SAN DIEGO TORREY HILLS CAPITAL
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CONSULTING AGREEMENT
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AGREEMENT, made this 5th day of May, 2003 by and between T & G2
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Technologies, Corp., (hereinafter the "Company") having its principal place of
business at 65 LaGrande Avenue, Berkeley Heights, NJ 07922, and San Diego Torrey
Hills Capital, Inc., (hereinafter the "Consultant"), having its principal place
of business at 2190 Carmel Valley Road, Del Mar, California 92014. The Agreement
will become effective on the first day the consultation commences.
WHEREAS, the Company desires to retain the Consultant for consulting
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services in connection with the Company's business affairs on a non-exclusive
basis, and the Consultant is willing to undertake to provide such services as
hereinafter fully set forth:
WITNESSETH
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NOW THEREFORE, the parties agree as follows:
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1. Term: Six (6) months from the date hereof, provided, however that this
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Agreement may be cancelled by either party with written notice
provided seven (7) days prior to the cancellation date.
2. Nature of Services: The Company hereby engages the Consultant to
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render the services hereinafter described during the term hereof (its
being understood and agreed that the Consultant is free tender the
same or similar services to any other entity selected by it):
(a) Consult with the Company concerning on-going strategic corporate
planning and long term investment policies, including any
revision of the Company's business plan.
(b) Render advice with respect to leasing and/or other financing
arrangements.
(c) Assist in negotiation of contracts with suppliers and major
customers when so required by the Company.
(d) Consult with and advise the Company with regards to potential
mergers and acquisitions, whether the Company be the acquiring
Company or the target of acquisition.
(e) Review press releases whenever appropriate to be made available
to the press in general, customers, suppliers and selected NASD
broker/dealers, financial institutions, and the Company's
shareholders.
(f) Evaluate the Company's managerial, marketing and sales
requirements
3. Responsibilities of the Company: The Company shall provide the
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Consultant with all financial and business information about the
Company as reasonably requested by the Consultant in a timely manner.
In addition, executive officers and directors of the Company shall
make themselves available for personal consultations either with the
Consultant and/or third party designees, subject to reasonable prior
notice, pursuant to the request of the Consultant.
4. Compensation: For corporate financial advisory services, due diligence
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and other services which will be provided to the Company from time to
time over the course of our engagement, the parties mutually agree
that the Consultant will be entitled to the following compensation:
(a) For business development, strategic planning and other consulting
work to be accomplished not related to any public financing, the
Company will pay a fee of $25,000 in free trading, unrestricted
shares of Common Stock of the Company issued under S-8;
(b) For business development, strategic planning and other consulting
work to be accomplished not related to any public financing, the
Company shall grant to the Consultant options to purchase free
trading, unrestricted shares of Common Stock of the Company
issued under S-8. Options are to be awarded six weeks after the
date on which this agreement is first signed, and at the two (2)
subsequent 6 week anniversary dates of this agreement thereafter.
The number of options granted at each award date shall be
400,000. The options shall have a strike price equal to five
cents, will be exercisable for six months from date of issuance.
The Company hereby irrevocably agrees not to circumvent, avoid,
bypass or obviate directly or indirectly, the intent of this
Agreement, to avoid payment of fees, in any transaction with any
corporation, partnership or individual, introduced by the
Consultant to the Company in connection with any project, any
loans or collateral or funding, or any other transaction
involving any products, transfers or contracts, or third party
assignments thereof.
5. Expenses: The Company shall also reimburse the Consultant for actual
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out-of pocket expenses including, but not limited to, facsimile,
postage, printing, photocopying, and entertainment, incurred by the
Consultant without the prior consent of the Company and in connection
with the performance by the Consultant of its duties hereunder, the
Company and in connection with the performance by the Consultant of
its duties hereunder, the Company shall also reimburse the Consultant
for the costs of all travel and related expenses incurred by the
Consultant in connection with the performance of its services
hereunder, provided that all such costs and expenses have been
authorized, in advance, by the Company, and the Consultant shall not
expend more than $500.00 for expenses without the prior written
approval of the Company.
6. Other Services and Compensation: The Consultant may, from time to time
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during the term hereof, present to the Company potential merger or
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acquisition candidates. In the event of the Company consummates a
business combination with any such Company presented by the Consultant
(whether the Company is acquiring Company or the target Company or
survives or does not survive a merger), the Company will pay to the
Consultant a fee in accordance with the generally accepted industry
standards (the Lehman Formula) or as may otherwise be agreed upon
between the Consultant and the Company in advance. In case of
termination this Agreement or conclusion thereof, these terms and
conditions of this Section 6 will survive and be in full effect for a
period of twelve (12) months from the termination or conclusion of
this Agreement.
7. Indemnification: The Parties agree to indemnify and hold harmless each
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other and their affiliates, and their respective officers, director,
employees, agents and controlling persons (The Parties and each such
other persons and entities being an "Indemnified Party" for the
purposes of this section) from and against any and all losses, claims,
damages, and liabilities to which such Indemnified Party may become
subject under any applicable federal or state law, or otherwise
related to or arising out of any transaction contemplated by this
Agreement and the performance by the Consultant of the services
contemplated by this Agreement, and all reasonable expenses (including
reasonable counsel fees and expenses) as they are incurred in
connection the investigation of, preparation for or defense of any
pending or threatened claim or any action or proceeding arising
therefrom, whether or not such Indemnified Party is a party thereto;
provided that the other party shall not be liable for any of the
foregoing to the extent they arise from the gross negligence or
willful misconduct of the Indemnified Party. The Indemnified Party
shall promptly notify the Party from which it is seeking
indemnification, in writing, of any such loss, claim, damage or
liability as it is incurred and provide such Party with the
opportunity to defend against or settle such matter with counsel of
its choice. Any Party against whom indemnification may be sought shall
not be liable to indemnify or provide contribution for any settlement
effected without the indemnifying party's prior written consent. In
the event that the foregoing indemnity is unavailable or insufficient
to hold any Indemnified Party harmless, then the other party shall
contribute to the amounts paid or payable by such Indemnified Party in
respect of such losses, claims in such proportion as is appropriate to
reflect not only the relative benefits received by the Parties, but
also the relevant fault of each Party, as well as any other relevant
equitable considerations.
8. Complete Agreement: This Agreement contains the entire Agreement
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between the parties with respect to the contents hereof supersedes all
prior agreements and understandings between the parties with the
respect to such matters, whether written or oral. Neither this
Agreement, nor any term or provisions hereof may be changed, waived,
discharged or amended in any manner other than by any instrument in
writing, signed by the party against which the enforcement of the
change, waiver, discharge or amendment is sought.
9. Counterparts: This Agreement may be executed in two or more
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counterparts, each of which shall be an original but all of which
shall constitute one Agreement.
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10. Survival: Any termination of this Agreement shall not, however, affect
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the on-going provisions of this Agreement which shall survive such
termination in accordance with their terms.
11. Disclosure: Any financial advice rendered by the Consultant pursuant
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to this Agreement may not be disclosed publicly in any manner without
the prior written approval of the Consultant, unless required by law
or statute or any court, governmental or regulatory agency. All
non-public information given to the Consultant by the Company will be
treated by the Consultant as confidential information and the
Consultant agrees not to make use of such information other than in
connection with its performance of this Agreement, provided however
that any such information may be disclosed if required by any court or
governmental or regulatory authority, board or agency. "Non-public
information" shall not include any information which (i) is or becomes
generally available to the public other than as a result of a
disclosure by the Consultant; (ii) was available to the Consultant
prior to its disclosure to the Consultant by the Company, provided
that such information is not known by the Consultant to be subject to
another confidentiality agreement with another party; or (iii) becomes
available to the Consultant on a non-confidentiality basis from a
source other than the Company, provided that such source is not bound
by a confidentiality agreement with the Company.
12. Notice: Any or all notices, designations, consents, offers, acceptance
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or other communication provided for herein shall be given in writing
and delivered in person or by registered or certified mail, return
receipt requested, directed to the address shown below unless notice
of a change of address is furnished:
If to Consultant:
San Diego Torrey Hills Capital, Inc.
2190 Carmel Valley Road
Del Mar, CA 92014
Attention: Cliff Mastricola
If to Company:
T & G2, Inc.,
65 La Grande Avenue
Berkeley Heights, NJ 07922
Attn: James Farinella
13. Severability: Whenever possible, each provision of Agreement will be
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interpreted in such manner as to be effective and valid under
applicable law. If any provision of this Agreement is held to be
invalid, illegal or unenforceable provision had never been contained
herein.
14. Miscellaneous:
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(a) Except as provided in Section 7, neither the Consultant nor its
affiliates. Or their respective officers, directors, employees,
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agents or controlling persons shall be liable, responsible or
accountable in damages or otherwise to the Company or its
affiliates, or their respective officers, directors, employees,
agents or controlling persons for any act or omission performed
or omitted by the Consultant with the respect to the services
provided by its pursuant or otherwise relating to or arising out
of this Agreement.
(b) All final decisions with the respect to consultation, advice and
services rendered by the Consultant to the Company shall rest
exclusively with the Company, and Consultant shall not have any
right or authority to bind the Company to any obligation or
commitment.
(c) The parties hereby agree to submit any controversy or claim
arising out of or relating to this Agreement to final binding
arbitration administered by the American Arbitration Association
("AAA") under its Commercial Arbitration Rules, and further agree
that immediately after the filing of a claim as provided herein
they shall in good faith attempt mediation in accordance with the
AAA Commercial Mediation Rules; provided, however, that the
proposed mediation shall not interfere with or in any way impede
the progress of arbitration. The parties also agree that (i) the
AAA Optional Rules for Emergency Measures of Protection shall
apply to any proceedings initiated hereunder; (ii) the arbitrator
shall be authorized and empowered to grant any remedy or relief,
which the arbitrator deems just and equitable in nature,
including, but not limited to, specific performance, injunction,
declaratory judgment and other forms of provisional relief in
addition to a monetary award; (iii) the arbitrator may make any
other decisions including interim, interlocutory or partial
findings, orders and awards to the full extent provided in Rule
45 of the Commercial Arbitration Rules; and (iv) the arbitrator
shall be empowered and authorized to award attorneys' fees to the
prevailing party in accordance with Rule45 (d).
(d) This Agreement and the legal relations among the parties hereto
shall be governed by and construed in accordance with the laws of
the State of California without regard to the conflicts of laws
principals thereof or the actual domiciles of the parties. Any
arbitration or mediation inherited by the parties as provided
herein shall be filed and maintained exclusively with the
American Arbitration Association's offices located in San Diego,
CA and the parties further agree that the provisions of paragraph
8, above, may be enforced by any court of competent jurisdiction,
and the party seeking enforcement shall be entitled to and award
of all costs, fees and expenses, including attorneys' fees, to be
paid by the party against whom enforcement is ordered.
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Agreed and accepted on , 2003 by and between:
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T & G2, Inc., San Diego Torrey Hills Capital, Inc.
By: By:
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James Farinella, Cliff Mastricola
Chairman/President/CEO
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ATTACHMENT A
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It is hereby acknowledged that the compensation for the services identified
in the foregoing Agreement will be in the form of T&G2, Inc. Class A Common
Stock registered on From S-8. Accordingly, the Consultant represents that the
services to be performed under the Agreement are eligible services as required
by Form S-8, and that the stock, when issued, must be issued in the name of a
"natural person" as defined by the applicable securities laws.
The Consultant represents that none of the compensation received hereunder
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is for promoting or maintaining a market in the stock of T&G2, Inc. The
Consultant, under the terms of this Agreement is not being retained to find
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investors; provide investor relations or shareholder communication services;
promote T&G2, Inc.'s stock through newsletters; or as part of a capital raising
scheme.
Additionally, the Consultant represents that, with regard to the stock to
be registered as compensation for the services rendered hereunder, (i) neither
T&G2, Inc., or a promoter of its stock, will direct the resale in the public
market of the stock received under this Agreement as compensation; and (ii)
T&G2, Inc. will not receive any portion of the proceeds of the resale of the
stock issued as compensation hereunder.
The Consultant acknowledges that T&G2, Inc., and its counsel, will rely on
these representations when filing the Form S-8 to register the shares that are
received as compensation.
CONSULTANT
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