CONSULTING AGREEMENT
CONSULTING AGREEMENT made and entered into as of the 1st day of
October, 1998 by and between TTR Inc., a Delaware corporation (hereafter "TTR"
or the "Company") and Biscount Overseas Ltd. with offices at Xxxxxxxxxx Xx. 00,
Xxxxxxxx 000, 0000 Xxxxxx, Xxxxxxxxxxx ( hereafter the "Consultant").
W I T N E S S E T H
WHEREAS, the Company is in the business developing and marketing
various software products and components;
WHEREAS, Consultant has experience and expertise in the providing
general financial and investment advice to high-tech companies;
WHEREAS, the Company desires to engage the services of Consultant to
provide the Services;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
undertakings of the parties, it is hereby agreed:
1. Engagement & Duties.
1.1 The Company hereby engages Consultant and the Consultant agrees to
provide, from time to time as requested by the Company, financial and investment
advice, including without limitation, locating and interesting strategic
investors, considering potential acquisition targets for the Company and
locating other potential areas of joint cooperation and development (hereinafter
the "Services"). Consultant shall devote such time and effort to the Services
hereunder as is necessary and proper for the fulfillment of Consultant's
obligations hereunder.
1.2 Consultant shall report regularly to the President of the Company
with respect to Consultant's activities hereunder.
2. Compensation For Services to be rendered hereunder, the Company shall issue
to Consultant 44,000 shares of the Company's Common Stock, par value $0.001 (the
"Common Stock" or "Securities").
3. Term & Termination. This Agreement shall continue in full force and effect
through September 28, 1999, unless the parties mutually agree otherwise.
4. Representations of Consultant Respecting the Securities.
4.1 General Restriction on Transfer. Except for transfers otherwise
permitted by this Agreement or applicable law, Consultant agrees that it will
not transfer any of the Securities.
4.2 Not for Resale. Consultant represents that it is acquiring the
Securities for investment for its own account and not with a view to, or for
resale in connection with, the distribution or other disposition thereof.
Consultant agrees that it will not, directly or indirectly, offer, transfer,
sell, assign, pledge, hypothecate or otherwise dispose of (each a "Transfer")
any of the Securities unless such Transfer complies with the provisions of this
Agreement and (i) the Transfer is pursuant to an effective registration
statement under the Securities Act of 1933, as amended, and the rules and
regulations in effect thereunder (the "Securities Act"), or (ii) counsel for
Consultant shall have furnished the Company with an
opinion, reasonably acceptable to the Company, that no such registration is
required because of the availability of an exemption under the Securities Act.
4.3 Certain Permitted Transfers. (i) Notwithstanding the general
prohibition on Transfers contained herein, the Company acknowledges and agrees
that any Transfer in a private transaction which does not include a public
distribution is permitted and need not require an opinion of counsel, provided,
that prior to such Transfer, the transferee shall deliver to the Company a valid
written undertaking to be bound by the terms of this Agreement.
(ii) From and after the date on which the Company (i) shall have filed
a registration statement pursuant to the requirements of Section 12 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), in
respect of the Common Stock or (ii) engaged in a primary or secondary
offering of shares of Common Stock pursuant to an effective registration
statement under the Securities Act (either of which event, a "Public
Offering"), Consultant may sell at any time any of its Securities in a Rule
144 Transaction (as hereinafter defined); provided, that, each such sale
shall be made in compliance with Section 4.4 below.
4.4 Rule 144 Sales. If any of the Securities are disposed of according
to Rule 144 ("Rule 144 Transaction") under the Securities Act or otherwise,
Consultant shall promptly notify the Company of such intended disposition and
shall deliver to the Company at or prior to the time of such disposition such
documentation as the Company may reasonably request in connection with such sale
and, in the case of a disposition pursuant to Rule 144, shall deliver to the
Company an executed copy of any notice on Form 144 required to filed with the
Securities and Exchange Commission.
4.5 Legend. Each certificate representing the Securities shall bear the
following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE OR INSTRUMENT MAY NOT
BE TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE
DISPOSED OF UNLESS SUCH TRANSFER, SALE OR ASSIGNMENT, PLEDGE,
HYPOTHECATION OR OTHER DISPOSITION COMPLIES WITH THE PROVISIONS OF THE
AGREEMENT DATED AS OF June 1, 1998 (A COPY OF WHICH IS ON FILE WITH THE
SECRETARY OF THE COMPANY)."
5. Registration
The Company has agreed to include the Securities in any registration
statement filed by the Company under the Securities Act of 1933, as amended, in
connection with a public offering of Common Stock, provided that the managing
underwriter in the public offering consents to such inclusion and subject to any
terms or conditions, including lock-ups, that such underwriter may place on the
Securities. There can be no assurance that a public offering will be undertaken
or consummated.
6. Proprietary Information; Non- Competition
6.1 The term "Information" means any and all confidential and
proprietary information including but not limited to any and all specifications,
formulae, prototypes, software design plans, computer programs, and any and all
records, data, methods, techniques, processes and projections, plans, marketing
information, materials, financial statements, memoranda, analyses, notes, and
other data and information (in whatever form), as well as improvements and
know-how related thereto, relating to the Company or its products. Information
shall not include information that (a) was already known to or
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independently developed by the Consultant prior to its disclosure as
demonstrated by reasonable and tangible evidence satisfactory to the Company;
(b) shall have appeared in any printed publication or patent or shall have
become part of the public knowledge except as a result of breach of this
Agreement by the Consultant or similar agreements by other Company consultants
or employees (c) shall have been received by the Consultant from another person
or entity having no obligation to the Company or (d) is approved in writing by
the Company for release by the Consultant.
6.2 The Consultant agrees to hold in trust and confidence all
Information disclosed to it and further agrees not to exploit or disclose the
Information to any other person or entity or use the Information directly or
indirectly for any purpose other than for its work with the Company.
6.3 The Consultant agrees to disclose the Information only to persons
necessary in connection with its work with the Company and who have undertaken
the same confidentiality obligations set forth herein in favor of the Company.
The Consultant agrees to assume full responsibility for the confidentiality of
the Information disclosed to it and to prevent its unauthorized disclosure, and
shall take appropriate measures to ensure that such persons acting on his behalf
are bound by a like covenant of secrecy.
6.4 The Consultant acknowledges and agrees that the Information
furnished hereunder is and shall remain proprietary to the Company. Unless
otherwise required by statute or government rule or regulation, all copies of
the Information, shall be returned to the Company immediately upon request
without retaining copies thereof.
6.5 Consultant represents and warrants that his receipt of Information
hereunder or use thereof for the purposes of this Agreement shall not violate
any undertaking or obligation of the Consultant to any third party or entitle
any third party to access or right in the Information.
7. Warranty
Consultant represents and warrants that on the date hereof it free to
be engaged by the Company upon the terms contained in this Agreement and that
there are no agreements or arrangements restricting full performance of
Consultant's duties hereunder.
8. General Provisions
8.1 This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof, and shall not be amended, modified or
varied by any oral agreement or representation or otherwise other than by a
written instrument executed by both parties or their duly authorized
representatives.
8.2 No failure, delay or forbearance by a party in exercising any power
or right hereunder shall in any way restrict or diminish such party's rights and
powers under this Agreement, or operate as a waiver of any breach or
non-performance by either party of any of the terms or conditions hereof.
8.3 If any term or provision of this Agreement shall be declared
invalid, illegal or unenforceable, then such term or provision shall be
enforceable to the extent that a court shall deem it reasonable to enforce such
term or provision and if such term or provision shall be unenforceable, such
term or provision shall be severed and all remaining terms and provisions shall
be unaffected and shall continue in full force and effect.
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8.4 The terms and conditions of this Agreement supersede those of all
previous agreements and arrangements, either written or oral between the Company
and Consultant relating to the subject thereof.
8.5 Consultant acknowledges and agrees that he is an independent
contractor, is not the agent of the Company and has no authority in such
capacity to bind or commit the Company by or to any contract or otherwise.
Consultant is not, expressly or by implication, an employee of the Company for
any purpose whatsoever.
8.6 This Agreement is personal to Consultant and Consultant shall not
assign or delegate his rights or duties to a third party, whether by contract,
will or operation of law, without the Company's prior written consent.
8.7 Each notice and/or demand given by one party pursuant to this
Agreement shall be given in writing and shall be sent by registered mail to the
other party at its designated address and such notice and/or demand shall be
deemed given at the expiration of seven (7) days from the date of mailing by
registered mail or immediately if delivered by hand. Delivery by facsimile and
other electronic communication shall be sufficient and be deemed to have
occurred upon electronic confirmation of receipt.
8.8 This Agreement shall be interpreted, construed and governed in
accordance with the law of the State of New York.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
TTR Inc. Biscount Overseas Ltd.
/s/ XXXX XXXXXXX /s/__________________
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