Exhibit 10.18
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is made and entered into to be
effective as of March 21, 2004 (the "Effective Date") by and between DELTA
MUTUAL, INC. (THE "COMPANY") and CLARK STREET CAPITAL (THE "CONSULTANT").
WHEREAS:
A. The Consultant has the business and financial expertise and experience to
assist the Company, and
B. The Consultant is offering its services as a consultant to the Company;
and
C. The Company desires to retain the Consultant as an independent consultant
and to memorialize the Consultant's work for the Company by entering into
this written Agreement. D. The parties agree that this Agreement reflects
the entire understanding and agreements between the parties hereto.
NOW, THEREFORE, in consideration of the premises and promises, warranties and
representations herein contained, it is agreed as follows:
1. DUTIES. The Company hereby engages the Consultant and the Consultant
hereby accepts engagement as a consultant. It is understood and
agreed, and it is the express intention of the parties to this
Agreement, that the Consultant is an independent contractor, and not
an employee or agent of the Company for any purpose whatsoever.
Consultant shall perform all duties and obligations as described on
Exhibit A hereto and agrees to be available at such times as may be
scheduled by the Company. It is understood, however, that the
Consultant will maintain Consultant's own business in addition to
providing services to the Company. The Consultant agrees to promptly
perform all services required of the Consultant hereunder in an
efficient, professional, trustworthy and businesslike manner. A
description of the Consultant's services are attached hereto as
Exhibit A and incorporated by reference herein. In such capacity,
Consultant will utilize only materials, reports, financial
information or other documentation that is approved in writing in
advance by the Company.
2. CONSULTING SERVICES. For a period of one (1) year commencing on the
Effective Date hereof (the "Consulting Period") and subject to prior
termination has hereinafter provided in paragraph 6, the Consultant
will be retained as a consultant and independent contractor for the
Company. For services rendered hereunder, the Consultant shall
receive a total of 400,000 SHARES OF DELTA MUTUAL COMMON STOCK (THE
"SHARES"). All applicable federal, state and local taxes with
respect to the Shares shall be the sole responsibility of the
Consultant. This Consulting Agreement may be terminated as described
in Section 6 below.
3. CONFIDENTIALITY. All knowledge and information of a proprietary and
confidential nature relating to the company which the Consultant
obtains during the Consulting period, from the Company or the
Company's employees, agents or consultants shall be for all purposes
regarded and treated as strictly confidential for so long as such
information remains proprietary and confidential and shall be held
in trust by the Consultant solely for the Company's benefit and use
and shall not be directly or indirectly disclosed by the Consultant
to any person without the prior written consent of the Company,
which consent may be withhold by the Company in its sole discretion.
4. INDEPENDENT CONTRACTOR STATUS. Consultant understands that since the
Consultant is not an employee of the Company, the Company will not
withhold income taxes or pay any employee taxes on its behalf, nor
will it receive any fringe benefits. The Consultant shall not have
any authority to assume or create any obligations, express or
implied, on behalf of the Company and shall have no authority to
represent the Company as agent, employee or in any other capacity
other than that as herein provided.
The Consultant does hereby indemnify and hold harmless the Company
from and against any and all claims, liabilities, demands, losses or
expenses incurred by the Company if the Consultant fails to pay any
applicable income and/or employment taxes (including interest or
penalties of whatever nature), in any amount, relating to the
Consultant's rendering of consulting services to the company,
including any attorneys' fees or costs to the prevailing party to
enforce this indemnification.
The Consultant shall be responsible for obtaining workers'
compensation insurance coverage and agrees to indemnify, defend and
hold the Company harmless from any and all claims arising out of any
injury, disability or death of the Consultant.
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5. REPRESENTATIONS AND WARRANTIES. For purposes of this Agreement, the
parties represent and warrant as follows:
a. The Consultant (i) has adequate means of providing for the
Consultant's current needs and possible personal contingencies
(ii) is able to bear the substantial economic risks of an
acquisition of the Shares for an indefinite period, and (iii)
at the present time, can afford a complete loss of the Shares,
whether or not the Shares are sold.
b. The Consultant does not have a pre-existing personal or
business relationship with the Company or any of its directors
or executive officers, or by reason of any business or
financial experience or the business or financial experience
of any professional advisors who are unaffiliated with and who
are compensated by the company or any affiliate or selling
agent of the Company, directly or indirectly, that could be
reasonably assumed to have the capacity to protect the
Consultant's interests in connection with the investment in
the Company.
C. The Consultant is aware that the Articles of Incorporation and
Bylaws of the Company contain provisions that limit or
eliminate the personal liability of the officers, directors
and agents of the Company and indemnify such parties for
certain damages relating to the Company, including damages in
connection with the Shares and the good-faith management and
operation of the Company.
d. The Consultant has not been furnished with any offering
literature other than this document and the attached exhibits
("Disclosure Materials") and the Consultant has relied only on
such written information to consider this Agreement.
e. The Company and its officers, directors and agents have
answered all inquiries that the Consultant has made of them
concerning the Company or any other matters relating to the
formation, operation and proposed operation of the Company and
the offering and issuance of common stock. No statement,
printed material or inducement which is contrary to the
information contained in the Disclosure Materials has been
given or made by or on behalf of the Company to the
Consultant.
f. The Consultant, if a corporation, partnership, trust or other
entity, is duly organized and in good standing in the state or
country of its incorporation and is authorized and otherwise
duly qualified to hold the Shares. Such entity has its
principal place of business as set forth on the signature page
hereof and has not been formed for the specific purpose of
acquiring the Shares unless all of its equity owners qualify
as accredited individual investors.
g. All information which the Consultant has provided to the
Company concerning the Consultant, the Consultant's financial
position and the Consultant's knowledge of financial and
business matters, or, in the case of a corporation,
partnership, trust or other entity, the knowledge of financial
and business matters of the person making the investment
decision on behalf of such entity, including all information
contained herein, is correct and complete as of the date set
forth at the end hereof and may be relief upon, and if there
should be any material adverse change in such information
prior to the issuance of the Shares, the Consultant will
immediately provide the Company with such information.
h. The Consultant certifies (i) that the taxpayer identification
number shown on the signature page of this Consulting
Agreement is true, correct and complete, and (ii) that the
Consultant is not subject to backup withholding as a result of
a failure to report all interest or dividends, or because the
Internal Revenue Service has notified the Consultant that the
Consultant is no longer subject to backup withholding.
i. In rendering the services hereunder and in connection with the
Shares, the Consultant agrees to comply with all applicable
federal and state securities laws, the rules and regulations
thereunder and the rules and regulations of the National
Association of Securities Dealers, Inc.
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6. TERMINATION. Either party may terminate this Agreement at anytime
with or without cause by giving thirty (30) days written notice to
the other party. Should the Consultant default in the performance of
this Agreement or materially breach any of its provisions, the
Company may, in its sole discretion, terminate this Agreement
immediately upon written notice to the Consultant. Termination of
this Agreement does not terminate the Shares issued to Consultant.
7. NO THIRD PARTY RIGHTS. The parties warrant and represent that they
are authorized to enter into this Agreement and that no third
parties, other than the parties hereto, have any interest in any of
the services or the Shares contemplated hereby.
8. ABSENCE OF WARRANTIES AND REPRESENTATIONS. Each party hereto
acknowledges that they have signed this Agreement without having
relied upon or being induced by any agreement, warranty or
representation of fact or opinion of any person not expressly set
forth herein or in the Disclosure Materials. All representations and
warranties of either party contained herein shall survive its
signing and delivery.
9. NEW YORK LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
10. ATTORNEYS' FEES. In the event of any controversy, claim or dispute
between the parties hereto, arising out of or in any manner relating
to this Agreement, including an attempt to rescind or set aside, the
prevailing party in any action brought to settle such controversy,
claim or dispute shall be entitled to recover reasonable attorneys'
fees and costs.
11. ARBITRATION. Any controversy between the parties regarding the
construction or application of this Agreement, any claim arising out
of this Agreement or its breach, shall be submitted to arbitration
in New York, New York before one arbitrator in accordance with the
Commercial Arbitration Rules of the American Arbitration
Association, upon the written request of one party after service of
that request on the other party. The cost of arbitration shall be
borne by the losing party. The arbitrator is also authorized to
award attorneys' fees to the prevailing party.
12. VALIDITY. If any paragraph, sentence, term or provision hereof shall
be held to be invalid or unenforceable for any reason, such
invalidity or unenforceability shall not affect the validity or
enforceability of any other paragraph, sentence, term and provision
hereof. To the extent required, any paragraph, sentence, term or
provision of this Agreement may be modified by the parties hereto by
written amendment to preserve its validity.
13. NON-DISCLOSURE OF TERMS. Except as to the Securities and Exchange
Commission, NASD, Internal Revenue Service, and New York State
Franchise Tax Board and other taxing authorities or applicable
government agencies, the terms of this Agreement shall be kept
confidential, and no party, representative, attorney or family
member shall reveal its contents to any third party except as
required by law or as necessary to comply with law.
14. ENTIRE AGREEMENT. This Agreement contains the entire understanding
of the parties and cannot be altered or amended except by an
amendment duly executed by all parties hereto. This Agreement shall
be binding upon and inure to the benefit of the successors, assigns
and personal representatives of the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Consulting
Agreement effective as of the date first written above.
DELTA MUTUAL, INC. CLARK STREET CAPITAL
By: /s/ Peter Russo By: /s/ Jeffrey R. Chicol
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Peter Russo-CEO Jeffrey R. Chicola- Managing Director
111 North Branch St. 11 Broadway
Sellersville, Pa. 18960 New York, N.Y. 10004
Taxpayer ID No.:
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EXHIBIT A
DESCRIPTION OF CONSULTING SERVICES
The Consultant agrees, to the extent reasonably required in the conduct of its
business with the Company, to place at the disposal of the Company its judgment
and experience and to provide business development services to the Company
including, but not limited, to, the following:
(i) review the Company's financial requirements;
(ii) analyze and assess alternatives for the Company's financial
requirements;
(iii) provide introductions to professional analysts and money managers;
(iv) assist the Company in financing arrangements to be determined and
governed by separate and distinct financing agreements;
(v) provide analysis of the company's industry and competitors in the
form of general industry reports provided directly to the Company;
(vi) Assist the Company in developing corporate partnering relationships;
and
(vii) Assist the Company in becoming initially listed on the American
Stock Exchange, LLC.
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