CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is made this 15th day of
April, 1997, by and among Products, Services & Technology Corp., an Oregon
corporation, and its successors and assigns, whose principal place of business
is located at 1016 Shores Acres Drive, Leesburg, Florida 34748 (the "Company")
and David wood, a North Carolina resident with an address of 7720 Arboretum
Drive, Suite 103, Charlotte, North Carolina 28270, and Henry Hanson, a Montana
resident with an address of 2217 Canyon Drive, Billings, Montana 59102
(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" and "B" hereof.
R E C I T A L S
WHEREAS, the Board of Directors of the Company has agreed to adopt a
written investor relations agreement for compensation of two individual
Consultants, who are natural persons, for agreed upon services previously
performed and to be performed; and
WHEREAS, the Company desires to engage 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 previously provided certain 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 respective Consultants under this
Agreement is 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:
A G R E E M E N T
1. Consultant Services. The Company hereby acknowledges the employment
of the Consultants and the Consultants hereby acknowledge acceptance of such
employment, and have performed or will perform 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 during the
term hereof. Any and all 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
------------------ ----------------
David Wood 260,000
Henry Hanson 40,000
3. Delivery of Shares. Subject to the filing and effectiveness of the
SEC Forms, as provided for and defined in Paragraph 4 of this Agreement, and
any applicable state securities filings covering the Shares, and also subject
to Paragraph 5 of this Agreement, 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.
4. Preparation of Securities Registration Forms; Payment of Fees.
Except as provided in Paragraph 5, the parties understand and agree that the
issuance of the Shares and any Renewal Term Shares (as defined below) shall
occur after the filing with the SEC and effectiveness of all required
Registration Statements and other necessary securities documents, including,
without limitation, a Form 10-SB General Form for Registration and a Form S-8
Registration Statement (the "SEC Forms"). Upon execution of this Agreement,
the Company shall take such actions as are reasonably necessary to effect the
preparation and filing of the SEC Forms, including the engagement of the
services of a competent professional or professionals. In order to facilitate
the Company's preparation and filing of these documents, David Wood agrees to
pay all costs and expenses, or, if applicable, to reimburse the Company for
all costs and expenses, arising from or in connection with the preparation and
filing of the SEC Forms.
5. Failing to Register Securities; Issuance of Restricted Shares. If
the Shares or Renewal Term Shares (as defined below) are not capable of
registration with the SEC as set forth in Paragraph 4 prior to the expiration
of this Agreement pursuant to Paragraph 11, the parties agree that the Shares,
and Renewal Term Shares if applicable, shall be issued to the Consultants as
"restricted" shares. In such circumstance, the transferability of the Shares,
and Renewal Term Shares if applicable, will be restricted by the Securities
Act of 1933, as amended (the "Act"), and applicable state securities laws and
regulations, and neither the Shares nor the applicable Renewal Term Shares
will be eligible to be sold unless they are subsequently registered or an
exemption from registration is available. If the Shares or Renewal Term
Shares are issued as "restricted" shares, the certificates representing such
Shares or Renewal Term Shares will bear appropriate legends referring to the
restrictions on resale and transferability imposed by the Act and applicable
state securities laws and regulations. If the Shares or Renewal Term Shares
are issued as "restricted" shares, the Company shall use its best efforts to
prepare and file a registration statement covering such Shares or Renewal Term
Shares by the earliest practicable date.
6. 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 $10,000 as follows: $5,000
upon execution of this Agreement; and $5,000 on or before thirty (30) days
after the execution of this Agreement.
7. Expenses. The Company shall initially pay for all ordinary and
necessary out-of-pocket expenses incurred by Consultants on behalf of the
Company prior to delivery of the Shares to the Consultants pursuant to
Paragraph 3 hereof, 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
requested by the Company to substantiate the same. Following delivery of the
Shares pursuant to Paragraph 3 hereof, each Consultant shall reimburse the
Company for all amounts initially paid by the Company for such ordinary and
necessary out-of-pocket expenses incurred by such Consultant on behalf of the
Company pursuant to this paragraph.
8. 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.
9. 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.
10. 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 Party 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, judgments, 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
10, the Indemnified Party shall promptly notify the Indemnifying Party in
writing of the same, 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.
11. Term; Expiration. The "Effective Date" of this Agreement is the
date of execution hereof. This Agreement shall remain in effect until
expiration as hereinafter provided. This Agreement shall expire on the date
that is six (6) months after the Effective Date, unless extended in accordance
with Paragraph 12 hereof. Notwithstanding the foregoing, expiration of this
Agreement pursuant to this Paragraph shall not alter or excuse the parties'
obligations under Paragraph 3 or Paragraph 4 of this Agreement.
12. Option to Renew.
12.1 Exercise of Option. The parties agree that the Company shall
have an option to renew this Agreement as to Consultant David Wood for an
additional renewal term of six (6) months. The Company may exercise such
option to renew by providing written notice of such exercise to Consultant
David wood no later than thirty (30) days before the expiration of this
Agreement pursuant to Paragraph 11 hereof.
12.2 Renewal Term Compensation. If the Company exercises such
option to renew, the terms and provisions of this Agreement shall continue to
apply, except that additional compensation of up to 250,000 shares of the
Company's common stock (the "Renewal Term Shares") shall be paid to Consultant
David Wood in consideration of the services to be performed by Consultant
David Wood during such renewal term. In consultation with Consultant David
Wood, the Company shall determine the exact number of shares of the Company's
common stock to be paid to Consultant David Wood as Renewal Term Shares, after
considering the value of the services to be performed by Consultant David Wood
during such renewal term and the market value of shares of the Company's
common stock during the period immediately preceding the commencement of such
renewal term.
13. Independent Contractors. The Company and the Consultants agree that
the Consultants are independent contractors for all services performed and to
be 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.
14. Representations and Warranties of the Company. The Company
represents and warrants to, and covenants with, the Consultants as follows:
14.1 Corporate Status. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State
of Oregon.
14.2 Registration Statement of Form S-8. The Company shall provide
to the Consultants prior to the issuance and delivery of any Shares or Renewal
Term Shares a copy of each of the following: the SEC Forms; 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.
14.3 Securities Laws. The Company shall fully comply with any and
all federal and state securities laws, rules and regulations governing the
issuance of any of the Shares or Renewal Term Shares.
14.4 Reports with the SEC. Upon the filing and effectiveness of a
Form 10-SB, the Company will be 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 agrees that after the filing and effectiveness of such
From 10-SB, and during the term of this Agreement and any renewal term
hereunder, it will file with the SEC all reports required to be filed by it,
and such reports will be true and correct in every material respect.
15. Representation and Warranties of Consultants. Each of the
Consultants individually represents and warrants to, and covenants with, the
Company as follows:
15.1 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 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.
15.2 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 is fully capable of bearing the economic risk of loss of
his/her total investment in the Company.
15.3 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
Renewal Term Shares shall be services related to any "capital raising"
transaction.
15.4 Valid Obligation; No Conflicts. Execution of this Agreement
and performance of services hereunder by each Consultant constitutes 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.
16. Miscellaneous Provisions.
16.1 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.
16.2 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.
16.3 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 of 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.
16.4 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.
16.5 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.
16.6 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.
16.7 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.
16.8 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 Oregon. Venue for all purposes shall be deemed proper
within either: (a) Lake County, Florida; or (b) with respect to any action
relating to the rights or obligations hereunder of Consultant David Wood, the
County of Mecklenburg, North Carolina.
16.9 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.
16.10 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.
PRODUCTS, SERVICES & TECHNOLOGY CORP.
By: /s/ Mike McLaughlin
------------------------------
Mike McLaughlin, President
EXHIBIT "A"
(Consulting Agreement)
COUNTERPART SIGNATURE PAGE
THIS COUNTERPART SIGNATURE PAGE for that certain Consulting Agreement
among Products, Services & Technology Corp. and the undersigned Consultant is
executed as of the date set forth below.
CONSULTANT
Date: April 15th, 1997 By: /s/ David Wood
-------------------------
David Wood
Services Performed and to be Performed:
Development, implementation and maintenance of
investor relations and market awareness program, through
the following methods, without limitation: direct mail
information; national financial publications; e-mail and Internet
financial publications; radio and television programs;
newsletters; and regular press releases. Interface with stock-
holders and market-makers. Assist in preparation of Company
informational materials.
EXHIBIT "B"
(Consulting Agreement)
COUNTERPART SIGNATURE PAGE
THIS COUNTERPART SIGNATURE PAGE for that certain Consulting Agreement
among Products, Services & Technology Corp. and the undersigned Consultant is
executed as of the date set forth below.
CONSULTANT
Date: 4/15/97 By: /s/ Henry Hanson
----------------
Henry Hanson
Services Performed and to be Performed:
General corporate organizational and investor
relations consulting, as requested by the Company.
FIRST ADDENDUM TO
CONSULTING AGREEMENT
Products, Services & Technology Corp, an Oregon corporation ("PST"), and
David Wood, and Henry Hanson (collectively, the "Consultants"), entered into a
Consulting Agreement (the "Agreement") dated as of the 15th day of April,
1996, relating to the Consultants rendering of certain consulting services to
PST as requested by PST, in consideration for the grant by PST to the
Consultants of certain options to purchase common stock of PST pursuant to the
terms and conditions contained in the Agreement. PST and the Consultants
desire to amend certain provisions of the Agreement, to include as a new party
to the Agreement Joe Zachman, a Minnesota resident, with an address of 13353
42nd Street, N.E., St. Michael, Minnesota 55376, and to make other amendments
and modifications to the Agreement as mutually agreed upon by the parties
thereto.
Therefore, in consideration for the mutual covenants and agreements set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, PST, David Wood, Henry Hanson
and Joe Zachman have entered into this First Addendum to the Agreement (the
"Addendum"), and do hereby agree as follows:
1. Addition of Joe Zachman as Party to the Agreement. The parties
agree that Joe Zachman is hereby added as a party to the Agreement, and will
become subject to all rights and obligations thereunder upon his execution of
this Addendum. Joe Zachman expressly agrees to comply with all duties and
obligations relating to the Consultants under the Agreement, as if he were an
original party thereto.
2. Compensation. In consideration of the services performed and to
be performed by Joe Zachman under the Agreement and this Addendum, PST shall
issue to Joe Zachman 180,000 shares of the PST's common stock, in accordance
with the delivery and registration provisions set forth in Paragraph 4 and 5
of the Agreement.
In the event of any inconsistency between the Agreement and this
Addendum, this Addendum shall control. Except as modified by this Addendum,
the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Addendum which shall
be effective as of the 6th day of June, 1997.
Products, Services & Technology Corp.
An Oregon corporation
/s/ Michael McLaughlin
---------------------------------------
Michael McLaughlin, President
/s/ David Wood
---------------------------------------
David Wood
/s/ Henry Hansen
---------------------------------------
Henry Hansen
/s/ Joe Zachman
---------------------------------------
Joe Zachman