified mail, return receipt requested, overnight delivery or
hand-delivered to all parties to this Agreement, to Piezo, at 0000 Xxxxx
Xxxxxxxx Xxxxx, #000, Xxxx Xxxx xxxx, Xxxx 00000, and to the Shareholders, at
the addresses in their Counterpart Signature Pages. All notices shall be
deemed to be given on the same day if delivered by hand or on the following
business day if sent by overnight delivery or the second business day
following the date of mailing.
11. The resale restrictions on the Common Stock set forth in this
Agreement shall be in addition to all other restrictions on transfer imposed
by applicable United States and state securities laws, rules and regulations.
12. Piezo or each Shareholder who fails to fully adhere to the
terms and conditions of this Agreement shall be liable to every other party
for any damages suffered by any party by reason of any such breach of the
terms and conditions hereof. Each Shareholder agrees that in the event of a
breach of any of the terms and conditions of this Agreement by any such
Shareholder, that in addition to all other remedies that may be available in
law or in equity to the non-defaulting parties, a preliminary and permanent
injunction, without bond or surety, and an order of a court requiring such
defaulting Shareholder to cease and desist from violating the terms and
conditions of this Agreement and specifically requiring such Shareholder to
perform his/her/its obligations hereunder is fair and reasonable by reason of
the inability of the parties to this Agreement to presently determine the
type, extent or amount of damages that Piezo or the non-defaulting
Shareholders may suffer as a result of any breach or continuation thereof.
13. This Agreement sets forth the entire understanding of the
parties hereto with respect to the subject matter hereof, and may not be
amended except by a written instrument executed by the parties hereto.
14. This Agreement shall be governed by and construed in accordance
with the laws of the State of Utah applicable to contracts entered into and to
be performed wholly within said State; and Piezo and the Shareholders agree
that any action based upon this Agreement may be brought in the United States
and state courts of Utah only, and each submits himself/herself/itself to the
jurisdiction of such courts for all purposes hereunder.
15. In the event of default hereunder, the non-defaulting parties
shall be entitled to recover reasonable attorney's fees incurred in the
enforcement of this Agreement.
IN WITNESS WHEREOF, the undersigned have duly executed and delivered
this Agreement as of the day and year first above written.
Date: 9/4/03 PIEZO INSTRUMENTS, INC.
By /s/ Xxxxxx X. Xxxxxxx
LOCK-UP/LEAK-OUT AGREEMENT
COUNTERPART SIGNATURE PAGE
This Counterpart Signature Page for that certain Lock-Up/Leak-Out
Agreement (the "Agreement") dated as of the 5th day of September, 2003, among
Piezo Instruments, Inc., a Utah corporation ("Piezo"); and certain persons who
are "Shareholders" of Piezo, by which the undersigned, through execution and
delivery of this Counterpart Signature Page, intends to be legally bound by
the terms of the Agreement, as a Shareholder, of the number of shares of Piezo
set forth below or hereafter acquired during the Lock-Up/Leak-Out Period as
defined in the Agreement.
Date: 9/4/03 Xxxxxx Services, Inc.
By /s/ Xxxx X. Xxxxxx
Date: 9/4/03 /s/ Xxxxxxx X. Xxxxxx
Date: 9/4/03 /s/ Xxxxxx X. Xxxxxx
Date: 9/4/03 /s/ Xxxxx X. Xxxxxx
Date: 9/4/03 /s/ Xxxxxxxx X. Xxxxxxxx
Date: 9/4/03 /s/ Xxxxxx X. Xxxxxxx
Date: 9/4/03 /s/ Xxxxx X. Xxxxxxxxx
Date: 9/4/03 /s/ Xxxxxxx X. Xxxxxxxxx
Date: 9/4/03 W-Group
By /s/ Xxxxx X. Xxxxxxxxx
Date: 9/4/03 EADAC Investments
By /s/ Xxxxx X. Xxxxxxxxx
Date: 9/5/03 /s/ Xxxxxxx X. Xxxxxxxxxx
