EX-10.1
CONSULTING AGREEMENT - DEFINED HOLDING CORPORATION
Consulting Services Agreement
This Consulting Agreement ["the Agreement"] entered into on the date herein
below set forth adjacent to the signatures of the parties executing the same
between Defined Holding Corporation as agent for Public Securities Service,
Inc., ["PSS"] a California corporation, at 9530 E. Imperial Highway, Suite K,
Downey, CA 90242-3041, and Freedom Surf, Inc., PO Box 231, Huntington Beach, CA
92648 [hereinafter referred to as "Client"].
Whereas Client requires the services of PSS to facilitate the public trading of
its stock; and
Whereas PSS is in the business of facilitating the drafting and filing of
documents for the Securities & Exchange Commission and other regulatory agencies
and stock exchanges through its retained professionals; and
Whereas PSS has the ability to provide market maker services for Client after
approval for trading of securities;
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Responsibilities and Warranties of PSS: PSS hereby agrees to perform
consulting and advisory services for the Client in conjunction with the
development of a full blue sky securities registration package for the sale, to
the public, of the securities of Client and other similar matters upon the fully
negotiated terms and conditions set forth herein and will provide the following
services:
A. Form 10-SB Development: To retain securities counsel for Client to
prepare for filing all the required documents with regards to the full
registration under Section 12(b) or 12(g) of the Securities Exchange Act of
1934, as amended ["the Exchange Act"] with the Securities & Exchange Commission
["SEC"] for Client included but not limited to the following:
(1) Form 10-SB, Form 10QSB and Form 10-KSB for the first year following the
filing of the Form 10-SB;
(2) Form 211 to initiate or resume OTC Bulletin Board service; (3) A Small Cap
application to NASDAQ Stock Market, when appropriate and if the
Client is a going concern and not a developmental stage company; (4) (4)
All additional Regulatory Filings; and (5) Any comment letters to be answered on
Client's behalf.
B. NASD and SEC Comment Letter Support: The preparation of an
application to the National Association of Securities Dealers [NASD] and
assistance for Client in responding to any and all comment letters from the SEC
and/or NASD incident to the filing of the Client's Form 10-SB as outlined above.
C. Audit Services: To obtain for Client an independent Certified Public
Accountant [CPA] to prepare (1) the required audited financial statement (unless
additional audits are required for the Form 10-SB.
2. Client's Responsibilities & Warranties: Client agrees to provide to PSS all
information necessary together with any documents which may be requested by PSS
or such professionals as PSS may retain in connection with this Agreement to
facilitate the work which PSS has agreed to perform under the terms hereof.
Client shall be solely responsible for the accuracy of the information and
representations made in any document prepared by PSS and/or its retained
professionals.
3. Consideration: Client shall pay to Defined Holding Corporation as Agent for
PSS for the services a consulting fee of 100,000 shares of common stock of
Client. Such shares shall be subject to registration by Client on Form S-8
within 7 days of the completion of PSS's initial work and PSS shall complete the
S-8 Registration Statement at its sole expense.
Additionally, Client shall pay directly to the retained professionals the
following fees:
(1) To Neil Liebman, Esq. for
consulting services in connection with the drafting and filing of the Form
10SB for client and for legal opinions in connection therewith, 10,000
shares of common stock of Client;
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(2) To John Cruickshank for consulting services in connection with the drafting
and filing of the Form 10SB, the Form 211 and for additional consulting
services set forth herein, 100,000 shares;
(3) To Jonathan Barsades, Esq. for
consulting services in connection with the drafting and filing of the Form
10SB for client and for legal opinions in connection therewith, 10,000
shares of common stock of Client.
4. Costs: In addition to the compensation set forth in Paragraph 3 above, Client
shall pay directly any filing fees required to be submitted with any
registration, filing, membership application, self-regulatory agency fees,
bonding, fingerprinting or testing expenses, all of which must be paid directly
by Client when requested by PSS.
Client must issue checks in full payment of any such fees, payable to the
appropriate payee in the appropriate amount and return the checks to PSS
together with all properly executed documents.
5. TIMELY REVIEW BY CLIENT: BE WARNED THAT SOME AGENCIES DO NOT ACCEPT DOCUMENTS
WHICH HAVE BEEN NOTARIZED MORE THAN 30 DAYS PRIOR TO THEIR SUBMISSION. ANY
DOCUMENT THAT REQUIRES REVISION DUE TO THE CLIENT'S FAILURE TO RETURN THEM DULY
EXECUTED AND WITH PAYMENT AS REQUIRED WITHIN THE TIME FRAME SET FORTH ABOVE, MAY
FIND THAT THE DOCUMENTS MUST BE REVISED AND REEXECUTED.
6. Circumstances incident to filing of documents: PSS does not accept
responsibility for any occurrence resulting from Federal and/or State processing
backlogs, agency computer breakdowns or other circumstances which may cause a
delay in the processing of documents with any such agency. PSS agrees to use its
best efforts to secure registration for Client but cannot guarantee that any
registration will be granted.
7. Indemnification: In the event litigation is instituted against Client naming
PSS as a co-defendant for any reason, Client hereby agrees to indemnify and hold
harmless PSS, its partners, employees, agents, representatives, retained
professionals, their assigns and controlling persons from any loss, claim,
damages, liabilities, costs and expense in any suit, proceeding and/or claim
arising from the cost of investigating, preparing and defending the submissions
made by PSS based upon information which was obtained from Client and submitted
on forms prepared by PSS and/or its retained professionals. This said Paragraph
7 shall survive the expiration or termination of this Agreement.
8. Independent Contractor Status: Client acknowledges that PSS shall perform its
services under the provisions of this Agreement as an Independent Contractor and
not as an employee or an affiliate of Client.
9. Amendment and Modification: Subject to applicable law, this Agreement may be
amended, modified or supplemented only by a written agreement signed by both
parties. No oral modifications to this Agreement may be made.
10. Entire Agreement: This Agreement contains the entire agreement between the
parties hereto and supersedes any prior understanding, written or oral,
respecting the subject matter hereof. The failure of PSS to insist upon strict
performance of any term of this Agreement shall not be construed by Client as a
waiver at any time of the rights, remedies or indemnification, all of which
shall remain in full force and effect from the time of the execution hereof.
11. Binding Effect: This Agreement shall be binding upon the heirs, executors,
administrators, assigns of the parties hereto and Client shall not assign its
rights hereunder or delegate its duties under any of the terms hereof without
the prior written consent of PSS, which consent will not be unreasonably
withheld.
12. Attorney's Fees and Costs: In the event an arbitration, mediation, suit or
action is brought by any party under this Agreement to enforce any of its terms,
or in any appeal therefrom, it is agreed that the prevailing party shall be
entitled to receive its reasonable attorney's fees and costs in connection
therewith.
13. Severability: If any provision of this Agreement is held to be illegal,
invalid or unenforceable under present or future law during the term hereof,
such provision shall be fully severable and this Agreement shall be construed
and enforced as if such illegal, invalid or unenforceable provision never
comprised a part hereof and the remaining provisions shall remain in full force
and effect and shall not be affected by the illegal, invalid or unenforceable
provisions or by its severance here from. Furthermore, in lieu of such illegal,
invalid or unenforceable provision, there shall be added automatically as part
of this Agreement, a provision as similar in nature in its terms to such
illegal, invalid or unenforceable provision as may be legal, valid and
enforceable.
14. Governing Law: This Agreement shall be governed by the Laws of the State of
California and the venue for the resolution of any dispute arising hereunder
shall be in Los Angeles County, California, Southeast Judicial District in
Norwalk, California.
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15. Independent Advise of Counsel: Client acknowledges and agrees that it has
received the independent advise of counsel prior to executing this Agreement and
that counsel has explained to Client the terms of this Agreement and their legal
ramifications. Client further understands and agrees that PSS does not render
legal advise or offer legal assistance. All requests for legal advise by Client
will be referred to legal counsel for a proper legal opinion. Accordingly, no
statements or representations by PSS, partners, employees, agents,
representatives, retained professionals, their assigns and controlling persons,
should be construed to be legal advise and PSS advises Client to always consult
with its own attorneys regarding the legalities of all investment offerings,
registrations and filings.
IN WITNESS HEREOF, the parties above have caused this Agreement to be duly
executed at Downey, California on the day and year set forth below.
PUBLIC SECURITIES SERVICES, INC.
By: /s/ John W. Cruickshank Date: 11/30/99
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John W. Cruickshank
CLIENT:
Name: FREEDOM SURF, INC.
By: /s/ Raece Richardson Date: 11/30/99
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Officer: Chief Executive Officer
Name: Raece Richardson
PSS Initial Client Initial
PSS Initial Client Initial
