EXHIBIT 10.14
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CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") is made and entered into as of
February 1, 2001, by and between EssTec, Inc., a Nevada corporation (hereinafter
referred to as the "Company") and Xxxxxx Xxxxxxx, an individual or assignees
(hereinafter referred to as the "Consultant") (collectively, the "Parties").
RECITALS
WHEREAS, Consultant has certain management consulting experience pertaining
to corporate structure, marketing, strategic alliances, and other matters
relating to the management and growth of companies; and
WHEREAS, the Company wishes to engage the services of the Consultant to
assist the Company in managing its business operations and growth.
NOW, THEREFORE, in consideration of the mutual promises herein contained,
the Parties hereto hereby agree as follows:
1. CONSULTING SERVICES
Attached hereto as Exhibit A and incorporated herein by this reference is a
description of the services to be provided by the Consultant hereunder (the
"Consulting Services"). Consultant hereby agrees to utilize its best efforts in
performing the Consulting Services, however, Consultant makes no warranties,
representations, or guarantees regarding any corporate strategies attempted by
the Company or the eventual effectiveness of the Consulting Services.
2. TERM OF AGREEMENT
This Agreement shall be in full force and effect commencing upon the date
hereof. This Agreement has a term of one year beginning on the date hereof.
Either party hereto shall have the right to terminate this Agreement immediately
upon written notice to the other party, with or without cause, at any time
notwithstanding compensation accrued and due consultant as outlined in Exhibit
B.
3. TIME DEVOTED BY CONSULTANT
It is anticipated that the Consultant shall spend as much time as deemed
necessary by the Consultant in order to perform the obligations of Consultant
hereunder. The Company understands that this amount of time may vary and that
the Consultant may perform Consulting Services for other companies.
4. PLACE WHERE SERVICES WILL BE PERFORMED
The Consultant will perform most services in accordance with this Agreement
at Consultant's offices. In addition, the Consultant will perform services on
the telephone and at such other place(s) as necessary to perform these services
in accordance with this Agreement.
5. COMPENSATION TO CONSULTANT
The Consultant's compensation for the Consulting Services shall be as set
forth in Exhibit B attached hereto and incorporated herein by this reference.
6. INDEPENDENT CONTRACTOR
Both Company and the Consultant agree that the Consultant will act as an
independent contractor in the performance of his duties under this Agreement.
Nothing contained in this Agreement shall be construed to imply that Consultant,
or any employee, agent or other authorized representative of Consultant, is a
partner, joint venturer, agent, officer or employee of Company.
7. CONFIDENTIAL INFORMATION
The Consultant and the Company acknowledge that each will have access to
proprietary information regarding the business operations of the other and agree
to keep all such information secret and confidential and not to use or disclose
any such information to any individual or organization without the
non-disclosing Parties' prior written consent. It is hereby agreed that from
time to time Consultant and the Company may designate certain disclosed
information as confidential for purposes of this Agreement.
8. INDEMNIFICATION
The Company hereby agrees to indemnify and hold Consultant harmless from
any and all liabilities incurred by Consultant under the Securities Act of 1933,
as amended (the "Act"), the various state securities acts, or otherwise, insofar
as such liabilities arise out of or are based upon (i) any material misstatement
or omission contained in any offering documents provided by the Company (ii) any
actions by the Company, direct or indirect, in connection with any offering by
the Company, in violation of any applicable federal or state securities laws or
regulations, or (iii) a breach of this Agreement by the Company. Furthermore,
the Company agrees to reimburse Consultant for any legal or other expenses
incurred by Consultant in connection with investigating or defending any action,
proceeding, investigation, or claim in connection herewith. The indemnity
obligations of the Company under this paragraph shall extend to the
shareholders, directors, officers, employees, agents, and control persons of
Consultant.
Consultant hereby agrees to indemnify and hold the Company harmless from
any and all liabilities incurred by the Company under the Act, the various state
securities acts, or otherwise, insofar as such liabilities arise out of or are
based upon (i) any actions by Consultant, its officers, employees, agents, or
control persons, direct or indirect, in connection with any offering by the
Company, in violation of any applicable federal or state securities laws or
regulations, or (ii) any breach of this Agreement by Consultant.
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The indemnity obligations of the Parties under this paragraph 8 shall be
binding upon and inure to the benefit of any successors, assigns, heirs, and
personal representatives of the Company, the Consultant, and any other such
persons or entities mentioned hereinabove.
9. COVENANTS OF CONSULTANT
Consultant covenants and agrees with the Company that, in performing
Consulting Services under this Agreement, Consultant will:
(a) Comply with all federal and state securities and corporate laws;
(b) Not make any representations other than those authorized by the
Company; and
(c) Not publish, circulate or otherwise use any solicitation materials,
investor mailings, or updates other than materials provided by or otherwise
approved by the Company.
10. MISCELLANEOUS
(A) Any controversy arising out of or relating to this Agreement or any
modification or extension thereof, including any claim for damages and/or
rescission shall be settled by arbitration in Orange County, California in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association before a panel of three arbitrators. The arbitrators sitting in any
such controversy shall have no power to alter or modify any express provisions
of this Agreement or to render any award which by its terms effects any such
alteration, or modification subject to 11(G). This Section 11 shall survive the
termination of this Agreement.
(B) If either party to this Agreement brings an action on this
Agreement, the prevailing party shall be entitled to reasonable expenses
therefore, including, but not limited to, attorneys' fees and expenses and court
costs.
(C) This Agreement shall inure to the benefit of the Parties hereto,
their administrators and successors in interest. This Agreement shall not be
assignable by either party hereto without the prior written consent of the
other.
(D) This Agreement contains the entire understanding of the Parties and
supersedes all prior agreements between them.
(E) This Agreement shall be constructed and interpreted in accordance
with and the governed by the laws of the State of California.
(F) No supplement, modification or amendment of this Agreement shall be
binding unless executed in writing by the Parties. No waiver of any of the
provisions of this Agreement shall be deemed, or shall constitute, a waiver of
any other provision, whether or not similar, nor shall any waiver constitute a
continuing waiver. No waiver shall be binding unless executed in writing by the
party making the waiver.
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(G) If any provision hereof is held to be illegal, invalid or
unenforceable under present or future laws effective during the term hereof,
such provision shall be fully severable. This Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part hereof, and the remaining provisions hereof shall remain in
full force and effect and shall not be affected by the illegal, invalid or
unenforceable provision or by its severance herefrom.
IN WITNESS WHEREOF, the Parties hereto have placed their signatures hereon
on the day and year first above written.
ESSTEC, INC., XXXXXX XXXXXXX
a Nevada corporation
/s/ Xxxxx Xxxx /s/ Xxxxxx Xxxxxxx
_____________________________________ _____________________________________
BY: Xxxxx Xxxx Xxxxxx Xxxxxxx
ITS: President
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EXHIBIT A
DESCRIPTION OF CONSULTING SERVICES
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Consultant shall perform the following services pursuant to the terms of
this Agreement:
(1) General management consulting services, including but not limited to:
(a) advising on business development;
(b) advising on marketing; and
(c) developing strategic alliances.
(2) Serving on the board of directors of the Company, including but not
limited to:
(a) assisting the board of directors in developing policies and
procedures; and
(b) assisting the board of directors of the Company in
mergers, acquisitions, and other business combinations.
The above services will be further defined and delineated by the Company's
board of directors from time to time as necessary.
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EXHIBIT B
TERMS OF COMPENSATION
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The Consultant's compensation hereunder shall be as follows:
1. DIRECTOR OPTIONS. For serving on the Company's Board of Directors,
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Consultant shall receive 20,000 stock options under the Company's 2000 Incentive
and Nonstatutory Stock Option Plan (the "Stock Option Plan") exercisable at the
current fair market value of the Company's common stock (as of this date, $3.50)
for a term of five years vesting monthly over one year beginning on the date of
this Agreement.
2. ADVISORY FEES. A retainer fee of $25,000 and 25000 stock options under
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the Stock Option Plan exercisable at the fair market value of the Company's
common stock on the date of issuance (as of this date, $3.50) for a term of five
years, vesting immediately upon issuance. Additional fees to be paid against
invoice
3. BUSINESS DEVELOPMENT OPTIONS. For serving as a consultant to the Company,
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Consultant shall receive 100,000 stock options under the Stock Option Plan
exercisable at the current fair market value of the Company's common stock (as
of this date, $3.50) for a term of five years, 50% of which shall vest
immediately upon execution of this Agreement and the remaining 50% will vest
monthly over 4 months beginning on March 1st, 2001.
4. SHORT TERM OPTIONS. For assisting the Company prior to its planned
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initial public offering, Consultant shall receive 100,000 stock options under
the Stock Option Plan exercisable at $1.50 per share vesting immediately upon
execution of this Agreement, but expiring on the date on which the Company files
a registration statement with the Securities and Exchange Commission for an
initial public offering.
5. SIGN-ON BONUS. As a sign-on bonus, Consultant shall receive 50,000 stock
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options under the Stock Option Plan exercisable at $1.50 per share vesting
immediately upon execution of this Agreement and expiring five years from the
date of execution of this Agreement.
6. EXPENSES. Consultant shall be reimbursed for all out-of-pocket expenses
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upon submission of receipts or accounting to the Company, including, but not
limited to, all travel expenses, research material and charges, computer
charges, long-distance telephone charges, facsimile costs, copy charges,
messenger services, mail expenses and such other Company related charges as may
occur exclusively in relation to the Company's business as substantiated by
documentation. Any expenditure above $100 will require oral or written
pre-approval of the Company.
ESSTEC, INC., XXXXXX XXXXXXX
a Nevada corporation
_____________________________________ _____________________________________
BY:Xxxxx Xxxx Xxxxxx Xxxxxxx
ITS: President
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