EXHIBIT 10.15
AGREEMENT FOR BUSINESS DEVELOPMENT CONSULTING SERVICES
February 1, 2003
Mr. Cristino L. Perez Chief Financial Officer Resolve Staffing, Inc.
105 North Falkenburg Road, Suite B
Tampa, Florida 33619
Dear Cris:
On behalf of Pinnacle Corporate Services, LLC ("PCS"), I wish to thank Resolve
Staffing, Inc. and its owners, shareholders, and affiliates (collectively, the
"Company") for the opportunity to assist you as an outside business consultant
in connection with the Company's growth and expansion efforts. The purpose of
this letter (the "Agreement") is to set forth the terms and conditions under
which PCS agrees to serve the Company as an outside business consultant.
1. SERVICES. PCS shall use its best efforts to perform the following services
in a timely manner: (a) become familiar with the business and operations of
the Company and review and analyze the Company's formal and informal
strategic, product marketing, financial, and business plans; (b) in
conjunction with the Company, prepare a formal strategic business plan and
financial model and provide updates to the strategic business plan as
needed during the term of this Agreement; (c) locate and recruit outside
candidates for the Company's Board of Directors; (d) locate, recruit and
secure the employment services of qualified individuals with the requisite
staffing industry experience to permanently fill executive management and
sales positions within the Company; (e) advise the Company in strategic
planning matters and assist in the implementation of short- and long-term
strategic planning and business development initiatives in order to
increase the Company's staffing services revenues; and (f) provide advice
to and consult with the Company concerning its management, the marketing of
its staffing services, its corporate organization and its overall
development, progress, needs and condition.
PCS has agreed to devote 50 - 60 hours per month to fulfilling its
obligations under this Agreement.
2. TERM. The term of this Agreement shall commence upon the execution of this
Agreement by the Company and PCS (the "Effective Date") and end on the
one-year anniversary thereafter unless terminated earlier according to
paragraph 6. Notwithstanding the foregoing (a) paragraphs 7, 8, 9, 10, 11,
12, and 13 shall survive any termination or expiration of this Agreement,
and (b) PCS shall have no obligation to provide its services hereunder
until the shares are delivered to PCS in accordance with paragraph 4 of
this Agreement.
3. CONSIDERATION. In consideration for the valuable advice and services to be
provided to the Company by PCS under this Agreement, the Company agrees to
pay PCS a fee of 950,000 restricted shares of the Company's common stock,
$.0001 par value, (the "Shares") with the additional restrictions (the
"Vesting Period") set forth below. All compensation due to PCS under the
terms of this Agreement shall be deemed earned upon execution hereof. All
fees paid to PCS are strictly NON-REFUNDABLE.
The Company has requested that PCS accept equity consideration in lieu of
cash to perform the services under this Agreement due to the fact that the
Company does not currently posses the cash to pay vendors for these
services and it has been unable to locate other suitable vendors to perform
these services.
The Company certifies that the Shares being issued to PCS pursuant to this
Agreement are not in connection with any offer or sale of securities in a
capital raising transaction and these Shares are not being issued in
connection with any mergers or acquisitions transactions. There are no side
agreements between the Company and PCS, whether verbally or in writing, for
PCS to provide any services not listed in this Agreement in exchange for
the Shares being issued.
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The Company and PCS agree that at the time of the execution of this
Agreement the cash value of the services to be performed by PCS is greater
than the current value of the equity consideration being paid to PCS. PCS
acknowledges that it understands that the value of the Company's equity may
be volatile and there is a significant risk that PCS may not be able to
realize the cash value of the services it is required to perform under this
Agreement. Furthermore, the Company has agreed that in exchange for PCS'
willingness to assume the risk of accepting all restricted equity
consideration and additionally for PCS' efforts to date in recruiting and
securing the employment of Wanda Dearth as the Company's Chief Executive
Officer, the Company will pay a portion of PCS' compensation up front in
the form of restricted shares.
The Vesting Period shall commence on the Effective Date of the Agreement.
(a) 100,000 shares will vest immediately upon the execution of this
Agreement;
(b) 100,000 shares will be fully vested after 30-days;
(c) 100,000 shares will be fully vested after 60-days;
(d) 100,000 shares will be fully vested after 120-days;
(e) 100,000 shares will be fully vested after 180-days;
(f) 100,000 shares will be fully vested after 210-days;
(g) 100,000 shares will be fully vested after 270-days; and
(h) 250,000 shares will be fully vested after 360-days.
At the end of each such Vesting Period, PCS shall have the right to receive
full benefit of the shares not already vested for which the Vesting Period
has expired.
At the time of the execution of this Agreement, the cash value of the
shares being paid to PCS over the term of the Agreement is roughly
$133,000.
4. DELIVERY OF CONSIDERATION. Upon the Effective Date, the Company shall
deliver certificates representing 950,000 restricted Shares to PCS.
5. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to PCS
that the statements contained in this paragraph 5 are correct and complete
as of the Effective Date:
(a) The Company is a corporation duly organized, validly existing and
of active status under the laws of the State of Nevada.
(b) The Company has full corporate power and authority to (i) conduct
its business as now conducted and as proposed to be conducted and to own,
use, license, and lease its assets and properties and (ii) enter into this
Agreement and to consummate the transactions contemplated herein
(including, without limitation, the issuance and registration of the
Shares). Neither the execution of this Agreement nor the consummation of
the transactions contemplated in this Agreement by the Company will
constitute or cause a breach or violation of any covenants or obligations
binding upon it or affecting any of its properties. No approval of or
filing with any federal, state, or local court, authority or administrative
agency is necessary to authorize the execution of this Agreement by the
Company or the consummation of the transactions contemplated in this
Agreement by the Company. There is no judgment, decree, injunction, rule,
or order of any court, governmental department, commission, agency,
instrumentality, or arbitrator outstanding against the Company that could
reasonably be expected to have a material adverse effect on the ability of
the Company to fulfill its obligations under this Agreement.
(c) The Shares to be issued pursuant to this Agreement will be duly
authorized, validly issued fully paid and nonassessable, and no stockholder
of the Company has preemptive rights with respect to the Shares. The Shares
will be delivered free and clear of all liens, encumbrances, and other
claims or restrictions, except as provided herein.
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(d) Neither the Company nor any person acting on its behalf has taken
any action (including, without limitation, any offering of any securities
of the Company under circumstances that would require, under the Securities
Act of 1933, as amended (the "Act"), the integration of such offering with
the offering, issuance, and sale of the Shares) that might reasonably be
expected to subject the offering, issuance, or sale of the Shares to the
registration requirements of Section 5 of the Act.
6. TERMINATION. This Agreement may be terminated at any time:
(a) by mutual written agreement of the parties;
(b) by the Company (i) upon a willful breach by PCS of any of
provisions of this Agreement if such breach results in material injury to
the Company or (ii) upon 30 days' prior written notice to PCS; (c) by PCS
(i) if any representation or warranty of the Company is not true and
correct in all material respects as of the Effective Date, (ii) if the
Company does not fully comply with any covenant or agreement in this
Agreement, (iii) upon a Change of Control (as defined below) in the
Company, or (iv) upon 30 days' prior written notice to the Company. This
Agreement shall not be terminated by either party for the reasons set forth
in 6(b)(i) or 6(c)(i)-(iii), without the terminating party (a) giving
notice to the other party setting forth in reasonable detail the reasons
for the terminating party's intention to terminate and (b) providing an
opportunity to cure, if capable of being cured, within 15 days after the
non-terminating party's receipt of such notice.
7. EFFECT OF TERMINATION. Without limiting any other remedies available to the
terminating party for any willful or intentional breach of this Agreement,
(a) if (i) the Company shall terminate this Agreement pursuant to paragraph
6(b)(i) or (ii) PCS shall terminate this Agreement pursuant to paragraph
6(c)(iv), then PCS shall return to the Company any Shares that have not yet
vested as described in paragraph 3 on the date of such termination and (b)
if (i) the Company shall terminate this Agreement pursuant to paragraph
6(b)(ii) or (ii) PCS shall terminate this Agreement pursuant to paragraphs
6(c)(i), (ii), or (iii), then all restrictions on the Shares as described
on Schedule A shall terminate. If the Company terminates the Agreement
before the end of the term as defined in paragraph 2 for any reason, then
the Company agrees to pay PCS a termination fee of an 100,000 shares of its
common stock in additional to any fees already earned by PCS.
8. EXPENSES. In addition to the consideration set forth in paragraph 3, the
Company shall reimburse PCS and its affiliates, upon request, for all
reasonable out-of-pocket expenses incurred in connection with the
performance by PCS of its obligations under this Agreement. Out-of-pocket
expenses may include necessary out-of-town travel agreed to by the Company
(including meals and lodging), database services, courier charges, and fees
and expenses of third parties such as legal counsel, etc. The Company shall
approve such expenses in advance.
9. REGISTRATION. The Company shall prepare and file a registration statement
on or before December 31, 2003, providing for the sale of all the Shares
paid to PCS that are not subject to the Vesting Period described in
paragraph 3. The Company will pay all expenses in connection with the
registration of the Shares pursuant to paragraph 3, including, without
limitation, all Securities and Exchange Commission registration and filing
fees, costs, fees and expenses of compliance with securities or blue sky
laws, and fees and expenses of the Company's counsel.
10. CHANGE OF CONTROL. In the event of a Change of Control, all of the Shares
described in paragraph 3 shall immediately vest to PCS. "Change of Control"
means: (a) the adoption of a plan of reorganization, merger, share
exchange, or consolidation of the Company with one or more other
corporations or other entities as a result of which the holders of the
Company's common stock as a group would receive less than 50% of the voting
power of the capital stock or other interests of the surviving or resulting
corporation or entity (unless such plan is subsequently abandoned); (b) the
adoption by the Company's shareholders of a plan of liquidation or the
approval of the dissolution of the Company (unless such liquidation or
dissolution is subsequently abandoned); (c) the approval by the Company's
shareholders of an agreement providing for the sale of all or substantially
all the assets of the Company (unless such sale is subsequently abandoned);
(d) the acquisition of more than 30% of the outstanding shares by any
person within the meaning of Rule 13(d)(3) under the Act if such
acquisition is not preceded by a prior expression of approval by the Board;
or (e) one-third or more of the Company's Board of Directors are not
Continuing Directors. A "Continuing Director" means any member of the Board
of Directors who was a member on the Effective Date and any director who
was recommended for election or is elected to fill a vacancy as a director
by a majority of the Continuing Directors then on such Board.
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11. INDEMNITY. The Company agrees to indemnify, defend, and hold harmless PCS
and its affiliates, directors, officers, counsel, employees, agents,
members, managers, successors, assigns, and controlling persons (as defined
in the Act) (each, an "Indemnified Party") from and against any and all
losses, claims, damages, costs, expenses, and liabilities (including any
investigatory, legal, and other expenses incurred as they are incurred by
an Indemnified Party in connection with preparing for or defending any
action, claim, or proceeding, whether or not resulting in any liability)
(collectively, "Indemnifiable Losses") to which any Indemnified Party may
become subject or liable relating to or arising out of (a) the Agreement or
the services to be performed under the Agreement or any agreement between
the parties to this Agreement, (b) any transactions referred to in the
Agreement or any transactions arising out of the transactions contemplated
by the Agreement, (c) any inaccuracy in or breach in the representations
and warranties of the Company contained in this Agreement, and (d) any
failure of the Company to perform its obligations under this Agreement,
provided that the Company shall not be liable to an Indemnified Party in
any such case to the extent that any such Indemnifiable Loss is found in a
final, nonappealable judgment by a court of competent jurisdiction to have
resulted as a direct and proximate cause from the willful misconduct or
gross negligence of an Indemnified Party. No Indemnified Party shall be
liable, responsible, or accountable in damages and costs and expenses
(including attorneys' fees) under this Agreement except for any liability
for losses, claims, damages, or liabilities finally judicially determined
to have resulted solely and exclusively from actions taken or omitted to be
taken as a direct result of such Indemnified Party's gross negligence or
willful misconduct. If for any reason, except as specifically provided
herein, the foregoing indemnity for Indemnifiable Losses is unavailable to
an Indemnified Party or insufficient to fully hold any Indemnified Party
harmless, then the Company agrees to contribute to the amount paid or
payable by such Indemnified Party as a result of such Indemnifiable Losses
in such proportion as is appropriate to reflect the relative benefits
received by and fault of the Company, on the one hand, and the relative
benefits received by and fault of PCS, on the other hand. The Company
agrees that it will not settle, compromise, or consent to the entry of any
judgment in any pending or threatened claim, action, or proceeding in
respect of which indemnification could be sought under the indemnification
provision of this Agreement (whether or not PCS or any other Indemnified
Party is an actual or potential party to such claim, action, or
proceeding), unless such settlement, compromise, or consent includes an
unconditional release of each Indemnified Party from all liability arising
out of such claim, action, or proceeding.
12. LEGAL MATTERS. This Agreement shall be interpreted under and governed by
the laws of the State of Florida. Any controversy, dispute, or claim
between the parties relating to this Agreement shall be resolved by binding
arbitration in Hillsborough County, Florida, in accordance with the rules
of the American Arbitration Association. The parties agree that in the
event that any controversy, dispute, or claim between the parties relating
to this Agreement, is resolved by binding arbitration, the prevailing
party, as determined by the arbitrator's award, shall be entitled to
reimbursement of all expenses including reasonable attorney's fees;
provided that in no event shall the arbitrator have the authority to award
punitive damages.
13. REPRESENTATION. PCS makes no representations, whether expressed or implied,
and does not guarantee that it will be able to secure the employment
services of qualified executive management personnel and/or outside
directors on the Company's behalf as a result of the services furnished
under this Agreement. The Company acknowledges that PCS has informed it
that neither PCS nor any of its members, managers or employees provides any
legal advice or counsel. The Company also specifically acknowledges that it
has been given notice by PCS that PCS is not a licensed securities
broker-dealer and PCS is not required under this Agreement or any side
agreements, whether verbally or in writing, to sell securities on behalf of
the Company or any issuer affiliated with the Company. Furthermore, PCS
does not intend to perform services that are defined in the Securities
Exchange Act of 1934 as being exclusive to licensed broker-dealers.
Moreover, the Company acknowledges that PCS does not intend to negotiate
raising of capital transactions, does not intend to directly solicit
purchasers of the Company's common stock, will not hold any funds or
securities in a capital raising transaction, and the compensation due to
PCS is not based on a specified percentage of any actual or proposed funds
raised or any mergers or acquisitions transactions. PCS is not required
under this Agreement or any side agreement, whether verbally or in writing,
to promote or maintain a market for the Company's securities. The duties of
PCS shall not include accounting, appraisal, computer network design or
valuation
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services, which shall be procured by the Company at its own expense. The
Company shall fully cooperate with any company affiliated with PCS and
shall furnish to PCS and such affiliated company complete and accurate
current and historical business information. The Company represents and
warrants to PCS that all information to be provided to PCS will not contain
any untrue statements of a material fact or omit to state a material fact
necessary to make the statements therein not misleading. The Company shall
promptly inform PCS of any changes or events that may materially affect the
Company's business.
14. INDEPENDENT CONTRACTOR. PCS is an independent contractor and may engage in
other business activities. Since PCS is an independent contractor, nothing
in this Agreement shall be interpreted to constitute that PCS is an agent
of, employee of, or partner of the Company, nor shall either party have any
authority to bind the other. In its capacity as an independent contractor,
PCS agrees, and the Company agrees, that PCS has the sole right to control
and direct the means, manner, and method by which the services required by
this Agreement will be performed and the Company shall not withhold from
PCS's compensation any amount that would normally be withheld from an
employee's pay.
15. ENTIRE AGREEMENT. This Agreement and the schedules and exhibits to this
Agreement constitute the entire agreement between the parties pertaining to
the subject matter hereof and supersedes and cancels any prior
communications, representations, understandings, and agreements between the
parties. No modifications of or changes to this Agreement shall be binding,
nor can any of its provisions be waived, unless agreed to in writing by the
parties. There are no side agreements between PCS and the Company, whether
verbally or in writing, for PCS to provide any other services to the
Company.
16. CONFIDENTIALITY. The parties agree that the terms and all of the
encompassing components of this Agreement shall be kept confidential,
unless this information is required to be disclosed pursuant to any
inquiries by federal, state, or local law enforcement or pursuant to
paragraph 9.
If the foregoing is acceptable to you, please execute this Agreement in the
place provided below.
Very Truly Yours,
By:/s/ Christopher D. Gilcher
-------------------------------------
Christopher D. Gilcher
Managing Partner
ACCEPTED AND AGREED TO THIS _________ DAY OF ______________, 2003.
Resolve Staffing, Inc.
By: /s/ Cristino L. Perez
------------------------------------
Cristino L. Perez,
Chief Financial Officer and Member of the Board
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