Attached files
| file | filename |
|---|---|
| 10-Q - INKN FORM 10-Q (3-31-10) - Shrink Nanotechnologies, Inc. | inknform10q033110.htm |
| EX-32.1 - EXHIBIT 32.1 - Shrink Nanotechnologies, Inc. | ex321.htm |
| EX-31.1 - EXHIBIT 31.1 - Shrink Nanotechnologies, Inc. | ex311.htm |
| EX-10.13 - EXHIBIT 10.13 - Shrink Nanotechnologies, Inc. | ex1013.htm |
| EX-10.16 - EXHIBIT 10.16 - Shrink Nanotechnologies, Inc. | ex1016.htm |
| EX-10.12 - EXHIBIT 10.12 - Shrink Nanotechnologies, Inc. | ex1012.htm |
| EX-10.14 - EXHIBIT 10.14 - Shrink Nanotechnologies, Inc. | ex1014.htm |
CONSULTING
AGREEMENT
This Consulting Agreement (the “Agreement”)
is made as of this 1ST day
of March 2010, between Shrink Nanotechnologies, Inc., a Delaware corporation
(the "Company"),
and Andrew Boll (the "Consultant")
and shall be effective upon execution by the Company and the Consultant (the
"Effective
Date"). The Company and the Consultant are collectively
referred to herein as the “Parties.”
1. Services. The
Consultant will provided accounting professional services to include (i)
compilation of records, books and documents from the Company and its advisors
and preparation of financial statements on an annual and quarterly basis, and,
if and as necessary in the event of acquisitions, for any stub periods, private
offerings or other offerings (ii) preparation of financial statements and
reconciliation of the same to GAAP, (iii) liaising with the Company’s
independent PCAOB auditors or other accountants SEC counsel, or tax advisors
hired by the Company from time to time with respect to such financial statements
and finalization and filing of the same as necessary or requested by the Company
from time to time (“Services”). Consultant
will provide consulting services, which shall amount to not less than five days
per month, as reasonably requested by the Company and as the Consultant’s
schedule permits. Consultation may be sought by the
Company over the telephone, in person, at the Company's offices or another
reasonable location or through written correspondence. Additionally,
Consultant may be requested to attend, to the extent Consultant’s schedule
permits, one or more in person meetings with other members of the Board or
committees or advisory committees of the Board.
2. Term and
Termination. The term of this Agreement will begin on the
Effective Date of this Agreement and will end on the first year anniversary
(based on a 360 day year containing four (4) ninety (90) day quarterly periods)
of this Agreement or upon earlier termination as provided below (the "Term"); provided, however, that the
Term may be renewed, by mutual consent of the Parties, for successive one-year
periods and, at the time of such renewal, additional shares shal vest in
accordance with Section 3 below. This Agreement may be terminated at
any time upon sixty (60) days written notice by either party, provided, that
only any shares issued under Section 3 that have fully vested as of such date
shall be released and any unvested shares shall be automatically returned for
cancellation. The Consultant agrees, following the termination of
this Agreement or upon earlier request by the Company, to promptly return all
financial information, due diligence, materials, agreements or agreement drafts,
drawings, tracings, and all visual or written materials in the Consultant’s
possession that were made available by the Company or its affiliates in
conjunction with the Consultant’s consulting services under this Agreement, or
generated by the Consultant in the performance of consulting services under this
Agreement.
3. Compensation. Consultant
shall receive stock based compensation upon entering into this Agreement and of
120,000 shares to vest as follows:
No.
Shares Vesting / Lock Up Release
Date
25,000
Shares Immediately
25,000
Shares March
1, 2011
25,000
Shares March
1, 2012
45,000
Shares March
1, 2013
All shares (the “Shares”)
shall be appropriately issued in the name of “Andrew Boll”, and fully issued as
of the date hereof, and shall have become earned and released from lockup as of
such vesting dates (each, a “Vesting Date”).
All shares are restricted and may only
be issued in accordance with an exemption from registration under the Securities
Act of 1933, as amended (the “Securities
Act”). The Shares are being acquired on an as is basis from
the Company. The Company has made no, and currently makes no warranty
or representation whatsoever as to the present or future value or liquidity
levels of the Shares. The parties acknowledge and agree that any
presumed value provided on a 1099 or in similar tax documents or any dollar
amount valuation of the Company or the Shares as indicated on the Company’s past
or future SEC reports or financial statements, are not necessarily indicative of
the present or future actual value of the Shares.
3.2.1 Consultant
understands that any restricted shares, and any securities issued in respect
thereof, shall bear the following legend:
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A
VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. THESE
SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY APPLICABLE
STATE SECURITIES LAWS OR AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE.
IN
ADDITION, THE SHARES REPRESENTED BY THIS CERTIFICATE ARE RESTRICTED AND MAY NOT
BE SOLD, TRANSFERRED PLEDGED OR HYPOTHECATED AND MAY ONLY BE RELEASED IN
ACCORDANCE WITH THE TERMS OF A CONSULTING AGREEMENT WITH THE HOLDER DATED AS OF
MARCH 1, 2010. IN THE EVENT AND TO THE EXTENT THAT SUCH SHARES ARE
NOT RELEASED AS OF THE VESTING DATES SET FORTH IN SUCH AGREEMENT, SUCH UNVESTED
SHARES SHALL AUTOMATICALLY BE RETURNED FOR CANCELLATION TO THE
COMPANY.”
In
addition, if separated out into separate stock certificates, each respective
certificate shall carry substantially the following legend:
“SPECIFICALLY,
__________ SHARES REPRESENTED BY THIS CERTIFICATE VEST ONLY IF THE CONSULTING
AGREEMENT IS IN EFFECT AND RENEWED AS OF MARCH 1, 20__; AND, IF NOT VESTED BY
SUCH DATE, SHALL BE DEEMED NULL, VOID AND CANCELLED AND RETURNED TO THE
CORPORATION FOR CANCELLATION”
3.3 Additional Success
Fees. The Consultant shall not receive any form of success or
finance success based compensation and, shall not take any actions or act in any
manner requiring FINRA registration.
3.4 Acknowledgement of Risks
Relating to Shares. Consultant understands and acknowledges
that the shares being received are illiquid and do not vest for a period of time
and certain shares are further subject to forfeiture if this Agreement is
terminated prior to the end of any Term. In addition, the securities
of the Company are generally illiquid and subject a high degree of
risk. Consultant represents that it has the knowledge and experience
to assess the nature of a risk relating to such shares. Consultant
understands therefore, that it is possible that he will not be able to monetize
the value of the shares. Additionally, and without limitation,
Consultant acknowledges that:
3.4.1 the
Shares are “restricted securities” (as such term is defined in Rule 144
promulgated under the Act (“Rule 144”),
and that the Shares may include a restrictive legend, and, that the Shares may
not be able to be sold unless registered with the United States Securities and
Exchange Commission and qualified by appropriate state securities regulators, or
unless the Consultant complies with an exemption from such registration and
qualification (including, without limitation, compliance with
Rule 144);
3.4.2 Consultant
has adequate means of providing for current needs and contingencies, has no need
for liquidity in the investment, and is able to bear the economic risk of an
investment in the Shares offered by the Seller of the size contemplated. The
Consultant represents that he/she has read and reviewed all public filings made
available by each Issuer, with the United States Securities Commission’s EDGAR
filing service (www.sec.gov) and understands that each Issuer maintains
questionable financial stability. The Consultant represents that
he/she is able to bear the economic risk of the investment and at the present
time could afford a complete loss of such investment;
3.4.3 the
Consultant is an “Accredited Investor” as defined in Regulation D of the
Securities Act or the Consultant, and, directly or indirectly, has sufficient
knowledge and experience in financial and business matters that the Consultant
is capable of evaluating the merits and risks of an investment in the Shares
offered by the Seller and of making an informed investment decision with respect
thereto and has the capacity to protect the Consultant’s own interests in
connection with the Consultant’s proposed investment in the Shares. Consultant
is not acquiring the shares as part of a public solicitation or offering and is
not acquiring said shares with intent to distribute the same;
3.4.4 The
Consultant is acquiring the Shares solely for the Consultant’s own account as
principal, for investment purposes only and not with a view to the resale or
distribution thereof, in whole or in part, and no other person or entity has a
direct or indirect beneficial interest in such Shares other than the Consultant
and its principals.
3.4.5 The
Consultant will not sell or otherwise transfer the Shares without registration
under the Act or an exemption therefrom and fully understands and agrees that
the Purchaser must bear the economic risk of their purchase for an indefinite
period of time because, among other reasons, the Shares have not been registered
under the Securities Act or under the securities laws of any state and,
therefore, cannot be resold, pledged, assigned or otherwise disposed of unless
they are subsequently registered under the Securities Act and under the
applicable securities laws of such states or unless an exemption from such
registration is available.
4. Certain Other
Contracts. Company is aware that Consultant is involved in
several professional engagements with various commercial
entities. The Consultant will not disclose to the Company any
information that the Consultant is obligated to keep secret pursuant to an
existing confidentiality agreement with a third party, and nothing in this
Agreement will impose any obligation on the Consultant to the
contrary. The consulting work performed hereunder will not be
conducted on time that is required to be devoted to any other third party. The
Consultant shall not use the funding, resources and facilities of the any other
third party to perform consulting work hereunder and shall not perform the
consulting work hereunder in any manner that would give any third party rights
to the product of such work. The Consultant has disclosed and, during
the Term, will disclose to the President of the Company any conflicts between
this Agreement and any other relevant agreements binding the
Consultant.
5. Direction of Projects and
Inventions to the Company. Subject to the Consultant's obligations under
any confidentiality or other written obligations to third parties, during the
Term of this Agreement, the Consultant will use his best efforts to disclose to
the President of the Company or the Board or other officers appointed by the
Board for such purpose, on a confidential basis, technology and product
opportunities which come to the attention of the Consultant in the Field of
Interest, and any invention, improvement, discovery, process, formula or method
or other intellectual property relating to or useful in, the Field of Interest
(collectively "New
Discoveries"), whether or not patentable or copyrightable, and whether or
not discovered or developed by Consultant.
6. Inventions Discovered by the
Consultant While Performing Services Hereunder. The Consultant will
promptly and fully disclose to the President of the Company any invention,
improvement, discovery, process, formula, technique, method, trade secret, or
other intellectual property, whether or not patentable, whether or not
copyrightable (collectively, "Invention")
made, conceived, developed, or first reduced to practice by the Consultant,
either alone or jointly with others, while performing services hereunder,
whether for the Company or any subsidiary or affiliate of the Company. The
Consultant hereby assigns to the Company all of his right, title and interest in
and to any such Inventions. The Consultant will execute any documents necessary
to perfect the assignment of such Inventions to the Company and to enable the
Company to apply for, obtain, and enforce patents or copyrights in any and all
countries on such Inventions. The Consultant hereby irrevocably designates the
Secretary of the Company as his agent and attorney-in-fact to execute and file
any such document and to do all lawful acts necessary to apply for and obtain
patents and copyrights, and to enforce the Company's or any subsidiary’s or
affiliates’ rights under this paragraph. This Section 6 will survive the
termination of this Agreement.
7. Confidentiality.
7.1 The
Consultant acknowledges that, during the course of performing his services
hereunder, the Company (which, for purposes of this Section 7 shall be deemed to
be defined as the Company and any subsidiary of the Company) will be disclosing
information to the Consultant, and the Consultant will be developing information
related to the Field of Interest, Inventions, projects, products, potential
customers, personnel, business plans, and finances, as well as other
commercially valuable information (collectively "Confidential
Information"). The Consultant acknowledges that the Company's business is
extremely competitive; dependent in part upon the maintenance of secrecy, and
that any disclosure of the Confidential Information would result in serious harm
to the Company. The Consultant agrees that the Confidential
Information will be used by the Consultant only in connection with consulting
activities hereunder, and will not be used in any way that is detrimental to the
Company. The Consultant agrees not to disclose, directly or
indirectly, the Confidential Information to any third person or entity, other
than representatives or agents of the Company. The Consultant will
treat all such information as confidential and proprietary property of the
Company. The term "Confidential
Information" does not include information that (i) is or becomes
generally available to the public other than by disclosure in violation of this
Agreement, (ii) was within the relevant party's possession prior to being
furnished to such party, (iii) becomes available to the relevant party on a
non-confidential basis, or (iv) was independently developed by the relevant
party without reference to the information provided by the
Company. The Consultant may disclose any Confidential Information
that is required to be disclosed by law, government regulation or court order.
If disclosure is required, the Consultant will give the Company advance notice
so that the Company may seek a protective order or take other action reasonable
in light of the circumstances. Upon termination of this Agreement,
the Consultant will promptly return to the Company all materials containing
Confidential Information as well as data, records, reports and other property,
furnished by the Company to the Consultant or produced by the Consultant in
connection with services rendered hereunder, together with all copies of any of
the foregoing. Notwithstanding such return, the Consultant shall continue to be
bound by the terms of the confidentiality provisions contained in this Section 7
after the termination of this Agreement.
7.2 If
the Consultant has a conflict of interest, or potential conflict of interest,
with respect to any matter, he shall excuse himself from the discussion of such
matter and at the time of the execution of this Agreement, Consultant shall
disclose and describe all potential conflicts of interest that may arise from
the execution of this Agreement with respect to prior engagements Consultant is
a party to.
8. Acknowledgments and
Assent. The Parties acknowledge that they have been given at least
seven (7) days to consider this Agreement and that they were advised to consult
with an independent attorney prior to signing this Agreement and that they have
in fact consulted with counsel of their own choosing prior to executing this
Agreement. The Parties may revoke this Agreement for a period of three (3)
calendar days after signing this Agreement, and the Agreement shall not be
effective or enforceable until the expiration of this three (3) day revocation
period. The Parties agree that they have read this Agreement and
understand the content herein, and freely and voluntarily assent to all of the
terms herein.
9. Use of Name. It is
understood that the name of the Consultant will appear in disclosure documents
required by securities laws, and in other regulatory, administrative filings and
public relations materials in the ordinary course of the Company's business. The
above-described uses will be deemed to be acceptable uses.
10. No Conflict: Valid and
Binding. The Consultant represents that neither the execution of this
Agreement nor the performance of the Consultant's obligations under this
Agreement will result in a violation or breach of any other agreement by which
the Consultant is bound. The Company represents that this Agreement has been
duly authorized and executed and is a valid and legally binding obligation of
the Company, subject to no conflicting agreements.
11. Notices. Any notice
provided under this Agreement shall be in writing and shall be deemed to have
been effectively given (i) upon receipt when delivered personally, (ii) one day
after sending when sent by private express mail service (such as Federal
Express), or (iii) 5 days after sending when sent by regular mail to the
following address:
|
In the case of the Company:
|
In the case of the
Consultant:
|
|
Shrink
Nanotechnologies, Inc.
|
Attention:
Andrew Boll
|
|
2038
Corte del Nogal, Suite 110
|
____________________
|
|
Carlsbad,
California 92011
|
_____,
California ______
|
or to
other such address as may have been designated by the Company or the Consultant
by notice to the other given as provided herein.
12. Independent Contractor:
Withholding. The Consultant will at all time be an independent
contractor, and as such will not have authority to bind the
Company. The Parties acknowledge that this Agreement is not a
contract within the meaning of Section 2750 of the California Labor Code, and
the Consultant is not an employee of the Company for any purpose under the
California Labor Code. Consultant will not act as an agent nor shall
he be deemed to be an employee of the Company for the purposes of any employee
benefit program, unemployment benefits, or otherwise. The Consultant recognizes
that no amount will be withheld from his compensation for payment of any
federal, state, or local taxes and that the Consultant has sole responsibility
to pay such taxes, if any, and file such returns as shall be required by
applicable laws and regulations. Consultant shall not enter into any agreements
or incur any obligations on behalf of the Company.
13. Assignment. Due to
the personal nature of the services to be rendered by the Consultant, the
Consultant may not assign this Agreement. The Company may assign all rights and
liabilities under this Agreement to a subsidiary or an affiliate or to a
successor to all or a substantial part of its business and assets without the
consent of the Consultant. Subject to the foregoing, this Agreement will inure
to the benefit of and be binding upon each of the heirs, assigns and successors
of the respective parties.
14. Severability. If any
provision of this Agreement shall be declared invalid, illegal or unenforceable,
such provision shall be severed and the remaining provisions shall continue in
full force and effect.
15. [Omitted.]
16. Remedies. The
Consultant acknowledges that the Company would have no adequate remedy at law to
enforce Sections 3, 4, 5, 6, and 7, hereof. In the event of a
violation by the Consultant of such Sections, the Company shall have the right
to obtain injunctive or other similar relief, as well as any other relevant
damages, without the requirement of posting bond or other similar
measures. In the event any dispute is asserted by the Company as to
the Services, the Company may issue a stop order with the Company’s stock
transfer agent, for all or a portion of the shares issued without the
requirement that a bond be posted therefore. In such connection,
Consultant waives any obligation of Company to post a bond as to such stop order
and, will not contest any efforts or application of the Company to take such
action without the requirement of posing a bond. Notwithstanding the
foregoing, in the event Consultant does not provide the Services and related
report at the times contemplated hereby, then the Company shall be entitled to
terminate this Agreement and seek damages not to exceed return of the shares,
or, if transferred, the value thereof. (i.e. liquidated damages shall
be limited to return of the shares or, the value thereof based on current market
prices).
17. Governing Law; Entire
Agreement; Amendment. This Agreement shall be governed by the laws of the
State of California applicable to agreements made and to be performed within
such State, represents the entire understanding of the parties, supersedes all
prior agreements between the parties (other than the previously existing
confidentiality agreement executed by Mr. Port, individually which shall also
remain in effect), and may only be amended in writing.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
Shrink
Nanotechnologies,
Inc. Consultant
____________________________ _____________________________
By: Mark
L.
Baum
By: Andrew Boll
Its:
CEO
an individual