Exhibit 10.34
CONSULTING AGREEMENT
This consulting agreement (this "Agreement"), effective as of August 20, 2001 is
entered by and between vFinance, Inc. (OTCBB.VFIN) ("the Company") and Insight
Capital Consultants Corporation, a California corporation ("Consultant").
RECITALS
WHEREAS, the Company is a public the Company with its shares of common stock
trading on the Over the Counter Bulletin Board, in the United States; and
WHEREAS, Consultant has experience in the area of corporate finance, investor
communications and financial and investor public relations; and
WHERAS, the Company desires to engage the services of Consultant to assist and
consult with the Company in matters concerning corporate finance, investor
communications and public relations with existing shareholders, brokers, dealers
and other investment professionals as to the Company's current and proposed
activities;
NOW THEREFORE, in consideration of the premises and the mutual covenants and
agreements herein set forth, and intending to be legally bound, the Company and
Consultant agree as follows:
1. TERM OF CONSULTANCY. The Company engages Consultant to act in a
consulting capacity to the Company, and Consultant agrees to provide
services to the Company commencing on the date first set forth above
and ending six months later (the "term of this Agreement"). This
Agreement may be terminated at any time by either party for any reason,
with or without cause.
2. DUTIES OF CONSULTANT. The Consultant will generally provide the
following specified consulting services (the "Services") through its
officers and employees during the term of this Agreement:
a. Advise and assist the Company in developing and implementing
appropriate plans and materials for presenting the Company and
its business plans, strategy and personnel to the financial
community, establishing an image for the Company in the
financial community, and creating the foundation for
subsequent financial public relations efforts;
b. Introduce the Company to the financial community;
c. With the cooperation of the Company, maintain an awareness
during the term of this Agreement of the Company's plans,
strategy, and personnel, as they may evolve during such
period, and advise and assist the Company in communicating
appropriate information regarding such plans, strategy and
personnel to the financial community;
d. Assist and advise the Company with respect to its (i)
stockholder and investor relations, (ii) relations with
brokers, dealers, analysts and other investment professionals,
and (iii) financial and media public relations generally;
e. Perform the functions generally assigned to
investor/stockholder relations departments in major
corporations, including responding to telephone and written
inquiries (which may be referred to the Consultant by the
Company); assisting in the preparation of press releases for
the Company with the Company's involvement and approval or
reviewing press releases, reports and other communications
with or to shareholders, the investment community and the
general public; advising with respect to the timing, form,
distribution and other matters related to such releases,
reports, communications and consulting with respect to
corporate symbols, logos, names, the presentation of such
symbols, logos and names, and other matters relating to
corporate image.
f. Upon receipt of the Company's approval, disseminate
information regarding the Company to shareholders, brokers,
dealers and other investment community professionals and the
general investing public.
g. Upon receipt of the Company's approval, conduct meetings in
person or by telephone, with brokers, dealers, analysts, other
investment professionals and the general investment public;
h. At the Company's request, review business plans, strategies,
mission statements, budgets, proposed transactions and other
plans for the purpose of advising the Company of the
investment community implications thereof; and
i. Otherwise perform as the Company's financial relations and
public relations consultant.
3. ALLOCATION OF TIME AND ENERGIES. The Consultant will perform the
Services in a professional manner in accordance with accepted industry
standards and in compliance with applicable securities laws and
regulations. Although no specific hours-per-day requirement will be
required, the parties acknowledge and agree that a disproportionately
large amount of the effort to be extended and the costs to be incurred
by the Consultant and the benefits to be received by the Company are to
be expected to occur upon and shortly after, and in any event, within
two months of the effectiveness of this Agreement. It is explicitly
understood that Consultants performance of its duties hereunder will in
no way be measured by the price of the Company's common stock, nor the
trading volume of the Company's common stock. It is understood that the
Company is entering into this Agreement with the understanding that
▇▇▇▇▇ ▇▇▇▇▇ will be an officer and a director of Consultant during the
entire term of this Agreement.
4. REMUNERATION As full and complete compensation for Consultant's
agreement to perform the Services, the Company shall compensate the
Consultant as follows:
a. For undertaking this engagement and for other good and
valuable consideration, the Company agrees to issue and
deliver to the Consultant a "Commencement Bonus" payable in
the form of 150,000 shares of the Company's Common Stock
("Common Stock"). These shares shall be payable on the 29th of
each month at a rate of 25,000 shares per month
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("Tranche") for six months. The first Tranche of the
Commencement Bonus shall be issued to the Consultant
immediately following execution of this Agreement with the
second Tranche due September 29, 2001. Each Tranche shall,
when issued to the Consultant be fully paid and
non-assessable. The Company understands and agrees that
Consultant has forgone significant opportunities to accept
this engagement and the Company derives substantial benefit
from the execution of this Agreement and the ability to
establish its relationship with Consultant. The Tranches of
Common Stock issued as a Commencement Bonus, therefore,
constitute payment for Consultant's agreement to consult with
the Company and are a nonrefundable and non-ratable retainer
once each such Tranche is paid to Consultants. Such shares are
not a prepayment for future services. If the Company attempts
to terminate this Agreement prior to the expiration of its
term for any reason whatsoever, it is agreed and understood
that Consultant will not be requested or demanded by the
Company to return any of the Tranches paid to it hereunder
prior to the date of such termination. Any remaining Tranches
after such termination not yet paid to Consultant shall be
retained by the Company and shall not be due and owing to
Consultant.
b. All Tranches of the Common Stock issued pursuant to this
Agreement shall be issued in the name of Consultant. The
Company agrees that it will use its best efforts to include
all shares issued to Consultant hereunder in the Company's
next Registration Statement filed with the SEC pursuant to
which such shares could be registered and will use its best
efforts to cause such Registration Statement to be declared
effective by the SEC as soon as possible thereafter.
Consultant agrees that it will not sell or transfer until
August 20, 2002 any of the shares of the Company's stock
issued to it hereunder. Additionally the Company agrees to pay
Consultant the sum of $3,000.00 cash per month due and payable
on twenty-ninth day of each month on this Agreement beginning
September 29, 2001.
c. Consultant acknowledges that the shares of Common Stock to be
issued pursuant to this agreement (collectively, the "Shares")
have not been registered under the Securities Act of 1933 and
accordingly are "restricted securities" within the meaning of
Rule 144 of the Act. As such, the shares may not be resold or
transferred unless the Company has received an opinion of
counsel reasonably satisfactory to the Company that such a
resale or transfer is exempt from the registration
requirements of that Act.
5. FINDERS FEE
a. If, during the term of this Agreement, or within one-year
thereafter any Fee Transaction (as herein defined) occurs,
then the Company shall pay to Consultant a finder's fee (the
"Fee") equal to two and one half percent (2.5%) of the
Consideration (as herein defined).
b. The term "Fee Transaction" means 1) a merger, consolidation or
a sale or exchange of substantially all of the stock of the
Company or its assets, 2)
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such other transaction as may be used in the disposal of a
substantial portion of the ownership interests in or assets of
the Consultant or 3) any investment made directly or
indirectly in, or debt financing provided to or for the
benefit of, the Company or its shareholders by any third party
introduced by Consultant to the Company during the term of
this engagement. The term "Consideration" means the aggregate
amount of cash and the fair market value (on the date of
payment) of securities or assets received by or for the
benefit of the Company or its shareholders in connection with
a Fee Transaction. "Consideration" includes, but is not
limited to, the total fair market value of (a) cash,
securities, assets and other tangible property received by the
Company or its shareholders in a Fee Transaction or
distributable to the Company or its shareholders upon
liquidation or dissolution of the Company following a Fee
Transaction, (b) any amounts payable to the Company or its
shareholders under any non-compete agreement or other
agreements entered in connection with a Fee Transaction, and
(c) any compensation payable to any shareholder of the Company
under any employment or consulting contract entered in
connection with a Fee Transaction but only to the extent such
compensation exceeds the then current compensation of such
shareholder.
c. If the Consideration shall consist entirely of cash paid at
the closing of a Fee Transaction, the Fee payable to
Consultant shall be paid to Consultant upon such closing. To
the extent the Consideration is paid at closing and consists
wholly or partially of stock, other securities or other
property (other than cash), all or a portion of Fee may be
paid to Consultant in the same form (i.e., stock, other
securities or other property) and in the same proportions in
which the Consideration is received by the Company or its
stockholders, as the case may be.
d. If the Consideration shall consist entirely of cash but the
payment of all or any portion of the Consideration shall be
deferred and shall not be made until after closing of a Fee
Transaction, the Company may, in its discretion, pay to
Consultant the Fee on the same pro rata basis and at the same
time or times as the Consideration is received by the Company
or the Company's stockholders (as the case may be). If any of
the deferred payments of the Consideration consists wholly or
partially of stock, other securities or other property (other
than cash), then all or a portion of the Fee may be paid to
Consultant in the same form (i.e., stock, other securities or
other property) at the same time and in the same proportions
in which the Consideration is received by the Company or its
stockholders, as the case may be.
e. Notwithstanding all of the foregoing provisions of this
Section 5, in lieu of payment of portions of the Fee as the
Consideration is so received, the Company may, at its option,
pay to the Consultant the entire Fee in cash at closing,
discounted to take into account the reasonably projected rate
of inflation, and the period over which the Consideration is
to be received, the then-generally-prevailing interest rate
for unsecured debt obligations for such period of time of
corporate borrowers of the highest credit standing, and, if
applicable, the factors set forth in the immediately preceding
sentence with regard to Consideration in the form of stock,
other securities or other property.
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f. The Fee payable to Consultant will be in addition to any fees
payable by the Company to any other intermediary, if any,
which shall be per separate agreements negotiated between the
Company and such other intermediary. It is specifically
understood that Consultant is not nor does it hold itself out
to be a Broker/Dealer or investment adviser, but rather merely
a "Finder" in reference to the Company procuring financing
sources and acquisition and merger candidates.
g. It is further understood that the Company, and not Consultant,
is responsible to perform any and all due diligence on any
lender, equity purchaser or acquisition/merger candidate
introduced to it by Consultant under this Agreement, prior to
the Company receiving funds or closing on any acquisition.
h. Consultant will notify the Company of introductions it makes
for potential sources of financing or acquisitions in a timely
manner (within 3 days of introduction). If the Company has a
preexisting relationship with such nominee and believes such
party should be excluded from the Agreement, then the Company
will notify Consultant immediately of such circumstances via
facsimile memo.
6. EXPENSES. Consultant agrees to pay for all its expenses (phone, labor,
etc.), other than extraordinary items for which the Company will
reimburse Consultant provided Company has pre-approved of such
extraordinary items in advance. Such extraordinary items include travel
and entertainment required by/or specifically requested by the Company,
luncheons or dinners for large groups of investment professionals, mass
faxing to a sizable percentage of the Company's constituents, investor
conference calls, print advertisements in publications and like
expenses approved by the Company prior to its incurring an obligation
for reimbursement.
7. INDEMNIFICATION.
a. The Company agrees to indemnify and hold Consultant harmless
from and against any losses, damages or liabilities related to
or arising out of Consultant's engagement, and will reimburse
Consultant for all reasonable expenses (including reasonable
counsel fees) as they are incurred by Consultant in connection
with investigating, preparing for or defending any action or
claim related thereto, whether or not in connection with
pending or threatened litigation in which Consultant is a
party. The Company will not, however, be responsible for any
actions, claims, liabilities, losses, damages or expenses
which which resulted primarily from the bad faith or gross
negligence of Consultant. The Company also agrees that
Consultant shall not have any liability for or in connection
with such engagement, except for any such liability for
losses, claims, damages, liabilities or expenses incurred by
the Company that result primarily from the bad faith or gross
negligence of Consultant. In the event that the foregoing
indemnity is unavailable (except by reason of the bad faith or
gross negligence of Consultant), then the Company shall
contribute to
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amounts paid or payable by Consultant in respect of its
losses, claims, damages and liabilities in such proportion as
appropriately reflects the relative benefits received by, and
fault of, it and Consultant in connection with the matters as
to which such losses, claims, damages or liabilities relate
and other equitable considerations; provided, however, that in
no event shall the amount to be contributed by Consultant
exceed the amounts actually received by Consultant. The
foregoing shall be in addition to any rights that Consultant
may have at common law or otherwise and shall extend upon the
same terms to and inure to the benefit of any director,
officer, employee, agent or controlling person of Consultant.
8. REPRESENTATIONS. The Company warrants and represents that all oral
communications, written documents or materials furnished to Consultant
are accurate, and the Consultant warrants and represents that all
communications by Consultant with the public, with respect to the
financial affairs, operations, profitability and strategic planning of
the Company will be in accordance with information provided to it by
the Company. The Consultant may rely upon the accuracy of the
information provided by the Company without independent investigation.
Consultant represents that it is not required to maintain any licenses
and registrations under federal or any state regulations necessary to
perform the services set forth herein. Consultant acknowledges that to
the best of its knowledge, the performance of the Services will not
violate any rule or provision of any regulatory agency having
jurisdiction over Consultant. Consultant acknowledges that to the best
of its knowledge, Consultant and its officers and directors are not the
subject of any investigation, claim, decree or judgment involving any
violation of the SEC or securities law. The Company acknowledges that
to the best of its knowledge that it has not violated any rule or
provision of any regulatory agency having jurisdiction over the
Company. The Company also acknowledges that, to the best of its
knowledge, the Company is not the subject of any investigation, claim,
decree or judgment involving any violation of the SEC or securities
laws.
9. STATUS AS INDEPENDENT CONTRACTOR. Consultant's engagement pursuant to
this Agreement shall be as independent contractor, and not as employee,
officer or other agent of the Company. Neither party to this Agreement
shall represent or hold itself out to be the employer or employee of
the other. Consultant further acknowledges the consideration provided
hereinabove is a gross amount of consideration and that the Company
will not withhold from such consideration any amounts as to income
taxes, social security payments or any other payroll taxes. All such
income taxes and other such payment shall be made or provided for by
Consultant and the Company shall have no responsibility or duties
regarding such matters. Neither the Company nor the Consultant
possesses the authority to bind each other in any agreements without
the express written consent of the entity to be bound.
10. ATTORNEYS FEES. If any legal action or any arbitration or other
proceeding is brought for the enforcement or interruption of the
Agreement, or because of alleged dispute, breach, default or
misrepresentation in connection with or related to this Agreement, the
successful or prevailing party shall be entitled to recover reasonable
attorney's fees and other costs in connection with that action or
proceeding, in addition to any other relief to which they may be
entitled.
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11. WAIVER. The waiver by either party of a breach of any provision of this
agreement by the other party shall not operate or be construed as a
waiver of any subsequent breach by such other party.
12. NOTICES. All notices, requests, and other communications hereunder
shall be deemed to be duly given if sent by U.S. mail, postage prepaid,
addressed to the other party at their last known address.
Either party may change address to which notices for it shall be
addressed by providing notice of such change to the other party.
13. CHOICE OF LAW, JURISDICTION AND VENUE. This Agreement shall be governed
by, construed and enforced in accordance with the internal laws of the
State of Florida, without giving effect to its conflict of laws or
choice of law principles.
14. ARBITRATION Any controversy or claim arising out of or relating to this
Agreement, or the alleged breach thereof, or relating to Consultant's
activities or remuneration under this Agreement, shall be settled by
binding arbitration in Boca Raton, Florida, in accordance with the
applicable rules of the American Arbitration Association, and judgment
on the award rendered by the arbitrator(s) shall be binding on the
parties and may be entered in any court having jurisdiction.
15. COMPLETE AGREEMENT. This Agreement contains the entire agreement of the
parties relating to the subject matter hereof. This Agreement and its
terms may not be changed orally but only by an agreement in writing
signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
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AGREED TO:
"The Company" ▇▇▇▇▇▇▇▇.▇▇▇, Inc.
-----------------------------------------
Date: August 20, 2001 By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------- -------------------------------------
President & CEO
& Its Duly Authorized Officer
"Consultant" INSIGHT CAPITAL CONSULTANTS CORP.
Date: August 20, 2001 By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------- -------------------------------------
▇▇▇▇▇ ▇▇▇▇▇, President
& Its Duly Authorized Officer
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