EXHIBIT 10.2
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") is made this 1st day of April
(the "Effective Date"), by and between Corporate Imaging, with offices located
at 11024 North 28th Drive, Suite 200, Phoenix, Arizona USA 85029 ("Consultant"),
and Mariculture Systems, Inc., a Washington corporation with offices located at
7221 196th St. S.W. Suite D2, Lynnwood, Washington 98036 ("Client").
RECITALS
A. Consultant, and its network of professionals, is experienced in providing
business management, public and investor relations and other related
corporate advisory services and assistance to business organizations,
institutions and firms;
B. Consultant is also experienced in advising and assisting business
organizations, institutions and firms to manage, institute and otherwise
effectuate capital restructuring, such services include without limitation
the introduction of such entities to appropriate lenders and equity
investors for purpose of attracting and raising debt and/or equity capital;
C. Client will be a publicly traded corporation;
D. Client wishes to engage the services of Consultant and its network of
professionals to include Client within the select and limited group of
clients for which Consultant and the professionals provide various business
managerial and consulting services;
E. Consultant agrees to be retained for the foregoing purposes for which
Consultant has the requisite skills, abilities and qualifications, subject
to the terms and conditions provided herein.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are expressly acknowledge, Client and
Consultant agree as follows:
1. Recitals
The foregoing recitals are true and correct and are incorporated herein
by this reference.
2. Engagement of Consultant
Client hereby appoints Consultant and Consultant's professionals
(Consultant's Professionals") to be its business, managerial, and public
relations counsel and hereby retain and employ Consultant, pursuant to the terms
and conditions of the Agreement. Consultant accepts such appointment and agrees
to perform the services pursuant to the terms and conditions of the Agreement.
3. Term of Agreement
This Agreement shall have an initial term of one year (the "Initial
Term") commencing April 1, 1997 and shall not extend beyond the Initial Term
unless the parties enter into a separate and
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independent written agreement. This Agreement may be terminated by either party
upon sixty (60) days written notice to the other party. The parties agree not to
terminate this Agreement pursuant to this section unreasonably or in bad faith.
4. Duties of Consultant
A. Corporate Imaging Services. Client retains Consultant to assist
Client with Client's media and public relations management by providing the
services of consultants and other professionals, such services to include the
review of Client's present media and public relations management, and the
recommendation of means of Client's customer base and otherwise improving
Client's corporate image generally. Specifically, Consultant agrees to provide
the following services related to media and public relations:
i. acting as advisor to Client with respect to communications and
information distributions, such as interviews, press release,
shareholder reports, etc. as well as planning, designing, developing,
organizing, writing and distributing such communications and
information;
ii. receive, manage, and respond to all incoming telephone calls from
or pertaining to Client's shareholders and investors, and shareholder
and investor relations;
iii. assist with all shareholder meetings which are formally announced
and called to order, including the preparation of agendas, documents,
materials, and presentations to be presented at such meetings;
iv. assist in the planning, preparation and distribution, if
appropriate, if marketing materials, news releases, securities filings
and disclosures and related matters pertaining to media relations;
v. assist Client to make Client and Client's managements, products and
activities known to appropriate media and business publications,
analysts, advisors, and other members of the business community and
the public generally, and to seek out new business acquisitions, which
are consistent with Client's strategic growth plan;
vi. provide information pertaining to the trading of Client's common
stock, such as closing stock prices and trading volume.
The entirety of the services to be provided by Consultant pursuant to this
Subsection 4 A, shall hereinafter collectively be referred to as the "Corporate
Imaging Services".
B. Financial Consulting Services. Client also retains Consultant to assist
Client to improve Client's Capital structure by providing advice and
assistance to Client regarding Client's capital structure and possible
capital reorganization, such services also to include the introduction of
Client to appropriate sources of debt and/or equity capital.
The entirety of the services to be provided by Consultant pursuant to the
Subsection 4.B., shall hereinafter collectively be referred to as the
"Financial Consulting Services".
5. Duties of Client
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(a) On a regular and timely basis, Client shall provide Consultant and
Consultant's designees with all approved data and pertinent information
about Client and Client's management, products, and operations. Client
shall advise Consultant of any facts which would affect the accuracy of
any prior data or information provided Consultant or Consultant's
Professionals by Client.
(b) Client shall use its best efforts to promptly provide Consultant
and Consultant's Professionals with full and complete copies of all
federal and state securities filings and reports; complete copies of
all shareholder reports and communications whether or not prepared with
the assistance of Consultant or Consultant's Professional; all data and
information provided to any analysts, broker-dealers, market makers, or
other members of the financial community; and copies of all
product/service brochures, sales materials, etc.
6. Representation and Indemnification
(a) Client shall be deemed to make a continuing representation of the
accuracy of any and all material facts, information and data which
Client supplies to Consultant or Consultant's Professionals, and Client
acknowledges its awareness that Consultant and Consultant's
Professionals will rely on such continuing representation in
disseminating such information and otherwise performing its public
relations functions.
(b) Consultant, in the absence of written notice from Client, may rely
upon the continuing occurrence of material information and data
supplied by Client.
(c) Client hereby agrees to indemnify Consultant against, and to hold
Consultant harmless from any claims, demands, suits, loss, damages,
including legal fees and expenses arising from Consultant's reliance
upon the occurrence and continuing accuracy of such facts, material,
information and data, if and only if, the facts, materials, information
and data was provided to Consultant by Client.
7. Compensation
A. Corporate Imaging Services. For Corporate Imaging Services Rendered,
Client shall pay Consultant and/or Consultant's designee(s) in the form of
free trading common stock of Client (the "Common Stock") registered
pursuant to a Form S-8 registration statement or similar registration
statement, as follows:
i. Upon execution of this Agreement or not more than five (5)
calendar days from the Effective Date, Client shall convey or
cause to be conveyed to Consultant or Consultant's designee(s),
Twenty three thousand (23,000) shares of Client's free trading
common stock;
ii. Client shall convey or cause to be conveyed to Consultant or
Consultant's designee(s) monthly compensation comprised of Zero
(0) shares of Client's free trading common stock, such payments
to be made on or before the first (1st) calendar day of each,
month commencing August 1st, 1998.
The Common Stock to be issued to Consultant and/or Consultant's designee(s)
pursuant to this Subsection 7.A shall be duly issued, fully paid and
nonassessable upon its conveyance to Consultant and or Consultant's designee(s).
B. Financial Consulting Services. For Financial Consulting Services
rendered and for services provided by Consultant pertaining to the closing
of any transaction or agreement
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which provides capital to Client and which involves a third party
introduced to Client by Consultant, Client agrees to compensate Consultant
by paying Consultant or Consultant's designee(s) the equivalent of five
percent (5%) of the gross dollar amount of capital provided to Client or
Client's designee(s) pursuant to any transaction or agreement executed in
connection with an introduction to such third party.
All compensation owed to Consultant or Consultant's designee(s) pursuant to
this Subsection 7.B, shall be paid to Consultant or Consultant's Designee(s)
within three (3) business days of the earlier to occur of either (i) the release
of any such proceeds or capital from escrow, or (ii) the receipt of any such
proceeds or capital by Client or Client's designee(s).
If Client should request Consultant to perform other services not
included in the Services listed in Section 4 herein, Client shall compensate
Consultant or Consultant's designee(s) as may be agreed to by the parties in
connection with those specific services.
8. Best Efforts Basis
The parties agree that they individually and separately shall at all
times faithfully and to the best of their experience, ability, and talents,
perform all the duties that may be required of and from each other pursuant to
the terms of this Agreement. Consultant does not guarantee or warrant that its
efforts shall have any impact on Client's business or that any subsequent
financial improvement shall result from Consultant's efforts. Client understands
and acknowledges that the success or failure of consultant's efforts may be
predicted on Client's assets and operating results as well as Client's ability
to attract capital through the public securities markets.
9. Client's Right to Approve Consultant's Actions
Client expressly retains the right to approve, in its sole discretion,
the public relations and advisory services provided by Consultant that involves
Client, including without limitation, all press releases and marketing
materials. Consultant and Client mutually agree that Consultant is not
authorized to enter into agreements on behalf of Client. Client agrees not to
withhold its approval pursuant to this section unreasonably.
10. Costs and Expenses
Consultant shall be responsible for paying all daily and ordinary
expenses incurred during and in relation to Consultant's performance under this
Agreement including, but not limited to, ordinary phone, fax, delivery, and
copying expenses. Client agrees to pay for all extraordinary expenses, if any,
incurred by Consultant in relation to Consultant in relation to Consultant's
performance under this Agreement, including without limitation, long distance
travel expenses for any trips exceeding (50) miles taken on behalf of costs and
expenditures prior to incurring them. Client will be responsible to pay for;
news releases sent by a wire service, and up tp $1000 to produce a Due Diligence
package.
11. Consultant is Not an Agent
Consultant obligations under this Agreement consist solely of the
Consulting Services described herein. In no event shall Consultant be considered
to act as the agent of Client or otherwise represent or bind Client. For the
purposes of This Agreement, Consultant is n independent contractor. All final
decisions with respect to acts of Client or its affiliates, whether or not made
pursuant to or in reliance on information or advice furnished by Consultant
hereunder, shall be those
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of Client or such affiliated and Consultant shall under no circumstances be
liable for any expense incurred or loss suffered by Client as a consequence of
such action or decisions.
12. Non-Exclusive Services
Client acknowledges that Consultant is currently providing services of
the same or similar nature to other parties and Client agrees that Consultant is
not prevented or barred from rendering services of the same nature or a similar
nature to any other individual or entity. Consultant understands and agrees that
Client shall not be prevented or barred from retaining other persons or entities
to provide services of the same or similar nature as those provided by
Consultant. Consultant shall advise Client of Consultant's position with respect
to any activity, employment, business arrangement or potential conflict of
interest which may be relevant to this Agreement.
13. Non-Circumvention of Consultant
Client agrees, represents, and warrants hereby that it will not
circumvent Consultant with respect to any prospective lender or investors
introduced by Consultant to Client nor with respect to any transaction, merger,
acquisition, or other business opportunity proposed by, assisted with or
otherwise promoted by Consultant for the benefit of Client pursuant to the terms
of this Agreement. Client also agrees not to sell any stock on the open market
without first consulting with Consultant for the purpose of, without limitation,
possibly coordinating efforts to minimize any adverse effects of such sale upon
the market price of Client's stock.
14. Miscellaneous
A. Authority. The execution and performance of this Agreement has been duly
authorized by all requisite corporate action. This Agreement is a valid and
binding obligation hereto.
B. Amendment. This Agreement may be amended or modified at any time and in
any manner only by an instrument in writing executed by the parties hereto.
C. Waiver. All the rights and remedies of either party under this Agreement
are cumulative and not exclusive of any other rights and remedies provided
by law. No delay or failure on the part of either party in the exercise of
any right or remedy arising from a breach of this Agreement shall operate
as a waiver of any subsequent right or remedy arising from a subsequent
breach of this Agreement. The consent of any party, where required
hereunder, to any act or occurrence shall not be deemed to be a consent to
any other act or occurrence.
D. Assignment. Neither this Agreement nor any right created by it shall be
assignable by either party without the prior written consent of the other.
Nothing in this Agreement, expressed or implied, is intended to confer upon
any person, other than the parties and their successors, any rights or
remedies under this Agreement.
E. Notices. Any notice or other communication required or permitted by this
Agreement must be in writing and shall be deemed to be properly given when
delivered in person to an officer of the other party, when deposited in the
mails for transmittal by certified or registered mail, postage prepaid,
when deposited with a courier such as Federal Express or the like, or when
sent by facsimile transmission with a confirming copy by first class mail,
provided that such communication is addressed:
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In the case of Consultant to: Corporate Imaging
Attn: Neil Rand, President
11024 North 28th Street, Suite 200
Phoenix, AZ 85029
Telephone: (602) 504-9230
Facsimile: (602) 504-9252
In the case of Client to: Mariculture Systems, Inc.
Attn: Bob Work
7221 196th St. S.W. Suite D2
Lynwood, Washington
Telephone: (602) 216-9600
Facsimile: (602) 216-9611
or to such other person or address designated by the parties hereto to
receive notice. Any such notice shall be deemed received the earlier of
actual receipt or five (5) business days following deposit of the same.
F. Headings & Captions. The headings and paragraphs are included solely for
convenience. If a conflict exists between any heading and the text shall
control.
G. Entire Agreement. The instrument and the exhibits hereto contain the
entire Agreement between the parties with respect to the transaction
contemplated by the Agreement and no other prior written or oral statement
or agreement shall be recognized or enforced. This agreement may be
executed in any number of counterparts but the aggregate of the
counterparts together constitute only one and the same instrument.
H. Effect of Partial Invalidity. In the event that any one or more of the
provisions contained herein in this Agreement shall for any reason to be
held to be invalid, illegal, or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other
provisions of this Agreement, but this Agreement shall be constructed as if
it never contained any such invalid, illegal or unenforceable provisions.
I. Controlling Law. The validity, interpretation, and performance of this
Agreement shall be controlled by and construed under the laws of the State
of Arizona. Any legal action brought hereunder shall be properly commenced
and venue shall lie only in a state or federal court of competent
jurisdiction located in Maricopa County, Arizona
J. Attorney's Fees. If any action at law or in equity, including an action
for declaratory relief, is brought to enforce or interpret the provisions
of this Agreement, the prevailing party shall be entitled to recover actual
attorneys fees from the other party. The attorneys fees may be ordered by
the court in the trial of any action described in this paragraph or may be
enforced in a separate action brought for determinating attorney's fees.
K. Time is of the Essence. Time is of the essence of this Agreement and of
each and every provision hereof.
L. Mutual Cooperation. The parties hereto shall cooperate with each other
to achieve the purpose of this Agreement, and shall execute such other and
further documents and take such other and further actions as may be
necessary or convenient to effect the transactions described herein.
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M. Further Actions. At any time, and from time to time, each party hereto
agrees to take actions and to execute and deliver documents, at its own
expense, as may be reasonably necessary to effectuate the purposes of this
Agreement.
N. Indemnification. Client and Consultant agree to indemnify, defend and
hold each other harmless from and against all demands, claims, actions,
losses, damages, liabilities, costs, and expenses, including without
limitation, interest, penalties and attorneys fees and expenses asserted
against or imposed or incurred by either party by reason of or resulting
from a breach of any representation, warranty, covenant condition or
agreement of the other party to this Agreement.
O. Facsimile Counterparts. If a party signs this Agreement and transmits an
electronic facsimile of the signature page to the other party, the party
who receives the transmission may rely upon the electronic facsimile as a
signed original of this Agreement.
P. Confidentiality. Client and Consultant agree that all non-public
information furnished and to be furnished pursuant to this Agreement shall
be held in strict confidence and shall not, without the prior written
consent of the respective party, be disclosed in any manner whatsoever, in
whole or in part, and shall not be used by the other party for any purpose
other than fulfilling the terms of this Agreement detailed herein. The term
"information" shall include, but is not limited to, all documents,
contracts, memoranda, customer names and lists, analyses, compilations,
data studies, financial data and other materials and information exchanged
hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date(s) written below.
[Consultant]
CORPORATE IMAGING
By: /s/ Neil Rand Date:
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Neil Rand
Title: President
[Client]
Mariculture Systems, Inc., a (Washington) Corporation
By: /s/ Bob Work Date: March 11, 1997
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Name: Bob Work
Title: President
