EXHIBIT 10.20
CONSULTING AGREEMENT
This consulting agreement is entered into as of the 1st day of April, 2004
("Consulting Agreement"), by and among Cirilium Holdings, Inc., a corporation
formed and existing under the laws of the State of Delaware and/or its
subsidiaries, successors, and assigns (hereinafter the "Company") and LeeWard
Enterprises CTI, Inc., ("Consultant"). For purposes of this Consulting
Agreement, the Company and Consultant shall be herein collectively referred to
as "Parties" and each individually as a "Party."
WHEREAS, The Company wishes to retain the Consultant as an independent
contractor, and Consultant wishes to be retained in such capacity and perform
certain services for the Consultant to promote the interests of the business of
the Consultant and the Company.
NOW THEREFORE, intending to be bound, the Parties hereto agree as follows:
1. Services Provided. Consultant, for the Term of this Consulting
Agreement, shall expend reasonable best efforts to assist the Company in
strategic developments, asset management, customer development, operations and
all aspects of the Company as directed by the Board of Directors (the
"Services"). Consultant agrees to devote reasonable time and efforts to
rendering the Services.
Consultant recognizes that determination of whether to accept Consultant's
efforts in effecting the Services or the results thereof made pursuant shall be
in the sole discretion of the Company, taking into account factors including,
without limitation, applicable law and costs of compliance, as well as
prevailing or anticipated business and market conditions.
2. Compensation. In consideration for the Services, Consultant shall
receive annual cash compensation equal to $90,000 payable in equal bi-monthly
payments beginning from the date of this Agreement.
Consultant shall maintain accurate written records of contacts made
pursuant to this Consulting Agreement, and agrees to give the Company copies of
such records upon request. This duty to maintain said records referenced in the
sentence immediately preceding and to provide such records upon request to the
Company shall survive the termination of this Consulting Agreement.
3. Indemnification. Except as provided below, the Parties shall indemnify
each other, their parents, affiliates, and subsidiaries, and each of their
directors, officers, employees, agents, representatives, investors, and Members
(collectively, the "Indemnified Parties"), and hold them harmless from and
against any and all claims, actions, damages, consequential damages, liabilities
and expenses (collectively, "Losses") occasioned by any act or omission of the
other Party, its parents, affiliates, and subsidiaries, and each of its
directors, officers, employees, agents, representatives investors, partners, or
Members, relating to the performance of its obligations hereunder, provided such
obligations arise after the execution of this
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Consulting Agreement. If the Indemnified Parties shall, without fault on their
part, be made party to any litigation concerning the Indemnified Party or the
Indemnified Party's performance hereof, or commenced by or against the
Indemnified Party, then the other Party shall protect and hold the Indemnified
Party harmless, and shall pay all costs, Losses, expenses, and reasonable
attorney's fees incurred or paid by the Indemnified Party in connection with
said litigation.
4. Warranties. Consultant hereby represents and warrants as follows:
(a) Consultant Bears Economic Risk. Consultant and its management have
substantial experience in evaluating and investing in private placement
transactions of securities in companies similar to Cirilium Holdings so that it
is capable of evaluating the merits and risks of its investment in and has the
capacity to protect its own interests. Consultant must bear the economic risk of
this investment indefinitely unless the Stock, are registered pursuant to the
Securities Act, or an exemption from registration is available. Consultant
understands that Cirilium Holdings has no present intention of registering the
Stock or any other securities. Consultant also understands that there is no
assurance that any exemption from registration under the Securities Act will be
available and that, even if available, such exemption may not allow Consultant
to transfer all or any portion of the Stock under the circumstances, in the
amounts, at the prices or at the times Consultant might propose.
(b) Acquisition for Own Account. Consultant is acquiring the Stock for
Consultant's own account for investment only, and not with a view towards any
distribution, and would not have been an "underwriter" (as that term is defined
in Section 2(a)(11) of the Securities Act) with respect to the original purchase
of the Stock if it had been a purchaser of such shares.
(c) Consultant Can Protect Its Interest. Consultant represents that by
reason of its management's, business or financial experience, Consultant has the
capacity to protect its own interests in connection with the transactions
contemplated in this Agreement. Furthermore, Consultant is aware of no
publication or of any advertisement in connection with the transactions
contemplated in the Agreement.
(d) Accredited Investor. Consultant represents that it is an "accredited
investor" within the meaning of Rule 501(a) of Regulation D under the Securities
Act.
(e) Company Information. Consultant has received and read the financial
statements and the Balance Sheet of the Company and has had an opportunity to
discuss the Company's business, management and financial affairs with the
Company and its directors, officers and management and has had the opportunity
to review the operations and facilities of the Company.
(f) Rule 144. Consultant acknowledges and agrees that the Stock, the
Warrants, and the Warrant Shares must be held indefinitely unless they are
subsequently registered under the Securities Act or an exemption from such
registration is available. Consultant has been advised or is aware of the
provisions of Rule 144 promulgated under the Securities Act as in effect from
time to time, which permits limited resale of securities of the Company
purchased in a private placement subject to the satisfaction of certain
conditions, including, among other things, the availability of certain current
public information about the Company, the resale
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occurring following the required holding period under Rule 144 and the number of
shares being sold during any three-month period not exceeding specified
limitations.
5. In addition to the indemnification provisions above, the Indemnified
Parties shall reimburse one another for any legal or other expenses reasonably
incurred by them in connection with investigating, preparing, or preparing to
defend or defending losses, lawsuits, claims, or other proceedings arising in
any manner out of or in connection with the rendering of services to the Company
hereunder, except for any losses or expenses arising out of a failure on the
part of Consultant to procure or maintain any necessary licenses or
qualifications necessary to perform services under this Consulting Agreement
6. The Indemnified Parties agree that the indemnification and reimbursement
commitments set forth in Sections 3, 5, and 6 in this Consulting Agreement shall
apply whether or not any Indemnified Party is a formal party to any such
lawsuit, claim, or other proceeding, and that each of the Indemnified Parties is
entitled to retain separate legal counsel of its choice in connection with any
of the matters to which such commitments relate and that such commitments shall
extend beyond the Term of this Consulting Agreement.
7. The Consultant agrees that it will be liable for any costs, fees and
expenses incurred under circumstances as outlined in Sections 3, 5, and 6 above,
including without limitation those arising from the indemnity provisions hereof,
even if the transactions contemplated hereby are not closed and irrespective of
any reasons.
8. The Consultant acknowledges and agrees that neitherthe Company nor any
of its employees, agents, representatives, officers, directors, parents,
subsidiaries, affiliates or associates shall be required to devote full time and
business efforts to assisting Consultant in his duties as specified in this
Consulting Agreement, but instead shall devote only such time and efforts as the
Company and its parents, subsidiaries, and affiliates may reasonably deem
necessary. The Consultant further acknowledges and agrees that the Company and
its parents and affiliates are engaged in the business of investing in,
acquiring and managing businesses for own accounts, and for the accounts of
unaffiliated parties, and understands that the Company intends to continue to be
engaged in such activities (and other business or investment activities)
throughout the Term of this Consulting Agreement. No aspect or element of such
activities and the activities of any parents or subsidiaries of the Company
shall be deemed to be engaged in for the benefit of the Consultant or constitute
a conflict of interest. Furthermore, notwithstanding anything herein to the
contrary, the Company and its Members, investors, parents, subsidiaries, and
affiliates shall be required to bring only such investments and business
opportunities to the attention of the Consultant asthe Company, and its
shareholders, investors, parents, subsidiaries, and affiliates, in their sole
discretion, deem appropriate.
9. The Company (including for purposes of this Section 9. any investor,
shareholder, parent, subsidiary, or affiliate of the Company, as well as any
person or entity acting for or on behalf ofthe Company) shall not be liable for
any mistakes of fact, errors of judgment, for business or other losses sustained
by the Consultant or for any acts or omissions of any kind (including acts or
omissions of the Company) unless caused by intentional misconduct, recklessness
or gross negligence by the Company.
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10. All information, knowledge and data relating to or concerned with the
operations, business and affairs of the Company (including for purposes of this
Section 10. any investor, Member, parent, subsidiary, or affiliate of the
Company) or the Consultant which are exchanged by the Parties hereto in
connection with the performance by the Company or Consultant of any duties
hereunder shall be the property of the Company or the Consultant, whichever is
the disclosing Party, and be treated as confidential information and shall be
held in a fiduciary capacity by the Parties hereunder.
11. All notices, demands, consents, approvals and requests given by either
Party to the other hereunder shall be in writing and shall be personally
delivered or sent by registered or certified mail, return receipt requested,
postage prepaid, to the parties at the following addresses:
If to the Cirilium Holdings, Inc.
Company:
000 X. Xxxxxxx Xxxxxx
Xxxx Xxxx Xxxxx, XX 00000
If to the
Consultant:
Any Party may at any time change its respective address by sending written
notice to the other Party of the change in the manner hereinabove prescribed.
12. The Consultant shall execute and issue all other documents as are
necessary or convenient to effect the purposes of the transactions herein
contemplated. Without limitation, it is contemplated by the parties hereto that
such documents may include securities offering documents; and in such event the
Consultant represents and warrants that all such documents shall be prepared in
compliance with all applicable securities laws.
13. It is understood and agreed by the parties that both Parties to this
Consulting Agreement are each independent contractors with respect to each
other, and not employees, agents, joint venture partners, or partners of the
other for any purposes whatsoever. The Company shall have no right to, and shall
not control the manner or prescribe the specific method by which the services
are performed by the Consultant.
14. This Consulting Agreement has been duly executed and delivered by the
Consultant and constitutes valid and binding obligations of the Parties,
enforceable against them according to the terms contained herein. The execution,
delivery and performance of the transactions contemplated by this Consulting
Agreement, and compliance with its provisions, will not violate any provision of
law, or constitute a default under, or require a consent or waiver under, the
Company's Articles of Incorporation or Bylaws (each as amended to date), or any
indenture, lease, agreement or other instrument to which the Company or
Consultant is a party,
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or which the Consultant, the Company, or any of either Party's property is
bound, or any decree, judgment, order, statute, rule, or regulation applicable
to the Company.
15. Except as the term "affiliate" is used in Section 2 (c) above, the
terms "parent", "subsidiary" and "affiliate", as used throughout this Consulting
Agreement, shall include all types of business organization, including without
limitation domestic and foreign limited liability companies, corporations,
investment trusts, and limited partnerships, and shall include those business
organizations which are or become affiliated with the Company at any time during
the Term of this Consulting Agreement. Furthermore with regard to the terms
"investor", "parent", "subsidiary" and "affiliate", the meaning of such terms
when used in the singular shall, where necessary to effect the broadest possible
reading of this Consulting Agreement, include the meaning of such term as if
used in the plural and vice versa. Throughout this Consulting Agreement, with
regard to conjunctions such as "and" and "or", the conjunctive term shall be
read to include the disjunctive term, and vice versa, as necessary to effect the
broadest reading of this Consulting Agreement.
16. This Consulting Agreement, and all rights and obligations hereunder,
shall be binding upon and inure to the benefit of each Party's heirs, executors,
representatives, successors and assigns.
17. The Parties agree that the laws of the State of Delaware, excepting
conflicts of laws provisions, shall govern any dispute in keeping with conflict
of laws or rules in any dispute; and the jurisdiction and venue shall be solely
in the Federal or State Courts of Palm Beach County, Florida.
18. Except as denoted herein, this Consulting Agreement is not intended for
the benefit of and should not be relied upon by any third parties and the
Company shall have no liability to any such party arising out of the terms of
performance of this Consulting Agreement.
19. This Consulting Agreement constitutes the entire agreement of the
parties with respect to the matters herein referred and supersedes all prior
agreements and understandings, written and oral, between the parties with
respect to the subject matter.
20. Neither this Consulting Agreement nor any term hereof may be changed,
modified, amended, waived or terminated orally, except by an instrument in
writing signed by the party against which enforcement of the change, waiver or
termination is sought.
21. Any determination by any court of competent jurisdiction that any
provision of this Consulting Agreement is invalid shall not affect the validity
of any other provision of this Consulting Agreement, which shall remain in full
force and effect and shall be construed as to be valid under applicable law.
22. Each party agrees to execute this Consulting Agreement and do all
things necessary to effectuate the purposes of this Consulting Agreement without
delay or limitation. The parties hereto agree that Consulting Agreement may be
executed by facsimile transmission.
23. Except as provided in this Consulting Agreement, this Consulting
Agreement shall continue in effect until the first anniversary of the Closing
Date, defined with reference to
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that certain Investment Agreement entered into by and between Consultant and the
Company ("Term"). Any payments, expenses, or additional fees due to any Party
must be paid within thirty (30) days of the date of termination. The
indemnification provisions as contained in Sections 3, 4, 5, 6, and 7 shall
continue in full force and effect after the termination of this Consulting
Agreement until such time as neither Party may accrue any legal liability for
any act or omission pursuant to this Consulting Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Consulting
Agreement to be executed by their respective officers thereunto duly authorized
as of the day and year first above written.
Cirilium Holdings, Inc., a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx DATE: April 1, 2004
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Xxxxxx X. Xxxxxx, its President
LeeWard Enterprises CTI, Inc.., a Florida corporation
By: /s/ Xxxxxx X. Xxxx DATE: April 5, 2004
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Xxxxxx X. Xxxx, its President
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