MANAGEMENT AND CONSULTING AGREEMENT
This consulting Agreement is made effective this 12th day of December 1998 by an
between Rexon Limited, ("Consultant") a corporation with offices located at X.X.
Xxx 0000, 0000-Xxxxxx 0, Xxxxxxxxxxx and Docuport, Inc. a corporation with
principal offices at 1155 Xxxx Xxxxxxxx West-Suite 3500, X.X. Xxx 00, Xxxxxxxx,
XX X0X0X0 ("Client") with respect to the following:
PREMISES
WHEREAS, Consultant has rendered and continues to render valuable services to
Client in connection with various management, marketing, business planning and
acquisition strategies and
WHEREAS, Client desires to retain Consultant to continue to aid Client in such
areas.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises, covenants and agreement
contained herein, and for other good and valuable consideration, the receipt and
adequacy of which is expressly acknowledged, Client and Consultant are as
follows:
1. Engagement of Consultant
Client hereby retains Consultant to continue to assist Client in the
following areas:
A. Review, analyze and assist the company in the preparation of a
definitive business plan describing the Company's business,
financial condition and future business potential
B. Introducing Client to potential customers "(Customers"), advising
Client in connection with sales proposals to Customers and assisting
the Client in negotiating sales transactions with Customers;
C. Meeting with management and assisting management in developing an
implementing marketing campaigns regarding the Client's products;
D. Analyze and provide advice to management in connection with
potential acquisition candidates including review of the financial,
business and operating history of such candidates;
E. Introducing Client to banks, lenders and other financing sources.
F. Advising the Client in connection with management, marketing and
financing strategy;
G. Advising the Client with respect to the structuring and funding of
receivable and payables as well as the funding of capital
expenditures;
H. Introducing Client to potential business acquisitions and merger
candidates ("Merger Candidates");
I. Inspect the assets and analyze the operations of Merger Candidates;
and
J. Provide advise in structuring business acquisitions and assisting
Client in negotiations for the acquisition of Merger Candidates.
All the foregoing services collectively are referred to herein as the
"Consulting Services".
2. Compensation.
Client desires for the Consultant to perform the Consulting Services
on behalf of the Client as of the date of this Agreement. The Consultant
acknowledges that the Client currently lacks the financial resources necessary
to adequately compensate the Consultant for the Consulting Services.
Accordingly, the Consultant has agreed to perform the Consulting Services on
behalf of the Client and accept deferred compensation from the Client and the
immediate issuance to the
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Consultant of shares of stock equal to 23.3% of the currently outstanding common
shares of Docuport (approximately 700,000 shares). Such shares shall be issued
to Consultant from the present from present shareholders. At such time as
Docuport becomes a publicly traded company under "504", Rexon or its assigns
shall receive a consulting fee of $5,000 per month for a period of twenty-four
months for such services.
3. Terms of Agreement, Extensions and Renewals
The term of this Agreement shall commence on the date hereof and
shall expire thirty-six (36) months from the compensation date (the "Initial
Consulting Period"). Thereafter, this Agreement can be extended on a
month-to-month basis (the "Extension Period") by mutual agreement of the parties
executed in writing specifying the compensation for the Extension Period. Such
notice shall be in writing and shall be delivered at least (10) days prior to
the end of the Initial Consulting Period or any subsequent extension period. In
the event of termination pursuant to this paragraph, neither party shall have
any further rights or obligations hereunder after the effective date of such
termination except that the obligation of Client to make payments as provided
for in this Agreement and to reimburse costs and expenses shall continue until
paid in full by Client.
4. Nondisclosure of Confidential Information
In consideration for the Client entering into this Agreement,
Consultant agrees that the following items used in the Clients business are
secret, confidential, unique and valuable, were developed by Client at great
cost and over a long period of time and disclosure of any of the items to anyone
other than Client's officers, agents, or authorized employees, will cause Client
irreparable injury.
A. Non-public financial information, accounting information, plans of
operations, possible mergers or acquisitions.
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B. Customer lists, call lists and other confidential customer data;
C. Memoranda, notes, records concerning the technical processes
conducted by Client;
D. Sketches, plans, drawings and other confidential research and
development data or;
E. Marketing and Manufacturing processes and the composition of
Client's products.
5. Due Diligence
Client shall supply and deliver to Consultant all information
relating to its business as may be reasonably requested by Consultant and enable
Consultant to make such investigation of Client and its business prospects.
6. Best Efforts Basis
Consultant agrees that he will, at all times, faithfully and to the
best of his experience, ability and talents, perform all the duties that may be
required of and from Consultant pursuant to the terms of this Agreement.
Consultant does not guarantee that his efforts will have any impact on Client's
business or that any subsequent financial improvement will result of
Consultant's efforts. Client understands and acknowledges that the success or
failure of Consultant's efforts will be predicated on Client's assets and
operating results.
7. Client's Right to Approve Transactions
Client expressly retains the right to approve, in its sole
discretion, each and every transaction introduced by Consultant that involves
Client as a party to any agreement. Consultant and Client mutually agree that
Consultant is not authorized to enter into agreements on behalf of Client. It is
mutually understood and agreed that Client is not obligated to accept or close
on sales proposals, marketing proposals, financial transactions, any promotional
proposal, acquisition or merger transactions submitted by Consultant.
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8. Place of Services
The Consulting Services contemplated to be performed by Consultant
will be performed at locations selected by Consultant. It is understood and
expected that Consultant will make contacts with persons and entities within
and/or outside the U.S. deemed appropriate by Consultant.
9. Cost and Expenses
Consultant shall be responsible for all out-of-pocket expenses,
travel expenses, third party expenses, filing fees, copy and mailing expenses
that Consultant may incur in performing Consulting Services under this
Agreement, unless specifically authorized by Client.
10. Non-Exclusive Services
Client acknowledges that Consultant is currently providing services
of the same or similar nature to other parties and Client agrees that Consultant
is not prevented or barred from rendering services of the same nature or a
similar nature to any other individual or entity. Consultant understands and
agrees that Client shall not be prevented or barred from retaining other persons
or entities to provide services of the same or similar nature as those provided
by Consultant. Consultant will advise Client of its position with respect to any
activity, employment, business arrangement or potential conflict of interest
which may be relevant to this Agreement.
11. All Prior Agreements Terminated
This Agreement constitutes the entire understanding of the parties
with respect to the engagement of Consultant and all prior agreements and
understandings with respect thereto are hereby terminated and shall be of no
force or effect.
12. Representations and Warranties of Client
Client hereby represents and warrants to Consultant that:
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A. Corporate Existence - Client is a corporation duly organized and
validly existing, with corporate power to own property and carry on
its business as it is now being conducted.
B. No Conflict - This Agreement has been duly executed by Client and
the execution and performance of this Agreement will not violate or
result in a breach of, or constitute a default in, any agreement,
instrument, judgment, decree or order to which Client is a party or
to which Client is subject, nor will such execution and performance
constitute a violation or conflict of any fiduciary duty to which
Client is subject.
C. Validity of Shares - The shares issued to Consultant pursuant to
paragraph 2 of this Agreement, are and will be duly authorized,
validity issued, fully paid and non-assessable, free and clear of
all liens and encumbrances.
D. Authority - Client has the full legal right, power, authority and
approval required to enter into, execute and deliver all the shares
described in paragraph 2 of this Agreement and to fully perform all
of its obligations hereunder.
13. Representations and Warranties of Consultant
Consultant hereby represents and warrants to Client that:
A. Information - No representation or warranty contained herein, nor a
statement in any document, certificate or schedule furnished or to
be furnished pursuant to the Agreement by Consultant, or in
connection with the transaction contemplated hereby, contains or
contained any untrue statement of material fact.
B. Reliance Upon Representations - The information provided pursuant to
this Agreement may be relied upon by Client as true and correct as
of the date of delivery of any shares received
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by Consultant through the execution of options hereunder. Further,
Consultant represents as follows:
(a) by reason of Consultant's knowledge and experience of
financial and business matters in general and investments in
particular Consultant is capable of evaluating the merits and
risks of this transaction and in bearing the economic risks of
an investment in the warrants and shares and the Client in
general and fully understands the speculative nature of such
securities and the possibility of such loss; the Consultant
understands that the warrants and the shares will be fully
restricted securities and that they have not been registered
with the Securities and Exchange Commission or any state
securities bureau. Accordingly, the shares and warrants will
contain appropriate restricted stock legends; and
(b) Consultant has had the opportunity to ask questions and
receive answers concerning the terms and conditions of the
shares to be issued hereby and reserved for issuance pursuant
hereto and to obtain any additional information which Client
possess or can acquire without reasonable effort or expense
that is necessary to verify the accuracy of information
furnished; and
(c) Subsequent Events - Consultant will notify Client if
subsequent to the date hereof either party incurs obligations
which could compromise its efforts and obligations under this
Agreement.
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14. Consultant is Not an Agent or Employee
Consultant's obligations under this Agreement consist solely of the
Consulting Services described herein. In no event shall Consultant be considered
to act as the employee or agent of Client or otherwise represent or bind Client.
For the purposes of this Agreement, Consultant is an independent contractor. All
final decisions with respect to acts of Client or its affiliates, whether or not
made pursuant to or in reliance on information or advice furnished by Consultant
hereunder, shall be those of Client or such affiliates and Consultant shall
under no circumstance be liable for any expense incurred or loss suffered by
Client as a consequence of such action or decisions.
15. Miscellaneous
A. Authority - The execution and performance of this Agreement have
been authorized by all requisite corporate action. This Agreement
constitutes a valid and binding obligation of the parties hereto.
B. Amendment - This Agreement may be amended or modified at any time in
any manner only by an instrument in writing executed by the parties
hereto.
C. Waiver - All the rights and remedies of either party under this
Agreement are cumulative and not exclusive of any other rights and
remedies provided by law. No delay or failure on the part of either
party in the exercise of any right or remedy arising from a breach
of this Agreement shall operate as a waiver of any subsequent right
or remedy arising from a subsequent breach of this Agreement. The
consent of any party where required hereunder to any act of
occurrence shall not be deemed to be a consent to any other act of
occurrence. Upon delivery of such instruction to
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Client, the Client shall irrevocably be bound to make such payments
directly to third parties so designed.
D. Assignment
(1) Neither this Agreement nor any right created by it shall be
assignable by either party without the prior written consent
of the other.
(2) Nothing in this Agreement, expressed or implied, is intended
to confer upon any person or parties designated below, other
than the parties and their successors, any rights or remedies
under this Agreement.
(3) Notwithstanding the foregoing, the Client agrees to deliver
any compensation payable to the Consultant hereunder to third
parties designated by the Consultant upon Consultant's
delivery to Client of written instructions to make such
payments directly to third parties.
E. Notices - Any notice or other communication required or permitted by
this Agreement must be in writing and shall be deemed to be properly
given when delivered in person to an officer of the other party,
when deposited in the United States miails for transmittal by
certified or registered mail, postabe prepaid, or when deposited
with a public telegraph company for transmittal or when sent by
facsimile transmission, charges prepaid provided that the
communications is addressed:
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(1) In the case of Client to:
Docuport Inc.
0000 Xxxx Xxxxxxxx Xxxx-Xxxxx 0000
X.X. Xxx 00
Xxxxxxxx, X.X. X0X0X0
(2) In the case of Consultant to:
Rexon Limited
X.X. Xxx 0000
0000-Xxxxxx 0
Xxxxxxxxxxx
(3) With a copy to:
Diversified Investors Capital Services of North America, Inc.
000 Xxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
or to such other person or addressee as may be designated by the parties to
receive notice.
F. Headings and Captions - The headings of paragraph are included
solely for convenience. If a conflict exists between any heading and
the text of this Agreement, the text shall control.
G. Intentionally Deleted
H. Effect of Partial Invalidity - In the event that any one or more of
the provisions contained in this Agreement shall for any reason be
held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any
other provisions of this Agreement, but this Agreement shall be
constructed
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as if it never contained any such invalid, illegal or unenforceable
provisions.
I. Attorney's Fees - If any action at law or in equity, including an
action for declaratory relief, is brought to enforce or interpret
the provisions of this Agreement, the prevailing party shall be
entitled to recover actual attorney's fee from the other party. The
attorney's fees may be ordered by the court in the trial of any
action described in this paragraph or may be enforced in a separate
action brought for determining attorney's fees.
J. Time is of the Essence - Time is of the essence of this Agreement
and of each and every provision hereof.
K. Mutual Cooperation - The parties hereto shall cooperate with each
other to achieve the purpose of this Agreement and shall execute
such other and further documents and take such other and further
actions as may be necessary or convenient to effect the transactions
described herein.
L. Further Actions - At any time and from time-to-time, each party
agrees, at its or their expense, to take actions and to execute and
deliver documents as may be reasonably necessary to effectuate the
purpose of this Agreement.
M. Indemnification - Client and Consultant agree to indemnify, defend
and hold each other harmless from and against all demands, claims,
actions, losses, damages, liabilities, costs and expenses, including
without limitation, interest, penalties and attorneys' fees and
expenses asserted against or imposed or incurred by either party by
reason of a resulting from a breach of any
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representation, warrant, covenant condition or agreement of the
other party to this Agreement.
N. No Third Party Beneficiary - Nothing in this Agreement, expressed or
implied, is intended to confer upon any person, other than the
parties hereto and their successors, any rights or remedies under or
by reason of this Agreement unless this Agreement specifically
states such intent.
0. Facsimile Counterparts - If a party signs this Agreement and
transmits an electronic facsimile of the signature page to the other
party, the party who receives the transmission may rely upon the
electronic facsimile as a signed original of this Agreement.
P. Governing Law - The parties agree that in the event of any dispute
under this Agreement, the laws of the State of New York will
control, and any actions brought under this Agreement shall be
brought in an appropriate court in the State of New York. This is
agreed to without regard to any conflict of law issues that might
otherwise arise.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
herein above written.
REXON LIMITED
By: /s/ Xxxxxx Didi
-----------------------------
DOCUPORT, INC.
By: /s/ Xxxx Xxxx
-----------------------------
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