Exhibit 10.1
[LETTERHEAD OF COHEN INDEPENDENT RESEARCH GROUP]
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is entered into effective as of
August 14, 2009 (the "Effective Date") by and between Verify Smart Corporation,
a Nevada corporation (the "Company") and D. Paul Cohen, an individual (the
"Consultant").
RECITALS
WHEREAS, the Consultant has in excess of ten (10) years of experience in
financial analysis, forecasting, budgeting and valuations of publicly held
companies and development stage ventures.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. ENGAGEMENT.
The Company hereby retains Consultant, effective the date hereof and
continuing until termination, as provided herein, to assist the Company in its
financial controls (the "Services") including, but not limited to, effecting
financial analysis, modeling and financial budgeting advise (the "Financial
Modeling"). The Services are to be provided on a "best efforts" basis, and the
Services shall expressly exclude all legal advice, accounting services or other
services which require licenses or certification that Consultant may not have.
The Company expressly retains the right to approve, in its sole discretion,
the Financial Modeling and each business opportunity ("Business Opportunity")
introduced by Consultant and to make all final decisions with respect to
effecting a transaction on the Financial Modeling or financial consulting or any
Business Opportunity.
2. CONSIDERATION.
Consulting Fee. As payment for services, the Company has proposed and the
Consultant has agreed that the Consultant shall receive 1,000,000 (one million)
restricted shares of Verify Smart Corporation stock in his personal name, D.
Paul Cohen. The Consultant has not been engaged to perform, nor will the
Consultant agree to perform, any services in connection with a capital raising
transaction or any services that would directly or indirectly promote or
maintain a market for the Company's securities in exchange for shares. Further,
the Company has agreed to promptly register, as necessary, the shares of common
stock issued at its own expense.
Expenses. The Company shall reimburse Consultant for all mutually agreed
upon travel, lodging, meals and other out-of-pocket expenses incurred by
Consultant in performing the Services provided hereunder. All potentially
reimbursable expenses shall be agreed upon in advance. Such expenses will be
invoiced to the Company and will be paid by the Company within thirty (30) days
of the Company's receipt of such invoice. If Consultant does not receive payment
in full of its invoiced expenses within thirty (30) days after the invoice date,
then the Consultant reserves the right to require the Company to pay interest on
the unpaid invoice amount from the invoice date until paid in full at the rate
of one percent (1%) per month or the maximum rate permitted by law, whichever is
less. Consultant's entitlement to such interest shall be in addition to any
other remedies available to Consultant.
3. TERM AND TERMINATION.
Consultant shall serve as a consultant to the Company for a two (2) year
period commencing on the Effective Date (the "Term"). Either party shall have
the right to terminate this Agreement upon ten days' prior written notice to the
other party after the first one hundred twenty (120) days. Consultant will
continue to be entitled to the reimbursement of its expenses prior to the
expiration of the Agreement.
4. INDEPENDENT CONTRACTOR.
Consultant's relationship with the Company will be that of an independent
contractor and not as an employee. Consultant will not be eligible for any
employee benefits, nor will the Company make deductions from consideration paid
to Consultant for taxes, all of which will be Consultant's responsibility.
Consultant will have no authority to enter into contracts that bind the Company
or create obligations on the part of the Company without the prior written
authorization of the Company.
5. COMPANY'S REPRESENTATIONS, WARRANTIES AND COVENANTS.
As of the Effective Date, the Company hereby represents, warrants and
covenants to Consultant that the Company is a duly organized corporation validly
existing and has full power and authority to perform its obligations under this
Agreement.
The execution and delivery of this Agreement by the Company has been duly
authorized by all requisite corporate actions and proceedings, and this
Agreement constitutes the legal, valid and binding obligation of the Company.
Neither the execution and delivery of this Agreement by the Company nor the
consummation of the transactions contemplated hereby do or would after the
giving of notice or the lapse of time or both, (i) conflict with, result in a
breach of, constitute a default under, or violate the Articles of Incorporation
or the bylaws of the Company, or (ii) conflict with, result in a breach of,
constitute a default under, or violate any federal, state or local law, statute,
rule, regulation, injunction, judgment, order, decree, ruling, charge or other
restriction of any government, governmental agency or court, except for
conflicts, breaches, defaults or violations which individually or in the
aggregate would not have a material adverse effect, or (iii) require any further
consent from any person or entity which has not already been received,
including, without limitation, any shareholder, Board of Director, or lender
approvals.
The Company's Board of Directors has authorized the issuance of the shares
and the Stock Option as set forth in Section 2 above for consideration
consisting of this Agreement and the Services to be provided hereunder. The
Company's Board of Directors has determined that the remuneration consisting of
this Agreement and the Services to be provided hereunder, is adequate. In
rendering its Services, Consultant will be using and relying on the information
supplied to it by the Company without independent verification thereof or
independent appraisal of any of the Company's business. The Company hereby
represents that all information made available to Consultant by the Company will
be complete and correct in all material respects and will not contain any untrue
statement of material fact or omit to state a material fact necessary in order
to make the statements therein not misleading in light of the circumstances
under which such statements are made.
6. THE COMPANY'S INDEMNIFICATION OBLIGATION.
The Company agrees that it will indemnify and hold harmless Consultant from
and against any and all losses, claims, damages, liabilities and expenses,
(including all reasonable fees of counsel), caused by or arising out of (a) the
Company's breach of any covenant or representation hereunder, or (b) Consultant
acting for the Company pursuant to this Agreement, including, without
limitation, (i) actions taken or admitted to be taken by the Company or any
persons acting together or in concert with the Company (including any untrue
statements made or admitted to be made), or (ii) actions taken or admitted to be
taken by any of the indemnified persons set forth above with the consent of or
in conformity with actions taken or admitted to be taken by the Company or any
persons acting together or in concert with the Company; provided, however, that
the Company will not be liable under this Section 6 to the extent that any loss,
claim, damages, liability or expense is found to have resulted from Consultant's
gross negligence or willful misconduct.
7. MISCELLANEOUS.
Amendments and Waivers. No term of this Agreement may be amended or waived
except with the written consent of the parties.
7.1. Entire Agreement. This Agreement constitutes the entire agreement of
the parties and supersedes all oral negotiations and prior writings
with respect to the subject matter hereof.
7.2. Notices. Any notice required or permitted by this Agreement shall be
in writing and shall be (i) delivered personally, (ii) sent by
certified or registered mail, postage prepaid, return receipt
requested, (iii) delivered by a nationally-recognized delivery service
(such as Federal Express or UPS), or (iv) faxed, addressed to the
party to be notified at such party's address or facsimile number as
set forth below or as subsequently modified by written notice. Notices
shall be deemed communicated upon receipt if personally delivered,
delivered by a nationally recognized delivery service or faxed (with a
written confirmation of facsimile transmission), or five (5) days
after posting if sent by certified mail.
If to the Company:
Telephone: 604 685 1584
Facsimile: 604 685 1684
If to Consultant:
Telephone: 415 454 6985
Facsimile: 415 455 0295
7.3. Choice of Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the
State of California, County of Marin, without giving effect to the
principles of conflict of laws.
7.4. Attorneys' Fees. If any action at law or in equity is commenced by any
party to enforce or interpret the terms of this Agreement, the party
finally prevailing in such proceeding or action shall be entitled to
recover from the unsuccessful party reasonable attorneys' fees, costs
and necessary disbursements in addition to any other relief to which
it may be entitled.
7.5. Severability. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, the parties agree to
renegotiate such provision in good faith. In the event that the
parties cannot reach a mutually agreeable and enforceable replacement
for such provision, then (i) such provision shall be excluded from
this Agreement, (ii) the balance of the Agreement shall be interpreted
as if such provision were so excluded and (iii) the balance of the
Agreement shall be enforceable in accordance with its terms.
7.6. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together will
constitute one and the same instrument.
8. Confidentiality
1.1 Parties agree that all materials delivered to Company will be held in
confidence.
IN WITNESS WHEREOF, the parties hereto have executed this binding Agreement
as of the Effective Date
VERIFY SMART CORP.
/s/ Adi Muljo
-------------------------
Name: Adi Muljo
Title: Director
CONSULTANT
/s/ D. Paul Cohen
-------------------------
Name: D. Paul Cohen