EXHIBIT 10.8
CONSULTING AGREEMENT
This Consulting Agreement ("AGREEMENT") is executed to be effective as
of November 22, 2004 (the "EFFECTIVE DATE") by and among Sealife Corporation, a
Delaware corporation (the "PARENT"), SeaLife Marine Products, Inc., a California
corporation and indirect wholly-owned subsidiary of Parent ("COMPANY"), and
Brokers Unlimited, Inc., a California corporation (the "CONSULTANT"), in
reference to the following:
RECITALS
Company and Consultant are parties to that certain Sales Force
Agreement dated as of January 21, 2004 (as such agreement may be amended from
time to time, the "SF AGREEMENT").
In addition to the services provided by Consultant to Company pursuant
to the SF Agreement, Parent and Company wish to retain Consultant on a
non-exclusive basis, and Consultant wishes to be retained by Parent and Company,
to provide to Company and to Parent the "SERVICES" set forth below, all upon the
terms and subject to the conditions set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Parent, Company and Consultant
agree as follows:
1. TERM. Parent and Company hereby retain Consultant and
Consultant accepts this appointment with Company, for a period commencing as of
the Effective Date and terminating June 30, 2005 (the "TERMINATION DATE"),
unless extended by mutual agreement of the parties (collectively, the "TERM").
2. DUTIES OF CONSULTANT. Consultant has performed and will
continue to perform non-exclusive consulting services for Parent and Company as
the parties may mutually agree, including without limitation, those services
described on EXHIBIT A hereto (the "SERVICES"). It is expressly acknowledged and
agreed that the Services are in addition to the services provided by Consultant
pursuant to the SF Agreement and that Consultant is not receiving any additional
compensation for the Services under the SF Agreement. Consultant will determine,
in its sole discretion, the method, details and means of performing the
Services. Consultant shall not be required to devote its full time and business
attention to the performance of the Services.
3. COMPENSATION.
3.1 PAST SERVICES. As compensation for services rendered
to Parent and Company by Consultant prior to the Effective Date (the "PAST
SERVICES"), Parent will issue to, or at the direction of, Consultant 786,500
shares (the "PAST SERVICE SHARES") of the Common Stock of Parent (the "PARENT
COMMON STOCK"), as more fully set forth on SCHEDULE I hereto. Parent shall cause
its transfer agent to issue to and register in the name of Consultant, and/or
the name of such other persons as may be set forth on Schedule I hereto, one or
more certificates evidencing the Past Service Shares no later than five (5)
business days following the Effective Date. The Past Services shall be deemed
completed and satisfied in full and Consultant shall be deemed to
have delivered full consideration for the Past Service Shares as of the
Effective Date. In the event that the Past Services Shares are issued at the
direction of Consultant to any person other than Consultant, then such person
shall be required to execute the Investor Representation Letter attached hereto
as EXHIBIT B.
3.2 FUTURE SERVICES. As compensation for the Services to
be provided to Parent and Company during the Term (the "FUTURE SERVICES"),
Parent will issue to Consultant, on November 30, 2004, and on the last day of
each month thereafter for a period of seven (7) months (each an "ISSUANCE
DATE"), shares of Parent Common Stock having a value at the time of issuance,
based on the volume weighted average trading price per share of Parent Common
Stock, as quoted on the Over-the-Counter Bulletin Board, for the twenty (20)
consecutive trading days immediately preceding the date of issuance of such
shares of Parent Common Stock, of $14,375.00 (the "FUTURE SERVICE Shares"). For
purposes of clarity, the aggregate value of the total Future Services Shares
issued hereunder shall not exceed $115,000 (calculated as set forth hereunder on
each Issuance Date). Parent shall cause its transfer agent to issue to and
register in the name of Consultant certificates evidencing the Future Service
Shares to be received hereunder no later than five (5) business days following
each Issuance Date. Unless written notice is otherwise delivered by Parent to
Consultant, on the Termination Date, the Future Services shall be deemed
completed and satisfied in full and Consultant shall be deemed to have delivered
full consideration for the Future Service Shares as of such date.
4. NONDISCLOSURE.
4.1 ACCESS TO CONFIDENTIAL INFORMATION. Consultant agrees
that during the Term, Consultant may have access to and become acquainted with
confidential proprietary information ("CONFIDENTIAL INFORMATION") which is owned
by Parent or Company and is regularly used in the operation of Parent's or
Company's business. Consultant agrees that the term "Confidential Information"
as used in this Agreement is to be broadly interpreted and includes (i)
information that has, or could have, commercial value for the business in which
Parent or Company is engaged, or in which Parent or Company may engage at a
later time, and (ii) information that, if disclosed without authorization, could
be detrimental to the economic interests of Parent or Company. Consultant agrees
that the term "Confidential Information" includes, without limitation, any
patent, patent application, copyright, trademark, trade name, service mark,
service name, "know-how," negative "know-how," trade secrets, customer and
supplier identities, characteristics and terms of agreement, details of customer
or consultant contracts, pricing policies, operational methods, marketing plans
or strategies, product development techniques or plans, business acquisitions
plans, science or technical information, ideas, discoveries, designs, computer
programs (including source codes), financial forecasts, unpublished financial
information, budgets, processes, procedures, formulae, improvements or other
proprietary or intellectual property of Parent and/or Company, whether or not in
written or tangible form, and whether or not registered, and including all
memoranda, notes, summaries, plans, reports, records, documents and other
evidence thereof. Consultant acknowledges that all Confidential Information,
whether prepared by Consultant or otherwise acquired by Consultant in any other
way, will remain the exclusive property of Parent and/or Company, respectively.
4.2 NO UNFAIR USE BY CONSULTANT. Consultant promises and
agrees that Consultant will not misuse, misappropriate, or disclose in any way
to any person or entity any of Parent's or Company's Confidential Information,
either directly or indirectly, nor will Consultant
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use the Confidential Information in any way or at any time except as required in
the course of Consultant's business relationship with Parent or Company.
5. TERMINATION.
5.1 TERMINATION FOR CONVENIENCE. Parent and Company shall
be permitted to terminate this agreement with or without cause and for any
reason upon delivery to Consultant of sixty (60) days prior written notice of
its termination.
5.2 TERMINATION ON DEFAULT. Should any party default in
the performance of this Agreement or materially breach any of its provisions,
the non-breaching party may terminate this Agreement by giving written
notification to the breaching party. Termination shall be effective immediately
on receipt of said notice. For purposes of this Section 5, material breaches of
this Agreement shall include, but not be limited to, (i) the failure by Parent
to pay the compensation set forth in Section 3 above; (ii) Consultant's failure
to provide the Future Services hereunder in a manner reasonably acceptable to
Parent or Company, and if curable, Consultant's failure to cure such failure to
provide Future Services in a manner reasonably acceptable to Parent or Company
within thirty (30) days of Parent or Company's written notice thereof; (iii)
Consultant's commission of acts of material fraud or material misrepresentation;
and (iv) the knowing failure by Consultant to conform in all material respects
to all laws and regulations governing Consultant's duties under this Agreement.
5.3 AUTOMATIC TERMINATION. This Agreement terminates
automatically on the occurrence of any of the following events: (i) the
bankruptcy or insolvency of Parent or Company; (ii) the death or permanent
disability of Consultant; or (iii) the voluntary resignation of Consultant.
5.4 RETURN OF PROPERTY. Upon the termination or expiration of
this Agreement, Consultant will immediately transfer to Company all files
(including, but not limited to, electronic files), records, documents, drawings,
specifications, equipment and similar items in its possession relating to the
business of Parent or Company or their respective Confidential Information
(including the work product of Consultant created pursuant to this Agreement).
5.5 EFFECT OF TERMINATION. Notwithstanding the termination of
this Agreement, Parent and Company shall continue to be responsible for paying
Consultant for services rendered prior to the effective date of termination, and
the parties shall continue to be responsible for affecting any other rights and
obligations of the parties which relate to the period prior to the effective
date of termination.
6. REPRESENTATIONS AND WARRANTIES.
(a) Parent and Company hereby represent and warrant to Consultant
as follows:
(i) the execution and delivery by Parent and Company of
this Agreement, and the consummation by Parent and Company of the transactions
set forth herein, have been duly authorized by all necessary corporate action on
the part of Parent and Company, respectively;
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(ii) this Agreement has been duly executed and delivered
by Parent and Company and constitutes a valid and binding obligation of Parent
and Company enforceable against Parent and Company in accordance with its terms;
and
(iii) when issued and delivered in accordance with this
Agreement, the Shares shall be duly authorized and validly issued, fully paid
and non-assessable.
(b) Consultant hereby represents and warrants to Parent and
Company as follows:
(i) this Agreement has been duly executed and delivered
by Consultant and constitutes a valid and binding obligation of Consultant
enforceable against Consultant in accordance with its terms;
(ii) Consultant has the qualifications and ability to
perform the Future Services in a professional manner, without the advice,
control, or supervision of Parent or Company;
(iii) Consultant acknowledges that either (a) it has a
pre-existing personal or business relationship with Parent, Company or any of
its officers, directors or controlling stockholders, or (b) by reason of
Consultant's business or financial experience, it is able to fend for itself,
can bear the economic risk of its acquisition of the Past Service Shares and
Future Service Shares (together, the "SHARES"), and has such knowledge and
experience in financial or business matters that it is capable of evaluating the
merits and risks of the acquisition of such Shares. Consultant (x) has reviewed
such of Parent's periodic reports (the "PERIODIC REPORTS") filed with the
Securities and Exchange Commission (the "SEC") from time to time pursuant to the
rules and regulations promulgated by the SEC under the Securities Exchange Act
of 1934, as amended (the "EXCHANGE Act"), as Consultant deems necessary or
appropriate, including, without limitation, Parent's Annual Report on Form
10-KSB for the year ended May 31, 2004, filed with the SEC on September 14,
2004, and Quarterly Report on Form 10-QSB for the quarter ended September 30,
2004, filed with the SEC on November 4, 2004, (y) understands that Parent and
Company have very limited operating history and have limited meaningful
historical financial data upon which to estimate revenues and operating
expenses, and (z) believes it has received all information and has conducted all
of the due diligence it considers necessary or appropriate in deciding whether
to acquire the Shares;
(iv) Consultant acknowledges that except as expressly
stated in Section 6(a) of this Agreement, neither Parent, Company nor any
officer, director, employee, agent or representative thereof have made any
representations or warranties of any kind to Consultant including
representations regarding future revenues, earnings or profits of Parent, the
future value of the Shares, the future capitalization of Parent or Company, the
occurrence or timing of any registered offering by Parent, the amount of future
business that may be transacted by Parent or Company or otherwise. Consultant
further understands that Parent's and Company's success in achieving their
respective goals and objectives in the future and implementing their respective
business plans cannot be predicted and are subject to numerous factors not
within the control of Parent or Company. Consultant is not acquiring the Shares
based upon representations, oral or written, by any person with respect to the
future value of, or income from, the Shares, or the length of time that
Consultant will be required to remain as the owner of the Shares but rather upon
an independent examination and judgment as to the prospects of Parent;
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(v) Consultant understands that the Shares have not been
registered under the Securities Act of 1933, as amended (the "SECURITIES ACT"),
or any other applicable state or federal securities statutes (together with the
Securities Act, the "ACTS"). Consultant is acquiring the Shares for investment,
for Consultant's own account, and with no present intention of reselling,
directly or indirectly, participating in any distribution of or otherwise
disposing of the Shares, except as permitted by Section 9 and 10 below.
Consultant understands that the Shares are subject to restrictions on transfer
and that Consultant may bear the economic risk of acquiring the Shares for an
indefinite period of time;
(vi) Consultant was not presented with or solicited by any
leaflet, public promotional meeting, circular, newspaper or magazine article,
radio or television advertisement or any other form of general advertising or
solicitation for the acquisition of the Shares;
(vii) Consultant has had reasonable opportunity to seek the
advice of independent counsel respecting its investment and the risks and the
implications thereof and has relied solely upon the advise of it's own tax and
legal advisors with respect to the tax and other legal aspects of the
acquisition; and
(viii) Consultant acknowledges that a legend substantially
as follows will be placed on the certificates representing the Shares:
THE SECURITIES HAVE NOT BEEN REGISTERED UNDER EITHER THE SECURITIES ACT
OF 1933 OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD,
OFFERED FOR SALE, TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT WITH RESPECT TO THE
SECURITIES UNDER THE SECURITIES ACT OF 1933 AND ANY APPLICABLE STATE
SECURITIES LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO ISSUER THAT
SUCH REGISTRATION IS NOT REQUIRED.
7. TRANSFER RESTRICTIONS. The Shares may not be offered for sale,
sold or transferred except pursuant to (i) an effective registration under the
Securities Act or in a transaction which is otherwise in compliance with the
Securities Act, (ii) an effective registration under any applicable state
securities statute or in a transaction otherwise in compliance with any
applicable state securities statute, and (iii) evidence of compliance with the
applicable securities laws of other jurisdictions. Consultant shall furnish to
Parent, and Parent shall be entitled to rely upon, an opinion of competent
securities counsel acceptable to Parent with respect to compliance with the
above laws.
In the event that Consultant satisfies the requirements of
Rule 144, Parent will, upon request, remove the legend set forth above from
Consultant's certificate; provided, however, that if Parent reasonably believes
that an opinion of counsel for Consultant is necessary, due to unusual
circumstances, in order to determine that the requirements of Rule 144 have been
satisfied, Parent shall request, and Consultant shall provide, such opinion
prior to the removal of the legend.
8. NOTICES. Unless otherwise specifically provided in this
Agreement, all notices or other communications (collectively and severally
called "NOTICES") required or permitted to be given under this Agreement, shall
be in writing, and shall be given by: (A) personal delivery (which form of
Notice shall be deemed to have been given upon delivery), (B) by telegraph or by
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private airborne/overnight delivery service (which forms of Notice shall be
deemed to have been given upon confirmed delivery by the delivery agency), or
(C) by electronic or facsimile or telephonic transmission, provided the
receiving party has a compatible device or confirms receipt thereof (which forms
of Notice shall be deemed delivered upon confirmed transmission or confirmation
of receipt). Notices shall be addressed to the address set forth in the
introductory Section of this Agreement, or to such other address as the
receiving party shall have specified most recently by like Notice, with a copy
to the other party.
9. REGISTRATION RIGHTS.
9.1 SB-2 REGISTRATION. On or prior to the date which is
thirty (30) calendar days from the Effective Date, Parent shall prepare and file
with the SEC a Securities Act registration statement on Form SB-2, or such other
form (other than Form S-4 or S-8, or any successor form) (the "REGISTRATION
STATEMENT") sufficient to register the resale of the Shares held by the
Consultant (or such other persons to whom Shares are to be issued as set forth
on Schedule I hereto) for an offering to be made on a continuous basis pursuant
to Rule 415 promulgated under the Securities Act. Parent shall use its
commercially reasonable efforts to cause the Registration Statement to be
declared effective under the Securities Act as promptly as possible after the
filing thereof, and shall use its commercially reasonable efforts to keep the
Registration Statement continuously effective, and updated as required, under
the Securities Act until the date which is two (2) years after the Effective
Date or such earlier date when all Shares covered by the Registration Statement
have been sold or may be sold without volume restrictions pursuant to Rule
144(k) promulgated under the Securities Act as determined by counsel to Parent
pursuant to a written opinion letter to such effect, addressed and acceptable to
the Parent's transfer agent. Notwithstanding the foregoing, the Company's
obligations hereunder to file the Registration Statement and to keep the
Registration Statement continuously effective, and updated as required, under
the Securities Act shall be suspended if the fulfillment of such obligations (i)
would require the Company to make a disclosure that would, in the reasonable
judgment of the Parent's Board of Directors, have a material adverse effect on
the Parent or a material adverse effect on the future prospects of the Parent or
its stockholders, or (ii) would adversely affect, or would, in the reasonable
judgment of the Parent's Board of Directors, be adversely affected by, the SEC's
ongoing investigation of Parent and certain of its directors and officers as
previously disclosed to Consultant and as more fully set forth in Parent's
Periodic Reports.
9.2 PIGGYBACK REGISTRATION RIGHTS.
9.2.1 RIGHT TO PIGGYBACK. Whenever Parent proposes
to register any of its securities under the Securities Act (other than on a
registration on Form S-4 or S-8 or any successor form or a registration of
non-convertible debt securities) on a registration form which may be used for
the registration of any Shares (a "PIGGYBACK REGISTRATION"), Parent will give
written notice to Holder of its intention to effect such a registration and will
use its commercially reasonable efforts to include in such registration all
Shares (in accordance with the priorities set forth in Sections 9.2.2 and 9.2.3
below) with respect to which Parent has received written requests for inclusion
by Consultant within fifteen (15) days after the delivery of Parent's notice.
9.2.2 PRIORITY ON PRIMARY REGISTRATIONS. If a
Piggyback Registration is an underwritten primary registration on behalf of
Parent and any Shares are included in the
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underwritten offering and the managing underwriters advise Parent in writing
that in their opinion the number of securities requested to be included in such
underwritten offering exceeds the number which can reasonably be sold in such
offering, Parent will include in such underwritten offering first, the
securities that Parent proposes to sell; second, the securities that any holder
of registration rights issued prior to the Effective Date proposes to sell; and
third, the Shares requested to be included therein by the Holder.
9.2.3 PRIORITY ON SECONDARY REGISTRATIONS. If a
Piggyback Registration is an underwritten secondary registration on behalf of
holders of Parent's securities and any Shares are included in the underwritten
offering and the managing underwriters advise Parent in writing that in their
opinion the number of securities requested to be included in such underwritten
offering exceeds the number which can reasonably be sold in such offering,
Parent will include in such underwritten offering first, the securities that any
holder of registration rights issued prior to the Effective Date proposes to
sell; and second, the Shares requested to be included therein by the Holder.
9.2.4 SELECTION OF UNDERWRITERS. In connection
with any Piggyback Registration in which Consultant has elected to include
Shares, Parent shall have the right to select the managing underwriters to
administer any offering of Parent's securities in which Parent participates.
9.3 INDEMNIFICATION.
9.3.1 INDEMNIFICATION BY HOLDERS. Each of
Consultant and the persons set forth on Schedule I hereto (each a "HOLDER," and
collectively, the "HOLDERS") shall, if Shares held by such Holder are included
in a Securities Act registration effected pursuant to this Section 9 severally
and not jointly, indemnify and hold harmless Parent, its directors, officers,
agents and employees, each person who controls Parent (within the meaning of
Section 15 of the Securities Act and Section 20 of the Exchange Act), and the
directors, officers, agents or employees of such controlling persons
(collectively, the "Parent Indemnitees"), to the fullest extent permitted by
applicable law, from and against all losses, claims, damages, liabilities, costs
(including, without limitation, reasonable attorneys' fees) and expenses
(collectively, "LOSSES"), as incurred, to the extent arising out of or based
upon: (x) such Holder's failure to comply with the prospectus delivery
requirements of the Securities Act, or (y) any untrue or alleged untrue
statement of a material fact contained in the Registration Statement, any
prospectus, or any form of prospectus, or in any amendment or supplement thereto
or in any preliminary prospectus, or arising out of or relating to any omission
or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading (i) to the extent, but
only to the extent, that such untrue statement or omission is contained in any
information so furnished in writing by such Holder to Parent specifically for
inclusion in the Registration Statement or such prospectus, or (ii) to the
extent that (1) such untrue statements or omissions are based solely upon
information regarding such Holder furnished in writing to Parent by such Holder
expressly for use therein, or to the extent that such information relates to
such Holder or such Holder's proposed method of distribution of Shares and was
reviewed and expressly approved in writing by such Holder expressly for use in
the Registration Statement, such prospectus or such form of prospectus or in any
amendment or supplement thereto, or (2) the use by such Holder of an outdated or
defective prospectus after Purchaser has notified such Holder in writing that
such prospectus is outdated or defective. In no event shall the liability of any
selling Holder
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hereunder be greater in amount than the dollar amount of the net proceeds
received by such Holder upon the sale of the Shares giving rise to such
indemnification obligation. In no event shall any Holder be liable for indemnity
with respect to amounts paid in settlement by Parent Indemnitees if such
settlement is effected without the consent of such Holder (which consent shall
not be unreasonably withheld).
9.3.2 INDEMNIFICATION BY PARENT. If Shares held by
any Holder are included in a Securities Act registration effected pursuant to
this Section 9, Parent will indemnify such Holder, each of its directors,
officers, agents or employees, each person who controls such Holder (within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act),
and the directors, officers, agents or employees of such controlling person
(collectively, "Holder Indemnitees"), to the fullest extent permitted by
applicable law, from and against all Losses, as incurred, to the extent arising
out of or based upon: (x) any knowing violation by Parent of the Securities Act
or any rule or regulation thereunder applicable to Parent and relating to action
or inaction required of Parent in connection with any such registration, or (y)
any untrue or alleged untrue statement of a material fact contained in the
Registration Statement, any prospectus, or any form of prospectus, or in any
amendment or supplement thereto or in any preliminary prospectus, or arising out
of or relating to any omission or alleged omission of a material fact required
to be stated therein or necessary to make the statements therein not misleading,
except that Parent will not be liable under this clause (y) in any such case to
the extent that any such Losses arise out of or are based upon any untrue
statement or omission based solely upon information furnished in writing to
Parent by such Holder specifically for use therein. In no event shall Parent be
liable for indemnity of amounts paid in settlement by Parent if such settlement
is effected without the consent of Parent (which consent shall not be
unreasonably withheld).
10. LOCK-UP. Notwithstanding anything else herein to the contrary,
including, without limitation, the provisions of Sections 7 or 9 hereto, and
notwithstanding the provisions of Rule 144 promulgated under the Securities Act,
or of any registration statement that may register the resale of the Shares,
Consultant agrees that, for a period of two (2) years following the Effective
Date, Consultant shall not sell, transfer, assign, make any short sale of, loan,
grant any option for the purchase of, or otherwise dispose of or trade
(collectively, a "SALE") any of the Shares or other securities of Parent
otherwise acquired by Consultant after the Effective Date, including pursuant to
the Registration Statement, except to the extent that such Sale, together with
all Sales of restricted and other securities of the same class for the account
of Consultant within the preceding three months, does not exceed one percent
(1%) of the Shares or other securities of Parent then outstanding as shown by
the most recent report or statement published by Parent.
11. MISCELLANEOUS.
11.1 INDEPENDENT CONTRACTOR; CONSULTANT'S EMPLOYEES. It is
the intention of Parent, Company and Consultant that Parent and Company, on the
one hand, and Consultant, on the other hand are, and shall be deemed to be,
independent contractors with respect to the subject matter of this Agreement,
and nothing contained herein shall be deemed or construed in any manner
whatsoever as creating any partnership, joint venture, employment or other
similar relationship between the Parent and Company and Consultant. Consultant
agrees that it will cause any of its directors, officers, employees and
independent contractors who render services
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to Parent or Company on behalf of Consultant to comply with all of Consultant's
covenants and agreements set forth in this Agreement.
11.2 CHOICE OF LAW AND VENUE. This Agreement shall be
governed according to the laws of the state of California, notwithstanding the
conflict of laws principles thereof. Subject to the Arbitration provisions
herein, venue for any legal or equitable action between Parent or Company, on
the one hand, and Consultant, on the other hand, which relates to this Agreement
shall be in the state or federal courts located in Los Angeles, California.
11.3 INJUNCTIVE RELIEF. Consultant agrees that in the
event of any breach by Consultant of any of the covenants and agreements set
forth in this Agreement, including, without limitation, the covenants and
agreements set forth in Paragraphs 2, 4, 5.4, 7 and 10 hereof, Parent and
Company would encounter extreme difficulty in attempting to prove the actual
amount of damages suffered by each as a result of such breach and would not have
adequate remedy at law in such event. Consultant therefore agrees that, in
addition to any other remedy available at law or in equity, in the event of such
breach, Parent and Company shall be entitled to seek and receive specific
performance and temporary, preliminary and permanent injunctive relief from
violation of any of said covenants and agreements from any court of competent
jurisdiction without necessity of proving the amount of any actual damage to
Parent and/or Company resulting from such breach.
11.4 SUCCESSORS AND ASSIGNS. This Agreement shall be
binding on the parties hereto and their respective successors and assigns.
Consultant's duties, obligations, rights and privileges hereunder may not be
delegated or assigned by him or her in any manner. The benefits hereunder with
respect to the rights of Parent or Company may be assigned by Parent or Company
to any other corporation or other business entity which succeeds to all or
substantially all of the business of Parent or Company through merger,
consolidation, corporate reorganization or by acquisition of all or
substantially all of the assets of Parent or Company.
11.5 COUNTERPARTS. This Agreement may be executed manually
or by facsimile signature in two or more counterparts, each of which shall be
deemed an original, and all of which together shall constitute but one and the
same instrument.
11.6 WAIVER. Waiver by either of the parties of any breach
of any provision of this Agreement shall not operate or be construed as a waiver
of any prior or subsequent breach of the same or any other provision hereof.
11.7 SURVIVAL. Sections 4, 5.4, 7, 8, 9, 10 and 11 shall
survive the termination of this Agreement.
11.8 ATTORNEYS' FEES. The prevailing party in any
litigation instituted under this Agreement shall, in addition to other remedies,
be entitled to be reimbursed by the other party for all expenses of such
litigation, including reasonable attorneys' fees.
11.9 ARBITRATION. The parties hereby agree that all
controversies, claims and matters of difference shall be resolved by binding
arbitration before JAMS/Endispute (the "JAMS") located in Los Angeles,
California according to the rules and practices of the JAMS from time-to-time in
force; PROVIDED HOWEVER that the parties hereto reserve their rights to seek and
obtain
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injunctive or other equitable relief from a court of competent jurisdiction,
without waiving the right to compel such arbitration pursuant to this section.
11.10 SEVERABILITY. If any term or provision of this
Agreement or the application thereof to any person or circumstance shall, to any
extent, be determined to be invalid, illegal or unenforceable under present or
future laws effective during the term of this Agreement, then and, in that
event: (A) the performance of the offending term or provision (but only to the
extent its application is invalid, illegal or unenforceable) shall be excused as
if it had never been incorporated into this Agreement, and, in lieu of such
excused provision, there shall be added a provision as similar in terms and
amount to such excused provision as may be possible and be legal, valid and
enforceable, and (B) the remaining part of this Agreement (including the
application of the offending term or provision to persons or circumstances other
than those as to which it is held invalid, illegal or unenforceable) shall not
be affected thereby and shall continue in full force and effect to the fullest
extent provided by law.
11.11 ENTIRE AGREEMENT. This Agreement and the SF Agreement
constitute the entire agreement and understanding of Parent, Company and
Consultant, respectively and as applicable, in respect of the subject matter
identified herein and therein, respectively, and supersede all prior
understandings, agreements, or representations by or among Parent or Company, on
the one hand, and Consultant, on the other hand, written or oral, to the extent
they relate in any way to the subject matter identified herein or therein.
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IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as of the Effective Date.
"CONSULTANT"
BROKERS UNLIMITED, INC.
By: /S/ JOSEPH P. REGOLI
------------------------------
Name: Joseph P. Regoli
Title: President/CEO
"PARENT"
SEALIFE CORPORATION
By: /S/ ROBERT MCCASLIN
------------------------------
Name: Robert McCaslin
Title: CEO
"COMPANY"
SEALIFE MARINE PRODUCTS, INC.
By: /S/ BARRE RORABAUGH
------------------------------
Name: Barre Rorabaugh
Title: President
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SCHEDULE I
Parent is hereby directed to have issued and delivered the Past Services Shares
as follows:
Name Number of Shares
- ----------------- ----------------
Consultant 111,500
James M. Barron 225,000
Stephen P. Barron 225,000
Joseph P. Regoli 225,000
- ----------------- ----------------
TOTAL: 786,500
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EXHIBIT A
SERVICES
PAST SERVICES
1) Advertising................................$9,800.00
2) Trade Shows...............................$30,000.00
3) Color Charts...............................$3,100.00
4) Printing.....................................$150.00
5) Display Booth..............................$4,500.00
6) European Approval Trip.....................$3,700.00
7) European Approval Process..................$4,000.00
8) BUI Collateral Development................$23,000.00
9) Technical Support.........................$20,375.00
10) Press Releases.............................$3,000.00
11) Rat Test.....................................$800.00
12) Sub-Contract Development ..................$6,250.00
13) Shipping....................................$5250.00
14) Zebra Mussel Test.........................$12,800.00
15) Warranty Development.......................$1,625.00
16) Design / Preparation......................$15,000.00
17) Quality of Shipment.......................$30,000.00
18) Delivery of Product.......................$30,000.00
19) Investment Relations......................$15,000.00
20) Sales Effort 3/11/03 to 1/20/04...........$64,790.00
FUTURE SERVICES
1) Rat Test...................................$9,000.00
2) Advertising...............................$35,000.00
3) Navy Test.................................$25,000.00
4) Color Charts...............................$6,000.00
5) Printing Budget...........................$25,000.00
6) European Approval Process.................$15,000.00
13
EXHIBIT B
SeaLife Corporation
5601 Slauson Avenue
Suite 283
Culver City, CA 90230
RE: CONSULTING AGREEMENT DATED NOVEMBER __, 2004, BY AND AMONG
SEALIFE CORPORATION, SEALIFE MARINE PRODUCTS, INC., AND
BROKERS UNLIMITED, INC.
Dear Sir or Madam:
Reference is made to that certain Consulting Agreement dated November
__, 2004 (the "CONSULTING Agreement"), by and among SeaLife Corporation, a
Delaware corporation ("PARENT"), SeaLife Marine Products, Inc., a California
corporation and wholly-owned subsidiary of Parent ("COMPANY"), and Brokers
Unlimited, Inc. ("Consultant"). Capitalized terms used but not otherwise defined
herein shall have the meanings ascribed to such terms in the Consulting
Agreement.
Pursuant to the provisions of the Consulting Agreement, Consultant has
directed Parent to have issued and delivered _____________ shares of Parent
Common Stock to the undersigned. In consideration thereof, and pursuant to the
provisions of the Consulting Agreement, the undersigned has agreed to deliver
this letter.
By executing where indicated below, the undersigned hereby represents,
warrants, certifies and confirms as follows:
1. This letter has been duly executed and delivered by the
undersigned and constitutes a valid and binding letter of the undersigned,
enforceable against the undersigned in accordance with its terms.
2. The undersigned acknowledges that either (a) he has a
pre-existing personal or business relationship with Parent, Company or any of
its officers, directors or controlling stockholders, or (b) by reason of his
business or financial experience, he is able to fend for himself, can bear the
economic risk of the acquisition of the shares of Parent Common Stock set forth
above (the "SHARES"), and has such knowledge and experience in financial or
business matters that he is capable of evaluating the merits and risks of the
acquisition of such Shares. The undersigned (a) has reviewed such of Parent's
periodic reports (the "PERIODIC REPORTS") filed with the Securities and Exchange
Commission (the "SEC") from time to time pursuant to the rules and regulations
promulgated by the SEC under the Securities Exchange Act of 1934, as amended
(the "EXCHANGE Act"), as the undersigned deems necessary or appropriate,
including, without limitation, Parent's Annual Report on Form 10-KSB for the
year ended May 31, 2004, filed with the SEC on September 14, 2004, and Quarterly
Report on Form 10-QSB for the quarter ended September 30, 2004, filed with the
SEC on November 4, 2004, (b) understands that Parent and Company have very
limited operating history and have limited meaningful historical financial data
upon which to estimate revenues and operating expenses, and (c) believes he has
received all information and has conducted all of the due diligence he considers
necessary or appropriate in deciding whether to acquire the Shares.
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3. The undersigned acknowledges that except as expressly stated
in Section 6(a) of the Consulting Agreement, neither Parent, Company nor any
officer, director, employee, agent or representative thereof have made any
representations or warranties of any kind to the undersigned including
representations regarding future revenues, earnings or profits of Parent, the
future value of the Shares, the future capitalization of Parent or Company, the
occurrence or timing of any registered offering by Parent, the amount of future
business that may be transacted by Parent or Company or otherwise. The
undersigned further understands that Parent's and Company's success in achieving
their respective goals and objectives in the future and implementing their
respective business plans cannot be predicted and are subject to numerous
factors not within the control of Parent or Company. The undersigned is not
acquiring the Shares based upon representations, oral or written, by any person
with respect to the future value of, or income from, the Shares, or the length
of time that the undersigned will be required to remain as the owner of the
Shares but rather upon an independent examination and judgment as to the
prospects of Parent.
4. The undersigned understands that the Shares have not been
registered under the Securities Act of 1933, as amended (the "SECURITIES ACT"),
or any other applicable state or federal securities statutes (together with the
Securities Act, the "ACTS"). The undersigned is acquiring the Shares for
investment, for the undersigned's own account, and with no present intention of
reselling, directly or indirectly, participating in any distribution of or
otherwise disposing of the Shares, except as permitted by Section 9 and 10 of
the Consulting Agreement. The undersigned understands that the Shares are
subject to restrictions on transfer and that the undersigned may bear the
economic risk of acquiring the Shares for an indefinite period of time.
5. The undersigned was not presented with or solicited by any
leaflet, public promotional meeting, circular, newspaper or magazine article,
radio or television advertisement or any other form of general advertising or
solicitation for the acquisition of the Shares.
6. The undersigned has had reasonable opportunity to seek the
advice of independent counsel respecting his investment and the risks and the
implications thereof and has relied solely upon the advise of his own tax and
legal advisors with respect to the tax and other legal aspects of the
acquisition.
7. The undersigned acknowledges that a legend substantially as
follows will be placed on the certificates representing the Shares:
THE SECURITIES HAVE NOT BEEN REGISTERED UNDER EITHER THE SECURITIES ACT
OF 1933 OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD,
OFFERED FOR SALE, TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT WITH RESPECT TO THE
SECURITIES UNDER THE SECURITIES ACT OF 1933 AND ANY APPLICABLE STATE
SECURITIES LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO ISSUER THAT
SUCH REGISTRATION IS NOT REQUIRED.
8. The undersigned has reviewed Sections 7, 9.3 and 10 of the
Consulting Agreement and hereby acknowledges and agrees that the undersigned
shall be bound, and the Shares shall be governed, by the terms of such sections,
as if the undersigned was the "Consultant" in, and an original party to, such
agreement.
15
9. The undersigned shall have the same registration rights with
respect to the Shares as are granted to Consultant pursuant to Section 9 of the
Consulting Agreement.
The undersigned hereby represents that the information furnished above
is correct and complete. In the event that any of the information furnished is
found to be no longer accurate or complete, the undersigned will promptly notify
Parent in writing. Parent is hereby expressly authorized to rely upon the
foregoing.
Very truly yours,
---------------------------------------
[Name]
ACKNOWLEDGED AND AGREED:
BROKERS UNLIMITED, INC.
By:
-----------------------------------------
Name:
Title:
SEALIFE CORPORATION
By:
-----------------------------------------
Name:
Title:
SEALIFE MARINE PRODUCTS, INC.
By:
-----------------------------------------
Name:
Title:
16