Exhibit 10.5
INDEPENDENT CONSULTING
AGREEMENT
This Independent Consulting Agreement
(“Agreement”), effective as of August 14, 2006
(“Effective Date”) is entered into by and between
DATAJUNGLE SOFTWARE INC., a Nevada corporation (herein
referred to as the “Company”) and THE DEL MAR
CONSULTING GROUP, INC. , a California corporation (herein
referred to as the “Consultant”).
RECITALS
WHEREAS , the Company is a publicly-held corporation with its
common stock traded on the OTC Bulletin Board; and
WHEREAS , Company desires to engage the services of
Consultant to represent the Company in investor communications and
public relations with existing shareholders, brokers, dealers and
other investment professionals as to the Company's current and
proposed activities, and to consult with management concerning such
Company activities;
NOW THEREFORE , in consideration of the promises and the mutual
covenants and agreements hereinafter set forth, the parties hereto
covenant and agree as follows:
1.
Term of Consultancy
. Company hereby agrees to retain
the Consultant to act in a consulting capacity to the Company, and
the Consultant hereby agrees to provide services to the Company
commencing immediately and ending on July 31, 2007 unless otherwise
mutually agreed to by the parties.
2.
Duties of Consultant
. The Consultant agrees that it
will generally provide the following specified consulting services
through its officers and employees during the term of this
Agreement:
(a) Consult with and assist the Company
in developing and implementing appropriate plans and means 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, including, but not limited to, retail brokers,
buy side and sell side institutional managers, portfolio managers,
analysts, and financial public relations professionals;
(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 consult and assist the Company in communicating
appropriate information regarding such plans, strategy and
personnel to the financial community;
(d) Assist and consult with the Company
with respect to its (i) relations with stockholders, (ii) relations
with brokers, dealers, analysts and other investment professionals,
and (iii) financial public relations generally;
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(e) Perform the functions generally
assigned to stockholder relations and public relations departments
in major corporations, including responding to telephone and
written inquiries (which may be referred to the Consultant by the
Company); preparing press releases for the Company with the
Company's involvement and approval of press releases, reports and
other communications with or to shareholders, the investment
community and the general public; consulting with respect to the
timing, form, distribution and other matters related to such
releases, reports and communications; and, at the Company’s
request and subject to the Company’s securing its own rights
to the use of its names, marks, and logos, 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 and with the Company's direction
and written approval, disseminate information regarding the Company
to shareholders, brokers, dealers, other investment community
professionals and the general investing public;
(g) Upon and with the Company's
direction, conduct meetings, in person or by telephone, with
brokers, dealers, analysts and other investment professionals to
communicate with them regarding the Company's plans, goals and
activities, and assist the Company in preparing for press
conferences and other forums involving the media, 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 public relations implications thereof;
and
(i) Otherwise perform as the Company's
consultant for public relations and relations with financial
professionals.
3.
Allocation of Time and
Energies . The
Consultant hereby promises to perform and discharge faithfully the
responsibilities which may be assigned to the Consultant from time
to time by the officers and duly authorized representatives of the
Company in connection with the conduct of its financial and public
relations and communications activities, so long as such activities
are in compliance with applicable securities laws and regulations.
Consultant and staff shall diligently and thoroughly provide the
consulting services required hereunder. Although no specific
hours-per-day requirement will be required, Consultant and the
Company agree that Consultant will perform the duties set forth
herein above in a diligent and professional manner. The parties
acknowledge and agree that a disproportionately large amount of the
effort to be expended and the costs to be incurred by the
Consultant and the benefits to be received by the Company are
expected to occur within or shortly after the first two months of
the effectiveness of this Agreement. It is explicitly understood
that neither the price of the Company’s common stock nor the
trading volume of the Company’s common stock hereunder
measure Consultant’s performance of its duties. It is
also understood that the Company is entering into this Agreement
with Consultant, a corporation and not any individual member or
employee thereof, and, as such, Consultant will not be deemed to
have breached this Agreement if any member, officer or director of
the Consultant leaves the firm or dies or becomes physically unable
to perform any meaningful activities during the term of the
Agreement, provided the Consultant otherwise performs its
obligations under this Agreement. However, Consultant shall
designate as their primary contact for the Company, the person
identified under paragraph 16. Any person subsequently
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named to replace this primary contact
shall have similar, or greater, skills or experience.
4.
Remuneration .
4.1
For undertaking this engagement, for
previous services rendered, for performing due diligence, and for
other good and valuable consideration, the Company agrees to pay to
the Consultant a “Commencement Bonus” consisting of an
immediate cash payment of $3,500.00 and One Million Five Hundred
Thousand (1,500,000) shares of the Company’s Common Stock
(“Common Stock” and such shares, collectively, the
“Shares”). This Commencement Bonus shall be fully
paid and non-assessable and shall be issued to Consultant by August
15, 2006.
The Company understands and agrees that
Consultant has foregone significant opportunities to accept this
engagement and that the Company derives substantial benefit from
the execution of this Agreement and the ability to announce its
relationship with Consultant. The Commencement Bonus,
therefore, constitutes payment for Consultant’s agreement to
consult to the Company and is a non-refundable, non-apportionable,
non-ratable retainer and is not a prepayment for future services.
If the Company decides to terminate this Agreement 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 shares of
Common Stock payable to it hereunder. Further, if and in the
event the Company is acquired during the term of this Agreement, it
is agreed and understood that Consultant will not be requested or
demanded by the Company to return any of the shares of Common Stock
payable to it hereunder.
4.2
Up and until 36 months after the
termination of this Agreement, the Company also agrees to pay the
Consultant on the 1 st day of each 3 month period,
commencing October 31, 2006, additional shares of Common Stock so
that the total number of shares paid to the Consultant under this
Agreement total 4.99% of the issued and outstanding shares of the
Company, up to a maximum of 75,000,000 issued and outstanding
shares of the Company. In case the Company shall at any time
subdivide its outstanding shares of Common Stock into a greater
number of shares, the 75,000,000 share maximum amount referenced
above in this paragraph shall be proportionately increased, and
conversely, in case the outstanding shares of Common Stock of the
Company shall be combined into a smaller number of shares, the
75,000,000 share maximum amount referenced above in this paragraph
shall be proportionately decreased.
4.3
For performance under this Agreement on a
month-to-month basis, Company will pay Consultant a cash fee in the
amount of $6,000 per month over the term of this Agreement, the
first monthly payment due and payable on August 1, 2006 and each
following monthly payment payable in full on the 1st day of the
respective month. The Company shall not be obligated to
Consultant for any monthly cash fee for any month or part thereof
remaining from 30 days after the date of any valid cancellation.
4.4
Notwithstanding anything else in this
Agreement to the contrary, Company and Consultant acknowledge and
agree that for purposes of the Company’s internal accounting
practices, the Company may desire to allocate all or a portion of
the Commencement Bonus to any number of the services provided by
the Consultant to the Company under this Agreement consistent with
the United States generally accepted accounting practices.
Accordingly, Consultant agrees to cooperate with the Company,
and will provide to the Company reasonable support and
documentation in connection with any such allocation
process.
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4.5
If at any time after the date of this
Agreement the Company proposes to file a registration statement
with respect to any class of securities (other than pursuant to a
registration statement on Forms S-4 or S-8 or any successor form)
under the Securities Act, the Company shall notify Consultant at
least twenty (20) days prior to the filing of such registration
statement and will offer to include in such registration statement
all or any portion of the Shares. In a written notice to be
delivered to the Consultant within twenty (20) days after receipt
of any such notice from the Company, the Consultant shall state the
number of Shares that it wishes to register for resale and
distribution publicly under the proposed registration statement.
The Company will also use its best efforts, through its
officers, directors, auditors and counsel in all matters necessary
or advisable, to include within the coverage of each such
registration statement (except as hereinafter provided) the Shares
that Consultant has advised Company that Consultant wishes to
register pursuant to such registration statement for resale and
distribution, to prosecute each such registration statement
diligently to effectiveness, and to cause such registration
statement to become effective as promptly as practicable . In
that regard, the Company makes no representation or warranties as
to its ability to have any registration statement declared
effective. In the event the Company is advised by the staff
of the SEC, or any applicable self-regulatory or state securities
agency that the inclusion of the Shares will prevent, preclude or
materially delay the effectiveness of a registration statement
filed, the Company, in good faith, may amend such registration
statement to exclude the Shares without otherwise affecting the
Consultant's rights to any other registration statement.
4.6
Company warrants that the Shares issued
to Consultant under this Agreement by the Company shall be or have
been validly issued, fully paid and n
