EXHIBIT 10.0
CONSULTING AGREEMENT
THIS AGREEMENT is entered into as of March 25, 2002 by XxxXxxXxxxxx.xxx, Inc., a
corporation organized and existing under the laws of the State of Delaware
having its principal place of business at 0000 Xxxx Xxxxxxx Xxxx Xxxx.,
Xxxxxxxxxx Xxxxx, XX 00000 ("Company") and Genesis Systems, Inc., a corporation
organized and existing under the laws of the State of Minnesota having its
principal place of business at 000 Xxxxxxxx Xx., Xxxxx 0000 Xxxx Xxxx Xxxxx, XX
00000 ("Consultant").
WITNESSETH:
In consideration of the premises and mutual covenants hereinafter contained, the
parties hereto agree as follows:
1. THE SERVICES
Consultant will provide operational and financial assistance in obtaining a
suitable merger candidate for Company to acquire and to facilitate
reorganization thereafter. Services will include, but are not limited to:
- Negotiating settlements and paying off all of the liabilities listed on
Company's accounts payable list (per attached schedule)
- Operational management of Company until a merger with a suitable candidate is
completed
- Financial management of Company until a merger with a suitable candidate is
completed, including filing of required reports for the SEC.
- Completing auditing and all filings necessary to bring Company from the "Pink
Sheets" to the OTC Bulletin Board
- Completing all Due Diligence and auditing of potential merger candidates
- Managing investor relations, including all communications with investors,
writing and distributing press releases, and all media contacts
- Being responsible for all legal and accounting fees that are associated with
the merger and reorganization.
Consultant agrees that they cannot obligate the Company in any way without the
sole approval of Xxxxxx Xxxxxxxxx, prior to successful merger. Company
acknowledges Consultant has been performing these services since January 1,
2002.
2. WORK FOR HIRE
It is the intention of the parties hereto that all rights, including without
limitation copyright in any reports, surveys, marketing promotional and
collateral materials prepared by the Consultant pursuant to the terms of this
Agreement, or otherwise for Company (hereinafter "the Work") vest in Company.
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The parties expressly acknowledge that the Work was specially ordered or
commissioned by Company, and further agree that it shall be considered a "Work
Made for Hire" within the meaning of the copyright laws of the United States and
that Company is entitled as author to the copyright and all other rights
therein, throughout the world, including, but not limited to, the right to make
such changes therein and such uses thereof, as it may determine in its sole and
absolute discretion.
3. PROPRIETARY INFORMATION
a. For purposes of this Agreement, "proprietary information" shall mean any
information relating to the business of Company or any entity in which Company
has a controlling interest and shall include (but shall not be limited to)
information encompassed in all drawings, designs, programs, plans, formulas,
proposals, marketing and sales plans, financial information, costs, pricing
information, customer information, and all methods, concepts or ideas in or
reasonably related to the business of Company.
b. Consultant agrees to regard and preserve as confidential, all proprietary
information, whether Consultant has such information in memory or in writing or
other physical form. Consultant shall not, without written authority from
Company to do so, directly or indirectly, use for the benefit or purposes, nor
disclose to others, either during the term of its engagement hereunder or
thereafter, except as required by the conditions of Consultant's engagement
hereunder, any proprietary information.
c. Consultant shall not disclose any reports, recommendations, conclusions or
other results of the Services or the existence or the subject matter of this
contract without the prior written consent of Company. In Consultant's
performance hereunder, Consultant shall comply with all legal obligations it may
now or hereafter have respecting the information or other property of any other
person, firm or corporation.
d. The Consultant expressly agrees that the covenants set forth in this
Paragraph are being given to Company in connection with the engagement of the
Consultant by Company and that such covenants are intended to protect Company
against the competition by the Consultant, within the terms stated, to the
fullest extent deemed reasonable and permitted in law and equity. In the event
that the foregoing limitations upon the conduct of the Consultant are beyond
those permitted by law, such limitations, both as to time and geographical area,
shall be, and be deemed to be, reduced in scope and effect to the maximum extent
permitted by law.
e. The foregoing obligations of this Paragraph shall not apply to any part of
the information that (i) has been disclosed in publicly available sources of
information, (ii) is, through no fault of the Consultant, hereafter disclosed in
publicly available sources of information, (iii) is now in the possession of
Consultant without any obligation or confidentiality, or (iv) has been or is
hereafter lawfully disclosed to Consultant by any third party, but only to the
extent that the use or disclosure there of has been or is rightfully authorized
by that third party.
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4. FEES AND REIMBURSEMENT OF CERTAIN EXPENSES
a. Company shall pay Consultant a consulting fee in the form of ten million
(10,000,000) restricted shares of Company's publicly traded stock.
b. In the event that a merger closing does not take place on or before June
30,2002, all shares will be returned the Company at its request.
5. WARRANTIES
Company warranties that all information presented to Consultant including that
on Company filings with the SEC are true, to the best of management's knowledge.
In the event that Consultant is unable to complete the services listed in
paragraph 1 as a result of any misinformation presented by Company, Company
agrees to reimburse Consultant for any and all payments and expenses incurred as
a result of such information.
6. BENEFITS
The Consultant, as an independent contractor, shall not be entitled to any other
benefits.
7. DUTY TO REPORT INCOME
The Consultant acknowledges and agrees that it is an independent contractor and
not an employee of the Company and that it is Consultant's sole obligation to
report as income all compensation received from Company pursuant to this
Agreement. The Consultant further agrees that the Company shall not be obligated
to pay withholding taxes, social security, unemployment taxes, disability
insurance premiums, or similar items, in connection with any payments made to
the Consultant pursuant to the terms of this Agreement.
8. TERM
This Agreement shall be effective beginning as January 1, 2002, and shall
continue until the 30th day of June 2002.
In the event that a merger closing does not take place on or before June
30,2002, all rights revert back to Company.
9. NOTICES
All notices and xxxxxxxx shall be in writing and sent via first class mail to
the respective addresses of the parties set forth at the beginning of this
Agreement or to such other address as any party may designate by notice
delivered hereunder to the other party.
10. GENERAL
a. The terms and conditions of Paragraphs 3, 4 and 6 hereof shall survive the
termination of this Agreement or completion of the Services as the case may be.
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b. Neither the Company nor Consultant shall assign this Agreement or delegate
its duties hereunder and shall not subcontract any of the Services to be
performed hereunder without the prior written consent of the other party hereto.
c. Consultant shall perform the Services as an independent contractor and shall
not be considered an employee of Company or Partner, joint venture or otherwise
related to Company for any purpose.
d. This Agreement shall be governed by the laws of the State of Florida.
e. This Agreement constitutes the entire understanding between Consultant and
Company respecting the Services described herein. The terms and conditions of
any purchase order shall have no effect upon this Agreement and shall be used
for accounting purposes only.
f. The failure of either party to exercise its rights under this Agreement shall
not be deemed to be a waiver of such rights or a waiver of any subsequent
breach.
g. Any delay or nonperformance of any provision of this Agreement caused by
conditions beyond the reasonable control of the performing party shall not
constitute a breach of this Agreement, provided that the delayed party has taken
reasonable measures to notify the other of the delay in writing. The delayed
party's time for performance shall be deemed to be extended for a period equal
to the duration of the conditions beyond its control. "Conditions beyond a
party's reasonable control" include, but are not limited to, natural disasters,
acts of government after the date of the Agreement, power failure, fire, flood,
acts of God, labor disputes, riots, acts of war and epidemics. Failure of
subcontractors and inability to obtain materials shall not be considered a
condition beyond a party's reasonable control.
h. Non-Solicitation of Consultant's Employees: Company agrees not to knowingly
hire or solicit Consultant's employees during performance of this Agreement and
for a period of two years after termination of this Agreement without
Consultant's written consent.
i. Mediation and Arbitration: If a dispute arises under this Agreement, the
parties agree to first try to resolve the dispute with the help of a mutually
agreed-upon mediator in Palm Beach County, Florida. Any costs and fees other
than attorney fees associated with the mediation shall be shared equally by the
parties. If the dispute is not resolved through mediation, the parties agree to
submit the dispute to binding arbitration in Nevada under the rules of the
American Arbitration Association. Judgment upon the award rendered by the
arbitrator may be entered in any court with jurisdiction to do so.
j. Attorney Fees: If any legal action is necessary to enforce this Agreement,
the prevailing party shall be entitled to reasonable attorney fees, costs and
expenses.
k. Complete Agreement: This Agreement together with all exhibits, appendices or
other attachments, which are incorporated herein by reference, is the sole and
entire Agreement between the parties. This Agreement supersedes all prior
understandings, agreements and documentation relating to such subject matter. In
the event of a conflict between the provisions of the main body of the Agreement
and any attached exhibits, appendices or other materials, the Agreement shall
take precedence. Modifications and amendments to this Agreement, including any
exhibit or appendix hereto, shall be enforceable only if they are in writing and
are signed by authorized representatives of both parties.
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l. Until otherwise specified in writing, the mailing addresses of Consultant
shall be that listed in the opening paragraph of this agreement and for Company
it shall be:
Attn: Xxxxxx Xxxxxxxxx
0000 Xxxx Xxxxxxx Xxxx Xxxx.
Xxxxxxxxxx Xxxxx, XX 00000
Tel.: 954-745-0077 ext. 109
Fax: 000-000-0000
Any notice or statement given under this Agreement shall be deemed to have been
given if sent by registered mail addressed to the other party at the address
indicated above or at such other address which shall have been furnished in
writing to the addressor.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the date first above written.
Consultant
Genesis Systems, Inc.
Xxxxx Xxxx Ph.D.
President
Signature: _______________________________
Company
The XxxXxxxxx.xxx, Inc.
Xxxxxx Xxxxxxxxx
President
Signature: _______________________________
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