EXHIBIT 99
Consulting Fee Agreement, dated February 28, 1997
CONSULTING FEE AGREEMENT
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This Consulting Fee Agreement (the "Agreement") is made this 28th day of
February, 1997, by and among Mason Oil Company, Inc., a Utah corporation, and
its successors and assigns, whose principal place of business is located at
6337 Ravenwood Drive, P.O. Box 1566, Sarasota, Florida, 34230 (the "Company")
and Carl L. Smith, III, a Florida resident with an address of 5423 Creeping
Hammock Drive, Sarasota, Florida 34231, and Matthew A. Veal, a Florida
resident with an address of 2917 S. Atlantic Avenue, Unit 502, Daytona Beach
Shores, Florida 32118, and Peg Quisenberry, a Florida resident with an address
of 2389 Main Street, Sarasota, Florida 34237, and David Wood, a North Carolina
resident with an address of 7720 Arboretum Drive, Suite 103, Charlotte, North
Carolina 28270 (collectively, the "Consultants"). The Consultants executed
and delivered this Agreement by the execution and delivery of the Counterpart
Signature Pages which are designated as Exhibits "A" through "D" hereof.
RECITALS
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WHEREAS, the Board of Directors of the Company has agreed to adopt a
written consulting fee agreement for compensation of four individual
Consultants, who are natural persons, for agreed upon services previously
performed and to be performed; and
WHEREAS, the Company has previously engaged the Consultants to provide
services at the request of and subject to the satisfaction of its management,
and may avail itself of the services of the Consultants during the term
hereof; and
WHEREAS, the Consultants have provided services at the request and
subject to the approval of the management of the Company; and
WHEREAS, a general description of the nature of the agreed-upon services
performed and to be performed by the Consultants and the estimated value of
such services under this Agreement are listed in the Counterpart Signature
Pages attached hereto; and
WHEREAS, the Company and the Consultants intend that this Agreement shall
be a "written compensation agreement" as defined in Rule 405 of the Securities
and Exchange Commission (the "SEC") pursuant to which the Company may issue
"freely tradeable" shares of its common stock as payment for services rendered
pursuant to an S-8 Registration Statement to be filed with the SEC by the
Company.
NOW THEREFORE, in consideration of the mutual covenants and promises
contained herein, it is agreed:
OPERATIVE PROVISIONS
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1. Consultant Services. The Company hereby acknowledges the employment of
the Consultants and the Consultants hereby acknowledge acceptance of such
employment, and have performed the services requested by management of the
Company to the Company's satisfaction during the term hereof. Subject to the
terms and conditions of this Agreement, the Consultants shall continue to
provide consulting services at the request of the Company in connection with
its general operations and projects. The Consultants have no minimum or
maximum time limits in performing duties hereunder; provided, however, that
any services performed by the Consultants shall be performed in accordance
with the requests of the management of the Company. The services performed by
the Consultants hereunder have been personally rendered by the Consultants and
no one acting for or on behalf of the Consultants, except those persons
normally employed by the Consultants in rendering services to others, such as
secretaries, bookkeepers and the like.
2. Compensation. In consideration of the services performed and to be
performed by the Consultants hereunder, shares of the Company's common stock
shall be issued to the Consultants according to the following schedule (the
"Shares"):
Name of Consultant Number of Shares
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Carl L. Smith, III 350,000
Matthew A. Veal 350,000
Peg Quisenberry 5,000
David Wood 150,000
3. Grant of Certain Options. In addition to the Compensation, and in
further consideration of services performed and to be performed by certain
Consultants hereunder, the following options are hereby granted to purchase
shares of common stock of the Company at a price of $0.02 per share, all or
any part of which may be exercised for a period of two years from the
Effective Date of this Agreement, as defined herein (the "Options"):
Name of Consultant Number of Shares
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Peg Quisenberry 195,000
4. Delivery of Shares and Option Shares. Subject to the filing and
effectiveness of a Registration Statement on Form S-8 of the SEC and any
applicable state securities filings covering the Shares, one or more
certificates representing such Shares shall be delivered to the respective
Consultants, at their respective addresses listed above, unless another
address shall be provided to the Company by any Consultant in writing prior to
the creation of such certificates. On submission of payment for the number of
shares to be purchased from time to time upon exercise of the Options or any
part thereof (the "Option Shares"), which payment shall be in U.S. dollars in
immediately available funds, and subject to the filing and effectiveness of a
Registration Statement on Form S-8 of the SEC and any applicable state
securities filings covering the Option Shares, one or more certificates
representing such Option Shares shall be delivered to the applicable
Consultant, at her address listed above, unless another address shall be
provided to the Company by such Consultant in writing prior to the creation of
such certificates.
5. Additional Compensation. In further consideration of services
performed or to be performed by David Wood, one of the Consultants hereunder,
the Company shall pay to David Wood a total of $15,000 as follows: $5,000 on
or before February 15, 1997; $5,000 on or before March 15, 1997; and $5,000 on
or before April 15, 1997.
6. Expenses. The Company shall reimburse the Consultants for all ordinary
and necessary out-of-pocket expenses incurred on behalf of the Company in
connection with the services performed or to be performed by the Consultants
hereunder. The Consultants shall furnish such receipts or other evidence of
payment of such expenses as may be reasonably necessary to substantiate the
same.
7. Limitation on Nature of Services. None of the services performed or to
be performed by the Consultants and paid for by the issuance of shares of
common stock of the Company are or shall be services related to any "capital
raising" transaction.
8. Confidential Information. The Consultants acknowledge that in the
course of performance of services under this Agreement, it has had or will
have access to and has acquired or will acquire Confidential Information (as
hereinafter described) concerning the Company, its business and operations.
Each of the Consultants agrees that he/she will not disclose any Confidential
Information to third parties or use any Confidential Information for any
purpose other than the performance of this Agreement except as disclosure may
be necessary or appropriate in the course of performing this Agreement. For
purposes of this Agreement, the term "Confidential Information" shall include
all information relating to the business of the Company and all processes,
services and other activities engaged in by the Company during the term of
this Agreement; provided, however, that the term "Confidential Information"
shall not include any information which at the time of disclosure to the
Consultant is in the public domain, or which subsequently becomes a part of
the public domain by publication or otherwise through no fault of the
Consultant, or which is subsequently disclosed to the Consultant or its
employees by a third party not in violation of any rights or obligations owed
by such third party to the Company.
9. Indemnification. Each party to this Agreement (hereinafter an
"Indemnifying Party") hereby agrees to indemnify each of the other parties to
this Agreement (hereinafter an "Indemnified Party") for and hold the
Indemnified Party harmless against the following: (a) any and all loss,
liability or damage resulting from any breach or nonfulfillment of any
agreement or obligation of the Indemnifying Party under this Agreement; (b)
any losses, damages, fees, settlements, or other costs or expenses resulting
from any misstatement of a material fact or omission of a material fact by the
Indemnifying Part contained herein or contained in the S-8 Registration
Statement of the Company to be filed hereunder, to the extent that any such
misstatement or omission contained in the Registration Statement was based
upon information supplied by the Indemnifying Party; and (c) any and all
actions, suits, proceedings, damages, assessments, judgements, settlements,
costs and expenses, including reasonable attorneys' fees, incurred by the
Indemnified Party as a result of the failure or refusal of the Indemnifying
Party to defend any claim incident to or otherwise honor the foregoing
provisions after having been given notice of and an opportunity to do so.
If any claim or liability shall be asserted against an Indemnified Party
which would give rise to a claim by the Indemnified Party against an
Indemnifying Party for Indemnification under the provisions of this Paragraph
5, the Indemnified Party shall promptly notify the Indemnifying Party in
writing of the same and, subject to the prior approval of the Indemnified
Party, which approval shall not be unreasonably withheld, the Indemnifying
Party shall be entitled at its own expense to compromise or defend any such
claim. The Indemnifying Party shall keep the Indemnified Party informed of
developments with respect to such claim, including any litigation, and the
Indemnified Party shall not compromise or settle any action, claim, demand or
litigation without the prior written consent of the Indemnifying Party, in
breach of which the Indemnified Party shall have no right to indemnification
under this Agreement in respect of such compromise or settlement.
10. Term; Termination. The "Effective Date" of this Agreement is February
___, 1997. This Agreement shall remain in effect unless and until terminated
as hereinafter provided. This Agreement may be terminated as to any
Consultant (a) by such Consultant with cause upon forty-five (45) days notice
in writing to the Company; or (b) by the Company with cause upon forty-five
(45) days notice in writing to such Consultant if such Consultant fails to
perform its obligations under this Agreement and shall fail to cure such
default prior to the effective date of termination; or (c) by the Company
when, upon the Company's determination, the services to be performed by such
Consultant are no longer required by the Company. Notwithstanding the
foregoing, however, this Agreement shall have a minimum term of six (6) months
and may not be terminated prior to delivery of the Shares in accordance with
Paragraph 4 of this Agreement. Moreover, notwithstanding the foregoing, this
Agreement shall terminate as to David Wood on April 27, 1997, unless extended
by written agreement of David Wood and the Company.
11. Independent Contractor. The Company and the Consultants agree that
the Consultants are independent contractors for all services performed under
the terms and conditions of this Agreement and shall not be deemed to be the
Company's agent for any purpose whatsoever and are not granted any right or
authority under this Agreement to assume or create any obligation or
liability, whether express or implied, absolute or contingent, on the
Company's behalf, or to bind the Company in any manner. The Consultants
shall be liable for any FICA taxes, withholding or other similar taxes or
charges arising from the issuance of any shares of the Company's common stock
to any Consultant or any other compensation received hereunder, and the
Consultants shall indemnify and hold harmless the Company therefrom; it is
understood by the parties that the value of all such items has been taken into
account by the parties in determining the amount of compensation for services
rendered by the Consultants hereunder.
12. Representations and Warranties of the Company. The Company represents
and warrants to, and covenants with, the Consultants as follows:
a. Corporate Status. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Utah.
b. Registration Statement of Form S-8. The Company shall engage the
services of a competent professional or professionals to prepare and file a
Registration Statement on Form S-8 with the SEC to cover the Shares and Option
Shares to be issued under this Agreement, and the Company shall provide to the
Consultants prior to the issuance and delivery of any such Shares or Option
Shares a copy of each of the following: the Form S-8 Registration Statement;
this Agreement; all quarterly, annual or current reports or other documents
incorporated by reference into such Registration Statement; and any other
similar reports filed or publicly disseminated following the effective date of
any such Registration Statement.
c. Securities Laws. The Company shall fully comply with any and all
federal and state securities laws, rules and regulations governing the
issuance of any the Shares or Option Shares.
d. Reports with the SEC. The Company is required to file reports with
the SEC pursuant to Section 15(d) of the Securities Exchange Act of 1934, as
amended (the "1934 Act"), and the Company has or will file with the SEC all
reports required to be filed by it, and such reports are or will be true and
correct in every material respect; and the Company will continue to comply
with applicable reporting requirements and keep any required reports current
so long as any of the Option Shares remain to be issued hereunder or the
Options have not expired hereunder.
13. Representation and Warranties of Consultants. Each of the Consultants
individually represents and warrants to, and covenants with, the Company as
follows:
a. Employment. Each of the Consultants has hereby accepted employment
by the Company, and has agreed to perform and has performed the services
requested by management of the Company to the Company's satisfaction during
the term hereof. The services performed by the Consultants have been
personally rendered by the Consultants, and no one acting for or on behalf of
the Consultants.
b. Sophisticated Investors. Each of the Consultants represents and
warrants that by reason of income, net assets, education background and
business acumen, he/she has the experience and knowledge to evaluate the risks
and merits attendant to an investment in shares of common stock of the
Company, either singly or through the aid and assistance of a competent
professional, and are fully capable of bearing the economic risk of loss of
his/her total investment in the Company.
c. Limitation on Services. None of the services rendered or to be
rendered by the Consultants and paid for by the issuance of the Shares or
Option Shares shall be services related to any "capital raising" transaction.
d. Valid Obligation; No Conflicts. Execution of this Agreement and
performance of services hereunder by each Consultant constitutes a valid and
binding obligations of such Consultant and his/her performance hereunder will
not violate any other agreement to which such Consultant is a party.
14. Miscellaneous Provisions.
a. Notices. All notices or other communications required or permitted
to be given pursuant to this Agreement shall be in writing and shall be
considered as properly given or made if hand delivered, mailed from within the
United States by certified or registered mail, or sent by prepaid telegram to
the applicable addresses appearing in the preamble to this Agreement, or to
such other address as a party may have designated by like notice forwarded to
the other parties hereto. All notices, except notices of change of address,
shall be deemed given when mailed or hand delivered and notices of change of
address shall be deemed given when received.
b. Further Assurances. At any time, and from time to time, after the
execution hereof, each party will execute such additional instruments and take
such action as may be reasonably requested by the other party to carry out the
intent and purposes of this Agreement.
c. Binding Agreement; Non-Assignability. Each of the provisions and
agreements herein contained shall be binding upon and enure to the benefit of
the personal representatives, heirs, devises, successors and permitted assigns
of the respective parties hereto; however, none of the rights or obligations
hereunder attaching to any Consultant may be assigned, without the express
written consent on the Company, and none of the rights or obligations
hereunder attaching to the Company may be assigned, without the express
written consent of each of the Consultants. Notwithstanding any provision to
the contrary, however, any Consultant may, as applicable and to the extent
allowable under applicable federal and state securities laws, rules and
regulations, assign any Options held by such Consultant to a registered broker
in connection with such Consultant's lawful sale of such underlying Option
Shares by any such broker.
d. Entire Agreement. This Agreement, and the other documents
referenced herein, constitute the entire understanding of the parties hereto
with respect to the subject matter hereof and supersedes and cancels any prior
agreement, representation or communication, whether oral or written, between
the parties relating to the transactions contemplated herein or subject matter
hereof. No amendment, modification or alteration of the terms hereof shall be
binding unless the same be in writing, dated subsequent to the date hereof and
duly approved and executed by each of the parties hereto.
e. Severability. Every provision of this Agreement is intended to be
severable. If any term or provision hereof is illegal or invalid for any
reason whatever, such illegality or invalidity shall not affect the validity
of the remainder of this Agreement.
f. Headings. The headings of this Agreement are inserted for
convenience and identification only, and are in no way intended to describe,
interpret, define or limit the scope, extent or intent hereof.
g. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
h. Governing Law. This Agreement, and the application or
interpretation hereof, shall be governed exclusively by its terms and by the
laws of the State of Utah. Venue for all purposes shall be deemed proper
within either: (a) Salt Lake County, Utah, or (b) with respect to any action
relating to the rights or obligations hereunder of David Wood, the County of
Mecklenburg, North Carolina, or (c) with respect to any action relating to the
rights or obligations hereunder of Carl L. Smith, III, Matthew A. Veal or Peg
Quisenberry, Sarasota County, Florida.
i. Arbitration. Any controversy or claim arising out of or relating
to this Agreement, or a breach hereof, shall be settled by arbitration, in
accordance with the rules of the American Arbitration Association, and the
parties hereto agree to submit any such claim or controversy to a competent
arbitration body for resolution.
j. Legal Fees and Costs: If any action is initiated by any party to
this Agreement against another, arising out of or relating to the alleged
performance or non-performance of any right or obligation established herein,
or any dispute concerning the same, any and all fees, costs and expenses
reasonably incurred by each successful party or his assigns, or its legal
counsel in investigating, preparing for, prosecuting, defending against, or
providing evidence, producing documents or taking any other action in respect
of, such action shall be the joint and several obligation of and shall be paid
or reimbursed by the unsuccessful party.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement the day and year first written above.
MASON OIL COMPANY, INC.
By: /s/ Paul B. Ingram
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Paul Ingram, President
EXHIBIT "A"
(Consulting Fee Agreement)
COUNTERPART SIGNATURE PAGE
THIS COUNTERPART SIGNATURE PAGE for that certain Consulting Fee Agreement
among Mason Oil Company, Inc. and the undersigned Consultant is executed as of
the date set forth below.
CONSULTANT
Date: 2/28/97 By: /s/ Carl L. Smith, III
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Carl L. Smith, III
EXHIBIT "B"
(Consulting Fee Agreement)
COUNTERPART SIGNATURE PAGE
THIS COUNTERPART SIGNATURE PAGE for that certain Consulting Fee Agreement
among Mason Oil Company, Inc. and the undersigned Consultant is executed as of
the date set forth below.
CONSULTANT
Date: 2/28/97 By:/s/ Matthew A. Veal
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Matthew A. Veal
EXHIBIT "C"
(Consulting Fee Agreement)
COUNTERPART SIGNATURE PAGE
THIS COUNTERPART SIGNATURE PAGE for that certain Consulting Fee Agreement
among Mason Oil Company, Inc. and the undersigned Consultant is executed as of
the date set forth below.
CONSULTANT
Date: 2/28/97 By:/s/ Peg Quisenberry
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Peg Quisenberry
EXHIBIT "D"
(Consulting Fee Agreement)
COUNTERPART SIGNATURE PAGE
THIS COUNTERPART SIGNATURE PAGE for that certain Consulting Fee Agreement
among Mason Oil Company, Inc. and the undersigned Consultant is executed as of
the date set forth below.
CONSULTANT
Date: 2/27/97 By:/s/ David Wood
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David Wood