EXHIBIT A
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement"), effective as of April 20,2001
between travelbyus, Inc. (the "Company"), a Texas corporation, and Xxxxxx Xxxxxx
(the "Consultant"). In consideration of and for the mutual promises and
covenants contained herein, and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties agree as follows:
1. Purpose. The Company hereby engages Consultant as an independent
consultant(and not as an agent, employee, partner or joint venturer) during the
term specified hereinafter to render consulting advice to the Company upon the
terms nd conditions as set forth herein.
2. Term. This Agreement commenced effective as of April 20, 2001 through
a period ending on July 19, 2001 (the "Term"), provided that the Company may
terminate this Agreement at any time for any reason upon 30 days' prior written
notice to the Consultant; provided further that the provisions of Sections 4 and
11-17 inclusive will survive termination of this Agreement.
3. Duties of Consultant.
(a) During the Term, Consultant will provide the Company with such
consulting advice as is reasonably requested by the Company with respect to
financial planning and the development of a business plan as is reasonably
requested by the Company. In performance of these duties, Consultant will
provide the Company with the benefits of its reasonable judgment and efforts.
Consultant's duties will include, but will not necessarily be limited to the
following:
(i) Advice concerning strategic issues, including alliance partnerships
and joint ventures;
(ii) Advice regarding the implementation of the Company's goals and
plans;
(iii) Advice regarding the existing and possible alternative financial
structures for the Company;
(iv) Advice concerning short and long range financial planning;
(v) Advice regarding the formulation of business and financing goals
and plans; and
(vi) Use of Consultant's reasonable best endeavors to comply with all
reasonable requests of the Company in relation to the performance
of the duties of the Consultant hereunder. (b)
(b) In connection with rendering its advice hereunder, Consultant and its
employees and agents will be given reasonable access to the Company's officers,
premises and records.
(c) The Company acknowledges that Consultant's advice pursuant hereto does
not and will not constitute any guarantee or other assurance as to the ability
of the Company to accomplish whether in whole or in part any specific goals or
plans of the Company.
(d) The Company acknowledges that Consultant retains the right to provide
consulting advice to other parties. Nothing herein contained will be construed
to limit or restrict
Consultant in conducting such business with respect to others, or in rendering
advice to others or conducting any other business. During the Term the
Consultant will not, however, provide consulting advice in favor of any other
parties engaged in the same business as the Company without prior written
consent of the Company, other than to affiliates of the Company.
4. Compensation. In consideration for Consultant agreeing to provide and
providing the consulting services to be rendered pursuant to this Agreement, the
Company agrees to pay Consultant $500,000 by tendering to Consultant 2,200,000
shares of common stock of the Company, subject to adjustment as hereinafter
provided (the "Shares"). The Shares will be issued to Consultant upon execution
of this Agreement. The Shares will be promptly registered for resale under the
Securities Act of 1933, as amended on Form S-8, but in no event later than two
weeks following the date hereof. If, at any time from the date hereof through
and including October 20, 2001, the Company shall issue any additional shares of
its common stock by reason of any warrantholder's exercise of any warrants or
any preferred shareholder's conversion of any shares of convertible preferred
stock, whether such warrants or shares of convertible preferred stock have
previously been or are hereafter issued by the Company("Dilutive Shares"), then
the Consultant shall receive from the Company such number of additional shares
of common stock of the Company ("Additional Shares") as would be required to
maintain his existing ownership percentage in the Company, determined in
accordance with the following equation (except that in no event shall more than
2,000,000 Additional Shares be issued to Consultant):
S = S + X
N N +D
Where: S = the 2,200,000 Shares issuable to Consultant upon the
execution of this Agreement. N = all of the issued and outstanding shares of
common stock of the Company as of the close of business on April 20, 2001
(including the 2,200,000 Shares issuable to Consultant upon the execution of
this Agreement). X = the Additional Shares. D = the Dilutive Shares.
5. Expenses. The Company will pay or promptly reimburse Consultant for the
out-of-pocket expenses, including expenses for travel, lodging, and meals, which
(a) are incurred by Consultant in connection with the performance of services
under this Agreement, (b) the Company either (i) authorizes in advance and
confirms in writing or (ii)subsequently determines, in its sole discretion, to
be reasonable under the circumstances, (c) are identified in an invoice
submitted to the Company, and (d) are supported by receipts for individual
expense items of Twenty-Five Dollars ($25) or more.
6. Proprietary Information. Consultant agrees that, except as appropriate
to carry out its duties under this Agreement or as required by law (in the
opinion of Consultant's counsel), it will not use or disclose, without the
Company's prior consent, any information furnished or disclosed (whether before
or after the date hereof) to Consultant by the Company or its employees, agents
or representatives, including without limitation any of the Company's trade
secrets or other proprietary information or information concerning the Company's
current and any future proposed operations, services or products; provided that
Consultant's obligations of nonuse and nondisclosure under this provision will
not be deemed to restrict the use and/or disclosure of information that (a) is
or becomes publicly known or within the public domain without a breach of this
agreement, (b) Consultant can establish was known to it prior to its
receipt thereof, or (c) has been or is subsequently disclosed to Consultant by a
third person who is not under an obligation of confidence to the Company or any
of its affiliates.
7. Representations and Warranties of the Company. The Company represents
and warrants to Consultant as follows: (a) The Company is a corporation duly
incorporated, validly existing, and in good standing under the laws of the State
of Texas and has all corporate power and authority, and all corporate
authorizations, necessary to enable it to enter into this Agreement and carry
out the transactions that are the subject of this Agreement. (b) This Agreement
is a valid and binding agreement of the Company, enforceable against the Company
in accordance with its terms. (c) When issued and registered as provided in this
Agreement, the Shares will be duly and validly issued, fully paid and
nonassessable, free and clear of any liens or encumbrances, and will be free of
restrictions on transfer except for such restrictions, if any, as may be imposed
under applicable securities laws. (d) When issued as provided in this Agreement,
the Shares will have been registered with the Securities and Exchange Commission
and qualified in the State of Texas under the Texas Corporate Securities Laws of
1968, as amended, or exempt from such qualification.
8. Representations and Warranties of the Company. The Consultant
represents and warrants to the Company that this Agreement is a valid and
binding agreement of the Consultant, enforceable against the Consultant in
accordance with its terms.
9. Assignment. This Agreement and the rights hereunder may not be assigned
by either party (except by operation of law) without prior written consent of
the other party, but, subject to the foregoing limitation, this Agreement will
be binding upon and inure to the benefit of the respective successors, assigns
and legal representatives of the parties.
10. Notices and Other Communications. Any notice or other communication
required or permitted to be given under this Agreement must be in writing and
will be deemed effective when delivered in person or transmitted by a facsimile
process (with a prompt written confirmation) or, if outside the hours of 9:00
a.m. to 5:00 p.m. on any business day in the jurisdiction of the addressee, will
be deemed to be given at 9:00 a.m. on the next business day, or on the third
business day after the day on which mailed from within the United States of
America, to the following addresses (or to any other address subsequently
specified by the person to whom the notice or other communication is sent):
If to the Consultant:
Xxxxxx Xxxxxx
c/o Fontenelle LLC
000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Facsimile Number: (000) 000-0000
If to the Company:
travelbyus, Inc.:
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxx
Facsimile Number: (000) 000-0000
With a copy (not constituting notice) to:
Xxxxx X. Xxxxxxx
Derpken Keevican & Xxxxx
USX Tower, 58th Floor
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Facsimile Number: (000) 000-0000
For the purposes of this Agreement, "business day" will refer to a day
in which trading banks are open for business.
11. Captions. The headings of the sections of this Agreement are intended
solely for convenience of reference and are not intended and will not be deemed
for any purpose whatever to modify or explain or place any construction upon any
of the provisions of this Agreement.
12. Attorneys' Fees. In the event any party hereto will institute an
action to enforce any rights hereunder, the prevailing party in such action will
be entitled, in addition to any other relief granted, to reasonable attorneys'
fees and costs.
13. Entire Agreement. This Agreement, constitutes the entire agreement
between the parties hereto pertaining to the consulting relationship of the
parties and supersede all prior and contemporaneous agreements and
understandings of the parties, and there are no representations, warranties or
other agreements between the parties in connection with the subject matter
hereof except as specifically set forth herein. No supplement, modification,
amendment, waiver or termination of this Agreement will be binding unless
executed in writing by the parties hereto. No waiver of any of the provisions of
this Agreement will be deemed or will constitute a waiver of any provision
hereof (whether or not similar), nor will waiver constitute a continuing waiver.
14. Indemnification by the Company and the Consultant. (a) Consultant
hereby agrees to indemnify and save the Company and hold the Company harmless in
respect of all causes of actions, liabilities, costs, charges and expenses, loss
and damage (including consequential loss) suffered or incurred by the Company
(including legal fees) arising from any negligent act or omission of the
Consultant or its employees, servants and agents and /or arising from any
material breach by Consultant or any of its employees, servants and agents of
any of the terms and conditions imposed on the Consultant pursuant to this
Agreement. (b) The Company hereby agrees to indemnify and save Consultant and
hold Consultant harmless in respect of all causes of actions, liabilities,
costs, charges and expenses, loss and damage (including consequential loss)
suffered or incurred by the Consultant (including legal fees) arising from any
willful or grossly negligent act or omission of the Company or its employees,
servants and agents and/or arising from material breach by the Company or any of
its employees, servants and agents of any of the terms and conditions imposed on
the Company pursuant to this Agreement. (c) No party will be liable to any other
party hereunder for any claim covered by insurance, except to the extent that
the liability of such party exceeds the amount of such
insurance coverage. Nothing in this clause (c) will be construed to reduce
insurance coverage to which any party may otherwise be entitled.
15. Severability. If any provision or portion of a provision of this
Agreement is held to be invalid, illegal or unenforceable under applicable law,
that provision or portion will be excluded from this Agreement, but only to the
extent of such prohibition or unenforceability, and the balance of the Agreement
will be interpreted as if that provision or portion were so excluded, and will
be enforceable in accordance with its terms.
16. Governing Law. This Agreement will be governed by, and construed
under, the laws of the State of California entered into and to be performed
entirely within California. Venue for any actions hall be in the appropriate
state or federal court within Los Angeles County.
17. Counterparts. This Agreement may be executed in counterparts. All of
such counterparts will constitute one and the same agreement. The Company and
Consultant agree that facsimile signatures of this Agreement will be deemed a
valid and binding execution of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement this day and
year first above written. Company:
travelbyus, Inc.,
a Texas corporation
By: /s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
Chief Executive Officer
Consultant:
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
