CUSIP No. 19421N 10 0 13D Page 8 of 20 Pages
EXHIBIT 10.2
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THIS AGREEMENT is made effective as of the 20th day of September, 1999, and
entered into on February 16, 2001,
Between:
EFINANCIAL XXXXX.XXX, INC.
(hereinafter referred to as the "Company")
OF THE FIRST PART
AND:
XXXXXXX XXXXXXX
(hereinafter referred to as the "Contractor")
OF THE SECOND PART
WHEREAS
A. The Company desires to retain the Contractor to assist the Company in the
areas of strategic development, acquisitions and corporate finance and the
Contractor has agreed to so assist the Company on the terms and conditions of
this Agreement.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the mutual
covenants and promises set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged by
each, the parties hereto agree as follows:
ARTICLE 1
APPOINTMENT AND AUTHORITY OF CONTRACTOR
1.1 Appointment of Contractor
---------------------------
The Company hereby appoints the Contractor to perform certain services for
the benefit of the Company as hereinafter set forth, and the Company hereby
authorizes the Contractor to exercise such powers as provided under this
Agreement. The Contractor accepts such appointment on the terms and conditions
herein set forth.
1.2 Authority of Contractor
-------------------------
The Contractor shall have no right or authority, express or implied, to
commit or otherwise obligate the Company in any manner whatsoever except to the
extent specifically provided herein or specifically authorized in writing by the
Company.
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1.3 Independent Contractor
-----------------------
In performing its services hereunder, the Contractor shall be an
independent contractor and not an employee or agent of the Company, except that
the Contractor shall be the agent of the Company solely in circumstances where
the Contractor must be the agent to carry out its obligations as set forth in
this Agreement. Nothing in this Agreement shall be deemed to require the
Contractor to provide its services exclusively to the Company and the Contractor
hereby acknowledges that the Company is not required and shall not be required
to make any remittances and payments required of employers by statute on the
Contractor's behalf and the Contractor or any of its agents or employees shall
not be entitled to the fringe benefits provided by the Company to its employees.
ARTICLE 2
CONTRACTOR'S AGREEMENTS
2.1 General
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the services to be provided by the contractor to the Company shall include
the following:
(a) assisting the Company in its strategic planning and development;
(b) providing the Company with advise in connection with the raising of
capital and the Company's
affairs generally;
(c) identifying potential acquisition targets for the Company and
assisting the Company in
negotiating and consummating acquisitions;
(d) implementing or causing to be implemented decisions of the Company
in accordance with and as limited by this Agreement;
(e) providing such other services as the Company may reasonably
request;
and in so assisting the Company, the Contractor shall at all times be subject to
the direction of the Company and shall keep the Company informed as to all
matters concerning the Contractor's activities.
2.2 Expense Statements
-------------------
The Contractor shall on or before the 15th day of each calendar month
during the term hereof, or if a Saturday, Sunday or holiday the next following
business day, render to the Company an itemized statement and accounting for the
previous calendar month, together with such supporting documents as and when the
Company may reasonably require, of all expenses with the company is obligated by
the Agreement to reimburse.
The Contractor may incur expenses in the name of the Company up to an
amount per month as agreed in advance by the Company, such expenses to relate
solely to the carrying out of the Contractor's duties hereunder. The Contractor
will immediately forward all invoices for expenses incurred on behalf of and in
the name of the Company and the Company agrees to pay said invoices directly on
a timely basis.
CUSIP No. 19421N 10 0 13D Page 10 of 20 Pages
ARTICLE 3
COMPANY'S AGREEMENTS
3.1 Compensation of Contractor
----------------------------
As compensation for the services rendered by the Contractor pursuant to
this Agreement, the Company shall pay to the Contractor monthly in advance, on
or before the first day of each month or if a Saturday, Sunday or holiday the
next following business day a fee of $10,000 per month during the term hereof
3.2 Indemnity by Company
----------------------
The Company hereby agrees to indemnify, defend and hold harmless the
Contractor, from and against any and all claims, demands, losses, actions,
lawsuits and other proceedings, judgments and awards, and costs and expenses
(including reasonable legal fees), arising directly or indirectly, in while or
in part, out of any matter related to any action taken by the Contractor within
the scope of its duties or authority hereunder, excluding only such of the
foregoing as arise from the fraudulent, gross negligence, reckless or willful
act or omission of the contractor, or as arise in respect of the Contractor's
office overhead or the Contractor's general administrative expenses, and the
provisions of this Section 3.2 shall survive termination of this Agreement
ARTICLE 4
DURATION, TERMINATION AND DEFAULT
4.1 Effective Date
---------------
This Agreement shall become effective as of the 16th day of February 2001,
and shall continue on subject to termination as provided for herein.
4.2 Termination
-----------
This Agreement may be terminated by either party by giving the other 30
days written notice of such termination provided that in circumstances where the
Contractor would otherwise have been entitled to receive a payment pursuant to
section 3.1 herein within 30 days following termination of this Agreement the
Company shall make such payment to the Contractor as if the Agreement had not
bene terminated.
4.3 Duties Upon Termination
-------------------------
Upon termination of this Agreement for any reason, the Contractor shall
upon receipt of all sums due and owing, promptly deliver the following in
accordance with the directions of the company:
CUSIP No. 19421N 10 0 13D Page 11 of 20 Pages
(a) a final accounting, reflecting the balance of expenses incurred on
behalf of the company as of the date of termination; and
(b) all documents pertaining to the Company of this Agreement,
including but not limited to, all books of account, correspondence and
contracts, provided that the Contractor shall be entitled thereafter to inspect,
examine and copy all of the documents which it delivers in accordance with this
provision at all reasonable times upon three (3) days' notice to the Company.
4.4 Compensation of Contractor on Termination
---------------------------------------------
Upon termination of this Agreement, the Contractor shall be entitled to
receive as its full and sole compensation in discharge of obligations of the
Company to the Contractor under this Agreement all sums due and payable under
this Agreement to the date of termination and the Contractor shall have no right
to receive any further payments; provided, however, that the Company shall have
the right to offset against any payment owing to the Contractor under this
Agreement any damages, liabilities, costs or expenses suffered by the Company by
reason of the fraud, negligence, or willful act of the Contractor, to the extent
such right has not been waived by the Company.
ARTICLE 5
CONFIDENTIALITY
5.1 Ownership of Work Product
----------------------------
All reports, documents, concepts, products and processes together with any
marketing schemes, business or sales contracts, or any business opportunities
prepared, produced, developed, or acquired, by or at the direction of the
Contractor, directly or indirectly, in connection with or otherwise developed or
first reduced to practice by the Contractor performing the services
(collectively, the "Work Product") shall belong exclusively to the Company which
shall be entitled to all right, interest, profits or benefits in respect
thereof. No copies, summaries or other reproductions of any Work Product shall
be made by the Contractor without the express permission of the Company,
provided that the Contractor is hereby given permission to maintain one copy of
the Work Product for his own use.
5.2 Confidentiality
---------------
The Contractor shall not, except as authorized or required by its duties,
reveal or divulge to any person or companies any of the trade secrets, secret or
confidential operations, processes or dealings or any information concerning the
organization, business, finances, transactions or other affairs of the Company,
which may come to his knowledge during the term of this Agreement and shall keep
in complete secrecy all confidential information entrusted to him and shall not
use or attempt to use any such information in any manner which may injure or
cause loss, either directly or indirectly, to the Company's business or may be
likely so to do. This restriction shall continue to apply after the termination
of this Agreement without limit in point of time but shall cease to apply to
information or knowledge which may come into the public domain.
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The Contractor shall comply with such directions as the Company shall make
to ensure the safeguarding or confidentiality of all such information.
5.3 Devotion to Contract
----------------------
During the term of the Agreement, the Contractor shall devote sufficient
time, attention, and ability to the business of the Company, and to any
associated company, as is reasonably necessary for the proper performance of its
services pursuant to this Agreement. Nothing contained herein shall be deemed
to require the Contractor to devote its exclusive time, attention and ability to
the business of the Company. During the term of this Agreement, the Contractor
shall:
(a) at all times perform his services faithfully, diligently, to the
best of its ability and in the best interests of the Company;
(b) devote such of his time, labor and attention to the business of the
Company as is necessary for the proper performance of the Contractor's services
hereunder; and
(c) refrain from acting in any manner contrary to the best interests of
the Company or contrary to the duties of the Contractor as contemplated herein.
5.4 Other Activities
-----------------
The Contractor shall not be precluded from acting in a function similar to
that contemplated under this Agreement for any other person, firm or company.
ARTICLE 6
MISCELLANEOUS
6.1 Waiver: Consents
-----------------
No consent, approval or waiver, express or implied, by either party hereto,
to or of any breath of default by the other party in the performance by the
other party of its obligations hereunder shall be deemed or construed to be a
consent or waiver to or of any other breach or default in the performance by
such party of the same or any other obligations of such other party or to
declare the other party in default, irrespective of how long such failure
continues, shall not constitute a general waiver by such party of its rights
under this Agreement, and the granting of any consent or approval in any one
instance by or on behalf of the Company shall not be construed to waiver or
limit the need for such consent in any other or subsequent instance.
6.2 Governing Law
--------------
This Agreement and all matters arising thereunder shall be governed by the
laws of the State of Delaware.
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6.3 Successors, etc.
-----------------
This Agreement shall enure to the benefit of and be binding upon each of
the parties hereto and their respective heirs, successors and permitted assigns.
6.4 Assignment
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This Agreement may not be assigned by any party except with the written
consent of the other party hereto.
6.5 Entire Agreement and Modification
------------------------------------
This Agreement constitutes the entire agreement between the parties hereto
and supersedes all prior agreements and undertakings, whether oral or written,
relative to the subject matter hereof. To be effective any modification of this
Agreement must be in writing and signed by the party to be charged thereby.
6.6 Headings
--------
The headings of the Sections and Articles of this Agreement are inserted
for convenience of reference only and shall not in any manner affect the
construction or meaning of anything herein contained or govern the rights or
liabilities of the parties hereto.
6.7 Notices
-------
All notices, requests and communications required or permitted hereunder
shall be in writing and shall be sufficiently given and deemed to have been
received upon personal deliver or, if mailed, upon the first to occur of actual
receipt or forty-eight (48) hours after being placed in the mail, postage
prepaid, registered or certified mail, return receipt requested, respectively
addressed to the Company or the Contractor as follows:
The Company:
Efinancial Xxxxx.xxx, Inc.
000-0000 Xxxxxxx Xxxx Xxxx
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
XXX
Attention: Xxxx Xxxxxx
The Contractor
Xxxxxxx Xxxxxxx
_________________________
_________________________
_________________________
Attention: ________________
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or such other address as may be specified in writing to the other party, but
notice of a change of address shall be effective only upon the actual receipt.
6.8 Time of the Essence
----------------------
Time is of the Essence
6.9 Further Assurances
-------------------
The parties hereto agree from time to time after the execution hereof to
make, do, execute or cause or permit to be made, done or executed all such
further and other lawful acts, deeds, things, devices and assurances in law
whatsoever as may be required to carry out the true intention and to give full
force and effect to this Agreement.
6.10 Counterparts
------------
This Agreement may be executed in several counter-parts, each of which will
be deemed to be an original and all of which will together constitute one and
the same instrument.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
day and year first above written.
EFINANCIAL XXXXX.XXX, INC.
Per: /s/ Xxxx Xxxxxx
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Authorized Signatory
/s/ Xxxxxxx Xxxxxxx
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XXXXXXX XXXXXXX
