U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K/A
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (date of earliest event reported): September 1, 2005
RMD TECHNOLOGIES, INC.
(Exact Name of Company as Specified in Its Charter)
California 0-51109 72-1530833
(State or Other Jurisdiction (Commission File Number) (I.R.S. Employer
of Incorporation) Identification No.)
308 West 5th Street, Holtville, California 92250
(Address of Principal Executive Offices) (Zip Code)
Company's telephone number, including area code: (760) 356-2039
Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the Company under any
of the following provisions (See General Instruction A.2 below):
[ ] Written communications pursuant to Rule 425 under the
Securities Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the
Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-
2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-
4(c) under the Exchange Act (17 CFR 240.13e-4(c))
ITEM 5.02 DEPARTURE OF DIRECTORS OR PRINCIPAL OFFICERS; ELECTION OF
DIRECTORS; APPOINTMENT OF PRINCIPAL OFFICERS
On September 1, 2005, Arthur De Joya was appointed as the chief
financial officer of the Company. Mr. De Joya, age 39, has over 12
years of experience in both public and private accounting mainly
working with publicly traded companies. His experience in the
private sector includes serving as financial advisor and chief
financial officer for various publicly traded companies. From April
2003 to the present, Mr. De Joya has worked as a certified public
accountant, first at his firm of De Joya & Company, Inc. and then at
De Joya Griffith & Company, LLC, an accounting firm located in
Henderson, Nevada. Previously, Mr. De Joya was a partner with L.L.
Bradford & Company, LLC, an accounting firm in Las Vegas, Nevada, for
approximately 5 years. Prior to L.L. Bradford & Company, LLC, Mr. De
Joya was employed with KPMG LLP, working with many large publicly
traded companies.
Mr. De Joya received his B.S. and B.A. degrees from the
University of Nevada, Las Vegas and is a Certified Public Accountant
licensed in the State of Nevada. He is a member of the American
Institute of Certified Public Accountants and Nevada Society of
Certified Public Accountants. Mr. De Joya also currently serves as
the chief financial officer of GameZnFlix, Inc., another publicly
traded and reporting company; he assumed this position in July 2004.
On September 8, 2005, Mr. De Joya and the Company consummated a
consulting services agreement covering his appointment (see Exhibit
10). In his capacity as chief financial officer, he will be an
independent contractor for the Company. Under the terms of this
agreement, he will be paid a total of $60,000 in the following
manner: (a) $2,000 to be paid in cash monthly; and (b) $36,000 to be
paid in the form of the Company's common stock. The monthly fee will
increase by 10% beginning on each anniversary date of this agreement.
On February 28, 2006, Mr. De Joya and the Company consummated an
amended and restated consulting services agreement. Under this
agreement, the payment provisions were amended so that the balance of
the $36,000.00 is to be deferred until the end of the term of this
agreement, rather than paid in Company common stock. The $36,000 is
to accrue ratably on a monthly basis over the next twelve months from
the effective date.
ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS
Exhibits.
Exhibits included are set forth in the Exhibit Index pursuant
to Item 601 of Regulation S-B.
SIGNATURE
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the Company has duly caused this
report to be signed on its behalf by the undersigned, thereunto duly
authorized.
RMD Technologies, Inc.
Date: May 9, 2006 By: /s/ Patrick A. Galliher
Patrick A. Galliher, President
EXHIBIT INDEX
Number Description
10 Amended and Restated Consulting Services Agreement between
the Company, on the one hand, and De Joya & Company, Inc.
and Arthur De Joya, on the other hand, dated February 28,
2006 (filed herewith).
EX-10
AMENDED AND RESTATED CONSULTING SERVICES AGREEMENT
AMENDED AND RESTATED CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement ("Agreement"), dated
September 1, 2005 and further amended and restated on February 28,
2006 is made by and between De Joya & Company, Inc., a Nevada
corporation, and its representative Arthur de Joya (collectively
referred to as the "Consultant"), whose address is 361 Wiseton
Avenue, Las Vegas, Nevada 89123, and RMD Technologies, Inc., a
California corporation ("Client"), having its principal place of
business at 308 West 5th Street, Holtville, CA 92250.
WHEREAS, Consultant has extensive background and knowledge in
the area of federal securities laws and regulations related to
financial and accounting issues and accounting knowledge;
WHEREAS, Consultant desires to be engaged by Client to provide
information, evaluation and consulting services to the Client in his
area of knowledge and expertise on the terms and subject to the
conditions set forth herein;
WHEREAS, Client is a publicly held corporation and desires to
further develop its business; and
WHEREAS, Client desires to engage Consultant to provide
information, evaluation and consulting services to the Client in his
area of knowledge and expertise on the terms and subject to the
conditions set forth herein.
NOW, THEREFORE, in consideration for those services Consultant
provides to Client, the parties agree as follows:
1. Services of Consultant.
Provide services related to and customary to that of a person
serving in Chief Financial Officer position, as well as, services
related to Securities and Exchange Commission filings and assist in
such filings, and review monthly financial information for the next
12 months commencing on September 1, 2005.
2. Consideration.
Client agrees to pay Consultant, as his fee and as consideration
for services provided a total of Sixty Thousand Dollars ($60,000.00)
in the following manner: (1) Two Thousand Dollars ($2,000.00) to be
paid in cash monthly and (2) Thirty Six Thousand Dollars ($36,000.00)
to be deferred until the end of the term of this Agreement. Monthly
fee of $2,000 shall be due and payable not later than the fifteenth
(15th) of each month, beginning with the first payment due on
September 15, 2005. Such monthly fees shall increase by ten
percent (10%) beginning on each anniversary date of the Agreement.
The $36,000 shall accrue ratably on a monthly basis over the next
twelve months.
3. Confidentiality.
Each party agrees that during the course of this Agreement,
information that is confidential or of a proprietary nature may be
disclosed to the other party, including, but not limited to, product
and business plans, software, technical processes and formulas,
source codes, product designs, sales, costs and other unpublished
financial information, advertising revenues, usage rates, advertising
relationships, projections, and marketing data ("Confidential
Information"). Confidential Information shall not include information
that the receiving party can demonstrate (a) is, as of the time of
its disclosure, or thereafter becomes part of the public domain
through a source other than the receiving party, (b) was known to the
receiving party as of the time of its disclosure, (c) is
independently developed by the receiving party, or (d) is
subsequently learned from a third party not under a confidentiality
obligation to the providing party.
4. Late Payment.
Client shall pay to Consultant all fees within fifteen (15) days
of the due date. Failure of Client to finally pay any fees within
fifteen (15) days after the applicable due date shall be deemed a
material breach of this Agreement, justifying suspension of the
performance of the "Services" provided by Consultant, will be
sufficient cause for immediate termination of this Agreement by
Consultant. Any such suspension will in no way relieve Client from
payment of fees, and, in the event of collection enforcement, Client
shall be liable for any costs associated with such collection,
including, but not limited to, legal costs, attorneys' fees, courts
costs, and collection agency fees.
5. Indemnification.
(a) Client.
Client agrees to indemnify, defend, and shall hold harmless
Consultant and /or his agents, and to defend any action brought
against said parties with respect to any claim, demand, cause of
action, debt or liability, including reasonable attorneys' fees to
the extent that such action is based upon a claim that: (i) is true,
(ii) would constitute a breach of any of Client's representations,
warranties, or agreements hereunder, or (iii) arises out of the
negligence or willful misconduct of Client, or any Client content to
be provided by Client and does not violate any rights of third
parties, including, without limitation, rights of publicity, privacy,
patents, copyrights, trademarks, trade secrets, and/or licenses.
(b) Consultant.
Consultant agrees to indemnify, defend, and shall hold harmless
Client, its directors, employees and agents, and defend any action
brought against same with respect to any claim, demand, cause of
action, debt or liability, including reasonable attorneys' fees, to
the extent that such an action arises out of the gross negligence or
willful misconduct of Consultant.
(c) Notice.
In claiming any indemnification hereunder, the indemnified party
shall promptly provide the indemnifying party with written notice of
any claim, which the indemnified party believes falls within the
scope of the foregoing paragraphs. The indemnified party may, at its
expense, assist in the defense if it so chooses, provided that the
indemnifying party shall control such defense, and all negotiations
relative to the settlement of any such claim. Any settlement intended
to bind the indemnified party shall not be final without the
indemnified party's written consent, which shall not be unreasonably
withheld.
6. Limitation of Liability.
Consultant shall have no liability with respect to Consultant's
obligations under this Agreement or otherwise for consequential,
exemplary, special, incidental, or punitive damages even if
Consultant has been advised of the possibility of such damages. In
any event, the liability of Consultant to Client for any reason and
upon any cause of action, regardless of the form in which the legal
or equitable action may be brought, including, without limitation,
any action in tort or contract, shall not exceed ten percent (10%) of
the fee paid by Client to Consultant for the specific service
provided that is in question.
7. Termination and Renewal.
(a) Term.
This Agreement shall become effective as of September 1, 2005
and shall terminate three (3) years thereafter. Unless otherwise
agreed upon in writing by Consultant and Client, this Agreement shall
not automatically be renewed beyond its Term.
(b) Termination.
Either party may terminate this Agreement on thirty (30)
calendar days written notice, or if prior to such action, the other
party materially breaches any of its representations, warranties or
obligations under this Agreement. Except as may be otherwise provided
in this Agreement, such breach by either party will result in the
other party being responsible to reimburse the non-defaulting party
for all costs incurred directly as a result of the breach of this
Agreement, and shall be subject to such damages as may be allowed by
law including all attorneys' fees and costs of enforcing this
Agreement.
(c) Termination and Payment.
Any termination of this Agreement by Client before the
expiration of its term shall require a ninety days notice.
Otherwise, termination mutually agreed to by both parties or
expiration of this Agreement, Client shall pay all unpaid and
outstanding fees through the effective date of termination or
expiration of this Agreement. And upon such termination, Consultant
shall provide and deliver to Client any and all outstanding services
due through the effective date of the termination. Furthermore, upon
termination for any reason, the Consultant shall be entitled to the
unrestricted shares earned up through the date of termination.
8. Miscellaneous.
(a) Independent Contractor.
This Agreement establishes an "independent contractor"
relationship between Consultant and Client. Accordingly, consultant
is obligated to render services to Client for a maximum of fifteen
(15) hours per month during the term of the Agreement, which such
hours can be performed at any time during each month.
(b) Rights Cumulative; Waivers.
The rights of each of the parties under this Agreement are
cumulative. The rights of each of the parties hereunder shall not be
capable of being waived or varied other than by an express waiver or
variation in writing. Any failure to exercise or any delay in
exercising any of such rights shall not operate as a waiver or
variation of that or any other such right. Any defective or partial
exercise of any of such rights shall not preclude any other or
further exercise of that or any other such right. No act or course
of conduct or negotiation on the part of any party shall in any way
preclude such party from exercising any such right or constitute a
suspension or any variation of any such right.
(c) Benefit; Successors Bound.
This Agreement and the terms, covenants, conditions, provisions,
obligations, undertakings, rights, and benefits hereof, shall be
binding upon, and shall inure to the benefit of, the undersigned
parties and their heirs, executors, administrators, representatives,
successors, and permitted assigns.
(d) Entire Agreement.
This Agreement contains the entire agreement between the parties
with respect to the subject matter hereof. There are no promises,
agreements, conditions, undertakings, understandings, warranties,
covenants or representations, oral or written, express or implied,
between them with respect to this Agreement or the matters described
in this Agreement, except as set forth in this Agreement. Any such
negotiations, promises, or understandings shall not be used to
interpret or constitute this Agreement.
(e) Assignment.
Neither this Agreement nor any other benefit to accrue hereunder
shall be assigned or transferred by either party, either in whole or
in part, without the written consent of the other party, and any
purported assignment in violation hereof shall be void.
(f) Amendment.
This Agreement may be amended only by an instrument in writing
executed by all the parties hereto.
(g) Severability.
Each part of this Agreement is intended to be severable. In the
event that any provision of this Agreement is found by any court or
other authority of competent jurisdiction to be illegal or
unenforceable, such provision shall be severed or modified to the
extent necessary to render it enforceable and as so severed or
modified, this Agreement shall continue in full force and effect.
(h) Section Headings.
The Section headings in this Agreement are for reference
purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(i) Construction.
Unless the context otherwise requires, when used herein, the
singular shall be deemed to include the plural, the plural shall be
deemed to include each of the singular, and pronouns of one or no
gender shall be deemed to include the equivalent pronoun of the other
or no gender.
(j) Further Assurances.
In addition to the instruments and documents to be made,
executed and delivered pursuant to this Agreement, the parties hereto
agree to make, execute and deliver or cause to be made, executed and
delivered, to the requesting party such other instruments and to take
such other actions as the requesting party may reasonably require to
carry out the terms of this Agreement and the transactions
contemplated hereby.
(k) Notices.
Any notice which is required or desired under this Agreement
shall be given in writing and may be sent by personal delivery or by
mail (either a. United States mail, postage prepaid, or b. Federal
Express or similar generally recognized overnight carrier), addressed
as follows (subject to the right to designate a different address by
notice similarly given):
To Client:
Patrick Galiher, President
RMD Technologies, Inc.
308 West 5tf Street
Holtville, CA 92250
To Consultant:
De Joya & Company, Inc.
361 Wiseton Avenue
Las Vegas, Nevada 89123
(l) Governing Law.
This Agreement shall be governed by the interpreted in
accordance with the laws of the State of Nevada without reference to
its conflicts of laws rules or principles. Each of the parties
consents to the exclusive jurisdiction of the federal courts of the
State of California in connection with any dispute arising under this
Agreement and hereby waives, to the maximum extent permitted by law,
any objection, including any objection based on forum non coveniens,
to the bringing of any such proceeding in such jurisdictions.
(m) Consents.
The person signing this Agreement on behalf of each party hereby
represents and warrants that he has the necessary power, consent and
authority to execute and deliver this Agreement on behalf of such party.
(n) Survival of Provisions.
The provisions contained in paragraphs 3, 5, 6, and 8 of this
Agreement shall survive the termination of this Agreement.
(o) Execution in Counterparts.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original and all of which together
shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and have agreed to and accepted the terms herein on the date
written above.
RMD Technologies, Inc.
By: /s/ Patrick Galliher
Patrick Galliher
De Joya & Company, Inc.
By: /s/ Arthur De Joya
Arthur De Joya