RETAINER AGREEMENT
This Retainer AGREEMENT is made by and between;
Brian Dvorak
3450 E. Russell Road
Las Vegas, Nevada 89120
E-mail:
(hereinafter referred to as "ATTORNEY"), and;
ShareCom, Inc.
c/o Brad Nordling
1251 N. Sherwood Ln.
Palatine, Illinois 60067-1884
E-mail:
aa Illinois Corporation (hereinafter referred to as "Client"). Collectively,
ATTORNEY and Client are hereinafter referred to as "THE PARTIES".
WITNESSETH
WHEREAS, ATTORNEY has expertise in the representation of companies relating
to federal securities and the preparation of information about private and
publicly traded companies and related services; and,
WHEREAS, Client is a publicly held company with its common stock currently
traded on the Over-the-Counter Bulletin Board ("OTC:BB"); and
WHEREAS, Client desires to employ and/or retain ATTORNEY to provide such
services as an independent contractor, and ATTORNEY is agreeable to such a
relationship and/or arrangement, and THE PARTIES desire a written document
formalizing and defining their relationship and evidencing the terms of their
agreement;
THEREFORE, in consideration of the mutual covenants contained herein and
other good and valuable consideration, it is agreed as follows.
DEFINITIONS AND INTERPRETATIONS
1. Captions and Section Numbers.
The headings and section references in this Retainer Agreement are for
convenience of reference only and do not form a part of this Retainer
Agreement and are not intended to interpret, define or limit the scope,
extent or intent of this Retainer Agreement or any provisions thereof.
2. Extended Meanings.
The words "hereof", "herein", "hereunder", "hereto" and similar
expressions used in any clause, paragraph or section of this Retainer
Agreement and any Addendum and/or Exhibit attached to this Retainer Agreement
shall relate to the whole of this Retainer Agreement including any attached
Addendum and/or Exhibit and not to that clause, paragraph or section only,
unless otherwise expressly provided.
3. Number and Gender.
In this Retainer Agreement words importing the masculine gender include
the feminine or neuter gender and words in the singular include the plural,
and vice versa.
4. Section References and Schedules.
Any reference to a particular "article", "section", "paragraph" or other
subdivision of this Retainer Agreement and any reference to a schedule,
addendum or exhibit by name, number and/or letter shall mean the appropriate
schedule, addendum or exhibit attached to this Retainer Agreement and by such
reference is incorporated into and made part of this Retainer Agreement.
AGREEMENT
5. Appointment.
Client hereby appoints ATTORNEY as its counsel and hereby retains and
employs ATTORNEY upon the terms and conditions of this Retainer Agreement.
6. Engagement.
ATTORNEY hereby accepts said Retainer Agreement and agrees to represent
Client as further described below and subject to the further provisions of
this Retainer Agreement.
7. Authority and Description of Services.
During the term of this Retainer Agreement ATTORNEY shall furnish
various professional services and advice as specifically requested by Mr.
Brad Nordling, who is an authorized representative of Client, and holds the
position as a major shareholder of Client. Said professional services and
advice shall relate to those services, items and/or subjects described as
follows:
ATTORNEY shall act, generally through Brian Dvorak, as mergers and
acquisitions counsel to assist Client in preparing the necessary
documentation for offering the Client's securities in a transaction exempt
from federal registration when utilized in a merger or acquisition.
8. Term of Agreement.
This Retainer Agreement shall become effective upon execution hereof and
shall continue thereafter and remain in effect until August 1, 2002. It is
expressly acknowledged and agreed by and between THE PARTIES hereto that
ATTORNEY shall not be obligated to provide any services until a specified
retainer (deposit, initial fee, down-payment) of 600,000 shares of ShareCom
common stock, valued at the bid price per share as of the date of this
Agreement ($0.25), registered pursuant to S-8.
9. Where Services Shall Be Performed.
ATTORNEY services shall be performed at the main office location of
ATTORNEY or other such designated location as ATTORNEY and Client agree are
the most advantageous for the work to be performed.
10. Limitations on Services.
THE PARTIES hereto recognize that certain responsibilities and
obligations are imposed by federal and state securities laws and by the
applicable rules and regulations of stock exchanges, the National Association
of Securities Dealers, in house due diligence or compliance departments of
brokerage houses, etc. Accordingly, ATTORNEY agrees as follows:
a. ATTORNEY shall NOT release any financial or other information or
data about Client without the consent and approval of Client.
c. ATTORNEY shall NOT release any information or data about Client to
any selected or limited person, entity or group if ATTORNEY is aware that
such information or data has not been generally released or promulgated and
Client requests in writing that said information or data is not to be so
released or promulgated.
11. Duties of Client.
The duties of Client are as follows:
a. Client shall supply ATTORNEY on a regular and timely basis with all
approved data and information about Client its management, products and
operations and Client shall be responsible for advising ATTORNEY of any
facts, which would affect the accuracy of any prior data and information
previously supplied to ATTORNEY so that ATTORNEY may take corrective action.
b. Client shall promptly supply ATTORNEY with all the information
required by the Due Diligence Checklist set forth in Addendum A.
c. ATTORNEY shall assist in negotiations and where necessary drafting
of merger and acquisition documentation.
d. In that ATTORNEY relies on information provided by Client for a
substantial part of its preparations and documentation, Client must represent
that said information is neither false nor misleading, and agrees to hold
harmless and indemnify ATTORNEY for any breach of these representations and
covenants, and Client agrees to hold harmless and indemnify ATTORNEY for any
claims relating to the purchase and/or sale of Client securities occurring
out of, or in connection with, ATTORNEY's relationship with Client, including
without limitation, reasonable attorneys' fees and other costs arising out of
any such claims.
e. Because ATTORNEY shall rely on such information to be supplied it
by Client, all such information shall be true, accurate, complete and not
misleading, in all respects.
f. In that ATTORNEY shareholders, officers, employees and/or members
of their families may hold a position in and engage in transactions with
respect to Client securities, and in light of the fact that ATTORNEY imposes
restrictions on such transactions to guard against trading on the basis of
material non-public information, Client shall contemporaneously notify
ATTORNEY if any information or data being supplied to ATTORNEY has not been
generally released or promulgated.
g. Client shall act diligently and promptly in reviewing materials
submitted to it by ATTORNEY to enhance timely distribution of the materials
and shall inform ATTORNEY of any inaccuracies contained therein within a
reasonable time prior to the projected or known publication date.
12. Representation and Indemnification.
Client and ATTORNEY represent and/or warrant the following.
a. Client shall be deemed to make a continuing representation of the
accuracy of any and all material facts, materials, information and data,
which it supplies to ATTORNEY. Client acknowledges its awareness that
ATTORNEY shall rely on such continuing representation in disseminating such
information and otherwise performing its functions as counsel to Client.
b. ATTORNEY, in the absence of notice in writing from Client, shall
rely on the continuing accuracy of materials, information and data supplied
by Client.
c. Client hereby agrees to hold harmless and indemnify ATTORNEY
against any claims, demands, suits, loss, damages, etc., arising out of
ATTORNEY's reliance upon the instant accuracy and continuing accuracy of such
facts, materials, information and data unless ATTORNEY has been negligent in
performing its duties and obligations hereunder.
d. Client shall cooperate fully and timely with ATTORNEY to enable
ATTORNEY to perform its duties and obligations under this Retainer Agreement.
e. The execution and performance of this Retainer Agreement by Client
has been duly authorized by the Board of Directors of Client in accordance
with applicable law and to the extent required by the requisite number of
shareholders of Client.
f. The execution and performance of this Retainer Agreement by
ATTORNEY has been duly authorized by the Board of Directors of ATTORNEY in
accordance with applicable law and to the extent required by the requisite
number of shareholders of ATTORNEY.
g. The performance by Client of this Retainer Agreement shall not
violate any applicable court decree or order, law or regulation, nor shall it
violate any provision of the organizational documents and/or bylaws of Client
or any contractual obligation by which Client may be bound.
h. The performance by ATTORNEY of this Retainer Agreement shall not
violate any applicable court decree or order, law or regulation, nor shall it
violate any provision of the organizational documents and/or bylaws of
ATTORNEY or any contractual obligation by which ATTORNEY may be bound.
i. Client's activities pursuant to this Retainer Agreement or as
contemplated by this Retainer Agreement do not constitute and shall not
constitute acting as a securities broker or dealer under federal or state
securities laws; any contract between Client and a potential investor in
Client shall be such that Client would be acting merely as a finder or
consultant with respect to such prospective investor obligations under this
Agreement.
j. ATTORNEY's activities pursuant to this Retainer Agreement or as
contemplated by this Retainer Agreement are specifically limited to
ATTORNEY's position as counsel to Client.
k. Access to corporate documents: The minute books of Client shall be
made available to ATTORNEY and reflect in all material respect the meetings
and actions of the directors and stockholders of Client, since the time of
its incorporation, and reflect all transactions referred to in such minutes
accurately in all material respects.
l. Absence of undisclosed liabilities: Client has no material
outstanding claims, liabilities, obligations or indebtedness, contingent or
otherwise, whether asserted or unassorted, except as set forth in Client's
latest Balance Sheet, or referred to in any of the notes thereto. Client is
not in default in respect to the terms or conditions of any indebtedness.
m. Litigation: There is no action, suit, investigation, customer
complaint, claim or proceeding at law or in equity by or before any
arbitrator, governmental instrumentality or other agency now pending or, to
Client's knowledge, threatened against or affecting Client, nor, to the best
of Client's knowledge, does there existing any basis therefor. Client is not
subject to any judgement, order, writ, injunction or decree of any federal,
state, municipal or other governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign. Client agrees to promptly
notify ATTORNEY of the commencement of any litigation or proceedings against
Client or any of its respective officers or directors in connection with or
related to the business of Client.
n. Non-defaults; non-contravention: Except as set forth in the
Disclosure Schedule, Client is not in default in the performance or
observance of any obligation (1) under its Certificate of Incorporation, as
amended, or it By-Laws, or any indenture, mortgage, contract, purchase order
or other agreement or instrument to which Client is a party or by which it or
any of its property is bound or affected; or (2) to any order, writ,
injunction or decree of any court of any federal, state, municipal or other
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, except for the defaults as would not,
individually or in the aggregate, result in a material adverse effect on the
business or operations of Client as a whole, nor which after notice or the
lapse of time, would constitute, a material default under any of the
foregoing.
o. Employment of officers, employees and consultants: To Client's
knowledge, no third party may assert any valid claim against Client to the
(1) continued employment by, or association with, Client of any of its
present officers, employees or consultants, or (2) the use by Client of any
information which Client would be prohibited from using under any prior
agreements or arrangements or any laws applicable to unfair competition,
trade secrets or proprietary information.
p. Disclosure: Neither this Agreement nor any other document,
certificate or written statement to be furnished to potential Market Markers,
the SEC, NASD, or Standard and Poors, by or on behalf of Client in connection
with the transactions contemplated hereby contains or shall contain any
untrue statement of a material fact or omits or shall omit to state a
material fact necessary in order to make the statement contained herein or
therein not misleading. There is no fact known to Client which adversely
affects the business operations, affairs, prospects, conditions, properties
or assets of Client (hereinafter "Material Facts") which has not been set
forth in this Agreement. To the extent Material Facts become known to Client,
subsequent to the date hereof and up and through the termination of this
Agreement, such facts shall be set forth in writing to ATTORNEY.
13. Compensation.
Compensation payable to ATTORNEY in the sum of 600,000 shares of
ShareCom common stock shall be paid concurrent with the execution of
this Agreement.
14. Billing and Payment.
The monthly fees or payments shall be considered paid in full without
billing. Billing and payments for optional services shall be agreed on a case
by case basis. Client acknowledges and agrees that deposits, initial
payments, down payments, partial payments, payments for special services,
monthly fees or monthly payments shall be by wire transfer to ATTORNEY's bank
account upon execution of any agreement(s), or, upon payment due date in the
case of monthly fees or monthly payments, or, in the case of optional
services by the first day of the preceding month that work is scheduled to be
performed, unless expressly provided otherwise in writing, and that if such
funds are not received by ATTORNEY by said date Client shall pay to ATTORNEY
an additional operations charge equal to 1% for each month said funds are not
received. ATTORNEY has a policy that in the event a payment is not made on
the date due, then in that event work shall be suspended, without notice,
until such time as arrangements have been made for payment.
15. ATTORNEY as an Independent Contractor.
ATTORNEY shall provide said services as an independent contractor, and
not as an employee of Client or of any client affiliated with Client.
16. Trade Secrets and Inventions.
ATTORNEY shall treat as proprietary any and all information belonging to
Client, it's affiliates or any third parties disclosed to ATTORNEY in the
course of the performance of ATTORNEY's services.
17. Inside Information - Securities Violations.
In the course of the performance of this Agreement, it is expected that
specific sensitive information concerning the operations of Client's business
and/or affiliate companies shall come to the attention and knowledge of
ATTORNEY. In such event ATTORNEY shall not divulge, discuss or otherwise
reveal such information to any third parties.
18. Disclosures.
ATTORNEY shall disclose to Client any outside activities or interests,
including ownership or participation in the development of prior inventions,
that conflict or may conflict with the best interests of Client. It is
mutually understood that prompt disclosure is required under this paragraph
if the activity or interest is related, directly or indirectly, to any
activity that ATTORNEY may be involved with on behalf of Client.
19. Termination of Agreement.
This Retainer Agreement may not be terminated by either party prior to
the expiration of the term provided in paragraph 8 above, except as follows.
a. Upon the bankruptcy or liquidation of the other party, whether voluntary
or involuntary,
b. Upon the other party taking the benefit of any insolvency law,
c. Upon the other party having or applying for a receiver appointed for
either party,
d. For cause, and/or
e. As provided for in paragraph 20, immediately below.
20. Early Termination.
In the event Client fails or refuses to cooperate with ATTORNEY, fails
or refuses to make timely payment of the compensation set forth in this
Agreement, ATTORNEY shall have the right to terminate any further performance
under this Agreement. In such event, and upon notification thereof, all
compensation shall become immediately due and payable and/or deliverable, and
ATTORNEY shall be entitled to receive and retain the funds or other
consideration as liquidated damages and not as a penalty, in lieu of all
other remedies. THE PARTIES hereby acknowledge and agree that it would be too
difficult currently to determine the exact extent of ATTORNEY's damages, but
that the receipt and retention of such compensation is a reasonable present
estimate of such damage.
21. Notices.
All notices hereunder shall be in writing and addressed to the party at
the address herein set forth, or at such other address which notice pursuant
to this section may be given, and shall be given by either certified mail,
express mail or other overnight courier service. Notices shall be deemed
given upon the earlier of actual receipt or three (3) business days after
being mailed or delivered to such courier service. Any notices to be given
hereunder shall be effective if executed by and/or sent by the attorneys for
THE PARTIES giving such notice and, in connection therewith, THE PARTIES and
their respective counsel agree that in giving such notice such counsel may
communicate directly in writing with such party to the extent necessary to
give such notice.
22. Attorney Fees
In the event either party is in default of the terms or conditions of
this Retainer Agreement and legal action is initiated or suit be entered as a
result of such default, the prevailing party shall be entitled to recover all
costs incurred as a result of such default including reasonable attorney
fees, expenses and court costs through trial, appeal and to final
disposition.
23. Return of Records.
Upon termination of this Agreement, ATTORNEY shall deliver all records,
notes, data, memorandum, models and equipment of any nature that are in the
control of ATTORNEY that are the property of or relate to the business of
Client, except that ATTORNEY shall retain one copy of printed material for
retention in the ATTORNEY library.
24. Disclaimer By ATTORNEY.
ATTORNEY shall be the preparer of certain materials and ATTORNEY makes
no representation to Client or others that, (a) its efforts or services will
result in any enhancement to Client's value, (b) the price of Client's to be
publicly traded securities will increase, (c) any person will purchase
Client's securities (d) a merger or acquisition will ever be complete or (e)
any investor will lend money to and/or invest in or with Client.
25. Limitation ATTORNEY Liability.
In the event ATTORNEY fails to perform its work or services hereunder,
its entire liability to Client shall not exceed the lessor of (a) the amount
of cash compensation ATTORNEY has received from Client under paragraph 13
above, (b) the amount of cash compensation ATTORNEY has received from Client
under any provision herein or (c) the actual damage to Client as a result of
such non-performance. In no event shall ATTORNEY be liable to Client for any
indirect, special or consequential damages, nor for any claim against Client
by any person or entity arising from or in any way related to this Agreement.
26. Ownership of Materials.
All right, title and interest in and to materials to be produced by
ATTORNEY in connection with this Retainer Agreement and other services to be
rendered under said Agreement shall be and remain the sole and exclusive
property of ATTORNEY, except in the event Client performs fully and timely
its obligations hereunder Client shall be entitled to receive, upon request,
one (1) copy of all such materials, and shall be entitled to the
non-exclusive right to use all such materials.
27. Agreement Not To Hire.
Client understands and appreciates that ATTORNEY invests a tremendous
amount of time, energy, resources and expertise in the training and education
of its employees and subcontractors to be able to provide the very services
Client requires. Further, Client understands that in the event an employee or
subcontractor of ATTORNEY is enticed to leave, then ATTORNEY shall be damaged
in an amount THE PARTIES are not capable of calculating at the present time.
Therefore, Client agrees not to offer employment or subcontractor status to
any employee or subcontractor of ATTORNEY, nor to allow any employee,
officer, director, shareholder or consultant of Client to offer such
employment or subcontractor status with Client or any other Client, concern,
venture or entity with whom officers, directors or consultants of Client are
employed, associated or hold a financial stake in, for a period of three (3)
years from the date of expiration or termination hereof. Further, in the
event an employee or subcontractor of ATTORNEY leaves the employ of,
dissolves or breaks association with ATTORNEY and subsequently establishes
employment or an association of any kind with another investor relations,
investment banking or other type of competing firm of ATTORNEY, Client agrees
not to do business with such other investor relations or competing firm of
ATTORNEY for a period of three (3) years from the date of expiration or
termination hereof.
28. Miscellaneous.
a. The effective date of representation shall be no later than the
date of execution by THE PARTIES of this Retainer Agreement.
b. Currency: In all instances, references to dollars shall be deemed
to be United States Dollars.
c. Stock: In all instances, references to stock shall be deemed to be
issued pursuant to S-8 Registration.
29. Exclusion With Respect To Partnership.
THE PARTIES agree that in no way shall this Retainer Agreement be
construed as being an act of partnership between THE PARTIES hereto and that
no party hereto shall have, as a result of the execution of this Retainer
Agreement, any liability for the commitments of any other party of any type,
kind, son or variety.
30. Travel Compensation Reimbursement.
In the course of ATTORNEY providing services as necessary hereunder on
the behalf of or for Client during the term of this Retainer Agreement,
Client shall pay to, or reimburse, ATTORNEY for any travel expenses incurred
by ATTORNEY that are not specifically described elsewhere herein, provided
that Client has been notified in advance by ATTORNEY of the nature and of the
cost of any such required travel and the amount of travel compensation and/or
reimbursement related thereto. Travel expenses shall be deemed to include,
but not be limited to, hotel expenses, airline fares, taxi fares, rental
fees, toll road fees, reasonable food expenses and reasonable gratuities
related thereto. Client shall have the right to book airline and hotel
reservations, etc. itself on behalf of ATTORNEY within five (5) days upon
notice for the requirement thereof from ATTORNEY.
31. Time Is Of The Essence.
Time is hereby expressly made of the essence of this Retainer Agreement
with respect to the performance by THE PARTIES of their respective
obligations hereunder.
32. Inurement.
This Retainer Agreement shall inure to the benefit of and be binding
upon THE PARTIES hereto and their respective heirs, executors,
administrators, personal representatives, successors, assigns and any
addendum attached hereto.
33. Entire Agreement.
This Retainer Agreement contains the entire agreement of THE PARTIES. It
is declared by THE PARTIES that there are no other oral or written agreements
or understanding between them affecting this Agreement or relating to the
business of ATTORNEY. This Agreement supersedes all previous agreements
between ATTORNEY and Client.
34. Amendments
This Agreement may be modified or amended provided such modifications or
amendments are mutually agreed upon by and between THE PARTIES hereto and
that said modifications or amendments are made only by an instrument in
writing signed by THE PARTIES or an oral agreement to the extent that THE
PARTIES carry it out.
35. Waivers.
No waiver of any provision or condition of this Agreement shall be valid
unless executed in writing and signed by the party to be bound thereby, and
then only to the extent specified in such waiver. No waiver of any provision
or condition of this Agreement shall be construed as a waiver of any other
provision or condition of this Agreement, and no present waiver of any
provision or condition of this Agreement shall be construed as a future
waiver of such provision or condition.
36. Non-waiver.
The failure of either party, at any time, to require any such
performance by any other party shall not be constructed as a waiver of such
right to require such performance, and shall in no way affect such party's
right to require such performance and shall in no way affect such party's
right subsequently to require a full performance hereunder.
37. Construction of Agreement.
Each party and its counsel have participated fully in the review and
revision of this Agreement. Any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not apply in
the interpretation of this Agreement.
38. Non-Circumvention Agreement.
Client agrees, represents and warrants hereby that it shall not
circumvent ATTORNEY with respect to any individual or investor introduced by
ATTORNEY to Client nor with respect to any transaction, merger, acquisition
or other business opportunity proposed by, assisted with or otherwise
promoted by ATTORNEY for the benefit of Client pursuant to the terms with
ATTORNEY for the purpose of, without limitation, this Agreement and for a
period of three (3) years from the date of execution by THE PARTIES of this
Agreement.
39. Applicable Law.
THIS AGREEMENT IS EXECUTED PURSUANT TO AND SHALL BE INTERPRETED AND
GOVERNED FOR ALL PURPOSES BY THE LAWS OF THE STATE OF NEVADA FOR
WHICH THE COURTS IN LAS VEGAS, NEVADA SHALL HAVE JURISDICTION
WITHOUT GIVING EFFECT TO THE CHOICE OR LAWS OR CONFLICT OF LAWS
RULES THEREOF OR OF ANY STATE.
40. Severability.
If any provision of this Agreement shall be held to be contrary to law,
void, invalid or unenforceable for any reason, such provision shall be deemed
severed from this Retainer Agreement and the remaining provisions of this
Agreement shall continue to be valid and enforceable. If a Court finds that
any provision of this Agreement is contrary to law, void, invalid or
unenforceable and that by limiting such provision it would become valid and
enforceable, then such provision shall be deemed to be written, construed and
enforced as so limited.
41. Acceptance by ATTORNEY.
This Agreement is not valid or binding upon ATTORNEY unless and until
executed by its Chief Executive Officer, Chief Operating Officer duly
authorized executive officer of ATTORNEY at its home office in San Diego,
California.
43. Execution In Counterpart: Telecopy-Fax.
This Retainer Agreement may be executed in counterparts, not
withstanding the date or dates upon which this Retainer Agreement is executed
and delivered by any of THE PARTIES, and shall be deemed to be an original
and all of which shall constitute one and the ATTORNEY Agreement effective as
of the reference date first written below. The fully executed telecopy (fax)
version of this Retainer Agreement shall be construed by all parties hereto
as an original version of said Retainer Agreement.
44. Disclaimer
Brian Dvorak, as counsel to the Client, is licensed to practice law in
the State of Nevada only, and in the case of any legal opinions, court
filings, or operations requiring counsel from a particular state, then in
that event such counsel shall be retained by the Client, at a cost to be
incurred by Client.
IN WITNESS WHEREOF, THE PARTIES hereto have set forth their hands and
seal in execution of this Retainer Agreement made this 3rd day of August
2001, by and between;
For and in behalf of Client: For and in behalf of ATTORNEY:
ShareCom, Inc. Brian Dvorak
By:/s/ Brad Nordling By:/s/ Brian Dvorak
Brad Nordling, President Brian Dvorak
Addendum A: Due Diligence Schedule.