EXHIBIT 10.13
CONSULTING AND MARKETING RIGHT AGREEMENT
THIS CONSULTING AND MARKETING RIGHT AGREEMENT (this "AGREEMENT") is between
Xxxx Xxxxxxx (the "CONSULTANT") and the other party named on the signature page
to this Agreement (the "COMPANY"). Each of the Consultant and the Company are
also referred to in this agreement as the "PARTIES."
WHEREAS, the Company is desirous of seeking a merger with a fully reporting
listed public company and the Consultant has relationships with such companies.
WHEREAS, the Company desires to utilize the services of the Consultant.
WHEREAS, in connection with the services to be provided by the Consultant
pursuant to this Agreement, the Company desires to grant the Consultant a
non-exclusive right to seek a potential merger candidate.
NOW THEREFORE, in consideration of the premises and mutual covenants set
forth in this Agreement, the Parties hereby agree as follows:
1. Scope of Services. The Company hereby retains the Consultant to seek
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a merger or acquisition. And to provide additional investment banking services
for the company. The Consultant agrees to use his best efforts during the term
of this Agreement.
2. Term. This Agreement shall become effective as of the date set forth
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on the signature page of this Agreement, and shall continue for a period of one
(1) year (the "TERM"). Notwithstanding the foregoing, the Company or the
Consultant shall be entitled to terminate this Agreement for "cause" upon 30
days' written notice, which written notice shall be effective upon mailing by
first class mail accompanied by facsimile transmission to the Consultant at the
address and telecopier number last provided by the Consultant to the Company.
"CAUSE" shall be determined solely as to the violation of any rule or regulation
of any regulatory agency, and other neglect, act or omission detrimental to the
conduct of Company or the Consultant's business, material breach of this
Agreement or any unauthorized disclosure of any of the secrets or confidential
information of Company, and dishonesty related to independent contractor status.
3. Grant of Non-exclusive Right. Subject to the terms of this Agreement,
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the Company hereby grants to the Consultant, and the Consultant hereby accepts,
the non-exclusive right to seek a merger candidate.
(a) During the Term of this Agreement the Consultant shall not
negotiate or enter into any right, sub-right agreement of sub-contract or
similar agreement with any third parties in respect of the right or
interest granted by the Company to the Consultant to such third parties
without the Company's prior written consent.
(b) No right is granted by the Company to the Consultant, either
expressly or by implication, under any rights owned or controlled by the
Company, except as expressly set forth in this Agreement.
(c) The rights granted pursuant to this Agreement shall expire
simultaneously with the Term of this Agreement, and shall be revocable at
will by the Company upon written notice to the Consultant, and the
Consultant shall immediately refrain from the use of any rights granted by
the Company to the Consultant with respect to this right upon receipt of
such written notice.
4. Compensation; Grant of Stock Option. In consideration for the
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services to be provided by the Consultant to the Company under the terms of this
Agreement, the Company agrees to grant to the Consultant upon the execution of
this Agreement a non-qualified stock option (the "OPTION") to purchase up to the
number of shares (the "SHARES") of the Company's common stock (the "COMMON
STOCK") as set forth below which shall fully vest immediately upon execution of
this Agreement, at an exercise price as set forth below:
Number of Shares or Total Dollar Amount: 200,000,000 shares
Exercise Price (in US$): $1,000.00
The terms of the Option shall otherwise be set forth in a Non-Qualified Stock
Option Agreement between the Company and the Consultant, substantially in the
form attached as Exhibit A to this Agreement. The Company agrees to register
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the Shares upon signing of this agreement for resale under the Securities Act of
1933, as amended, pursuant to a registration statement filed with the Securities
and Exchange Commission on Form S-8 (or, if Form S-8 is not then available, such
other form of registration statement available), pursuant to the terms of such
registration set forth in the Non-Qualified Stock Option Agreement.
5. Confidentiality. The Consultant covenants that all information
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concerning the Company, including proprietary information, which it obtains as a
result of the services rendered pursuant to this Agreement shall be kept
confidential and shall not be used by the Consultant except for the direct
benefit of the Company nor shall the confidential information be disclosed by
the Consultant to any third party without the prior written approval of the
Company, provided, however, that the Consultant shall not be obligated to treat
as confidential, or return to the Company copies of any confidential information
that (i) was publicly known at the time of disclosure to Consultant, (ii)
becomes publicly known or available thereafter other than by any means in
violation of this Agreement or any other duty owed to the Company by the
Consultant, or (iii) is lawfully disclosed to the Consultant by a third party.
6. Independent Contractor. The Consultant and the Company hereby
----------------------
acknowledge that the Consultant is an independent contractor. The Consultant
agrees not to hold himself out as, nor shall he take any action from which
others might reasonably infer that the Consultant is a partner or agent of, or a
joint venturer with the Company. In addition, the Consultant shall take no
action, which, to the knowledge of the Consultant, binds, or purports to bind,
the Company to any contract or agreement.
7. Miscellaneous.
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(a) Entire Agreement. This Agreement contains the entire agreement
----------------
between the Parties, and may not be waived, amended, modified or
supplemented except by agreement in writing signed by the Party against
whom enforcement of any waiver, amendment, modification or supplement is
sought. Waiver of or failure to exercise any rights provided by this
Agreement in any respect shall not be deemed a waiver of any further or
future rights.
(b) Governing Law. This Agreement shall be construed under the
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internal laws of the State of New York, and the Parties agree that the
exclusive jurisdiction for any litigation or arbitration arising from this
Agreement shall be in New York City, N.Y.
(c) Successors and Assigns. This Agreement shall be binding upon the
----------------------
Parties, their successors and assigns, provided, however, that the
Consultant shall not permit any other person or entity to assume these
obligations hereunder without the prior written approval of the Company
which approval shall not be unreasonably withheld and written notice of the
Company's position shall be given within ten (10) days after approval has
been requested.
(d) Indemnification. The Company shall indemnify the Consultant for
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all losses or damages sustained (including reasonable attorney fees and
disbursements) as incurred by the Consultant arising from the Consultant
performing services under this Agreement.
(e) Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but which when
taken together shall constitute one agreement.
(f) Severability. If one or more provisions of this Agreement are
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held to be unenforceable under applicable law, such provision(s) shall be
excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision were excluded and shall be enforceable in
accordance with its terms.
(Signature Page Follows)
IN WITNESS WHEREOF, the Parties hereto have executed or caused this
Agreement to be executed as of the date set forth below.
Date: CONSULTANT:
---------------------------------
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Xxxx Xxxxxxx
Address for Notices:
X.X. Xxx 0000
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Ketchum, Id.
----------------------------------------
83340
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COMPANY:
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By:
------------------------------------
Name:
Title:
EXHIBIT A
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FORM OF
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (this "AGREEMENT") is between
Xxxx Xxxxxxx (the "GRANTEE") and the other party named on the signature page to
this Agreement (the "COMPANY"). Each of the Grantee and the Company are also
referred to in this agreement as the "PARTIES."
WHEREAS, the Board of Directors of the Company (the "BOARD OF DIRECTORS")
has authorized the grant to the Grantee, for services to be rendered by the
Grantee as a consultant to the Company pursuant to the terms of a Consulting and
Agreement (the "CONSULTING AGREEMENT") between the Company and the Grantee, of a
non-qualified stock option (the "OPTION") to purchase the number of shares of
the Company's common stock (the "COMMON STOCK") specified in paragraph 1 of this
Agreement, at the price specified in paragraph 1 of this Agreement.
NOW THEREFORE, in consideration of the premises and mutual covenants set
forth in this Agreement, the Parties hereby agree as follows:
1. Number of Shares; Exercise Price. Pursuant to action taken by the
--------------------------------
Board of Directors, the Company hereby grants to the Grantee, in consideration
of consulting services to be performed for the benefit of the Company pursuant
to the Consulting Agreement, an option ("OPTION") to purchase the number of
common shares ("OPTION SHARES") of Common Stock set forth below, at the exercise
price set forth below:
Number of Shares or Total Dollar Amount: 200,000,000
Exercise Price (in US$): $1,000.00.
2. Term. The Option and this Agreement shall expire three (3) years from
----
the date of this Agreement.
3. Shares Subject To Exercise. The Option shall be immediately
--------------------------
exercisable and shall remain exercisable for the entire Term specified in
Paragraph 2 of this Agreement.
4. Method and Time of Exercise. The Option may be exercised in whole or
---------------------------
from time to time in part by written notice delivered to the Company stating the
number of Option Shares with respect to which the Option is then being
exercised, together with a check and/or a wire transfer made payable to the
Company in the amount equal to the Exercise Price multiplied by the number of
Option Shares then being issued pursuant to the written notice of exercise, plus
the amount of applicable federal, state and local withholding taxes, provided,
however, that such taxes may be satisfied by the withholding of Option Shares
then issuable upon the exercise of the Option pursuant to paragraph 5 of this
Agreement. Not less than one hundred (100) Option Shares may be purchased upon
exercise of the Option at any one time unless the number of Option Shares for
which exercise of the Option is being made is all of the Option Shares then
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issuable upon exercise of the Option. Options may be exercised at any time at
the sole discretion of the Grantee. Only whole shares shall be issued upon
exercise of the Option.
5. Tax Withholding. As a condition to exercise of the Option, the
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Company may require the Grantee to pay to the Company all applicable federal,
state and local taxes which the Company is required to withhold with respect to
the exercise of the Option. Or the Grantee is liable for filing and paying all
of his own taxes.
6. Exercise Following Termination of Consulting Agreement. The Option
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shall not terminate as a result of the termination of Grantee's services as a
consultant to the Company pursuant to the Consulting Agreement.
7. Transferability. The Option and this Agreement may not be assigned or
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transferred except by will or by the laws of descent and distribution, and with
consent of the Company.
8. Grantee Not a Shareholder. The Grantee shall have no rights as a
-------------------------
shareholder with respect to the Option Shares issued form time to time upon
exercise of the Option until the earlier of: (1) the date of issuance of a stock
certificate or stock certificates to the Grantee applicable to the Option Shares
then issuable to the Grantee upon exercise of the Option and (2) the date on
which the Grantee or his nominee is recorded as owner of such Option Shares on
the Company's stock ledger by the Company's registrar and transfer agent, which
may be the Company. Except as set forth in paragraph 13 of this Agreement, no
adjustment will be made for dividends or other rights for which the record date
is prior to the earlier of the events described in clauses (1) and (2) of this
paragraph.
9. Restrictions on Transfer. The Grantee represents and agrees that,
------------------------
upon the Grantee's exercise of the Option in whole or in part, unless there is
in effect at that time under the Securities Act of 1933 a registration statement
relating to the Option Shares, the Grantee will acquire the Option Shares for
the purpose of investment and not with a view to their resale or further
distribution, and that upon such exercise hereof, the Grantee will furnish to
the Company a written statement to such effect, satisfactory to the Company in
form and substance.
10. Shares Qualified for Listing. Company represents that its Common
----------------------------
Stock is qualified for trading or quotation on a nationally recognized
securities exchange or stock quotation system, including, without the NASDAQ
Bulletin Board, and for trading with the California Department of Corporations
or such other applicable jurisdictions.
11. Registration Rights. On or before the day of this Agreement, the
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Company shall, at the Company's expense, file with the Securities and Exchange
Commission ("SEC"), a registration statement ("REGISTRATION STATEMENT") on Form
S-8 or other comparable form, or if such form is not then available, such other
form of registration statement then available, in such form as to comply with
applicable federal and state laws for the purpose of registering or qualifying
the Option Shares for public resale by the Grantee, and prepare and file with
the appropriate state securities regulatory authorities the documents reasonably
necessary to register or qualify the Option Shares, subject to the ability of
the Company to register or qualify the Option Shares under applicable state law.
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12. Notices. All notices to the Company shall be addressed to the Company
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at the principal office of the Company at the address and facsimile number set
forth on the signature page of this Agreement, and all notices to the Grantee
shall be addressed to the Grantee at the address and facsimile number of the
Grantee set forth on the signature page of this Agreement or, if different, the
last address and facsimile number on file with the Company, or to such other
address and facsimile number as either may designate to the other in writing. A
notice shall be deemed to be duly given if and when enclosed in a properly
addressed sealed envelope deposited, postage prepaid and followed by facsimile
to the addressee. In lieu of giving notice by mail as aforesaid, written
notices under this Agreement may be given by personal delivery to the Grantee or
to the Company (as the case may be) by nationally recognized courier or
overnight delivery service.
13. Adjustments. If there is any change in the capitalization of the
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Company after the date of this Agreement affecting in any manner the number of
kind of outstanding shares of Common Stock of the Company, whether by stock
dividend, stock split, reclassification or recapitalization of such stock, or
because the Company has merged or consolidated with one or more other
corporations (and provided the Option does not thereby terminate pursuant to
paragraph 14 of this Agreement), then the number and kind of shares then subject
to the Option and the exercise price to be paid for the Option Shares shall be
appropriately adjusted by the Board of Directors; provided however, that in no
event shall any such adjustment result in the Company being required to sell or
issue any fractional shares. Any such adjustment shall be made without change
in the aggregate exercise price applicable to the unexercised portion of the
Option, but with an appropriate adjustment to the exercise price of each Option
Share or other unit of security then covered by the Option and this Agreement.
14. Cessation of Corporate Existence. Notwithstanding any other provision
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of this Agreement, in the event of the reorganization, merger or consolidation
of the Company with one or more corporations as a result of which the Company is
not the surviving corporation, or the sale of substantially all the assets of
the Company or of more than fifty percent (50%) of the then outstanding stock of
the Company to another corporation or other entity in a single transaction, the
Option grated hereunder shall terminate, provided however, that not later than
five (5) days before the effective date of such merger or consolidation or sale
of assets in which the Company is not the surviving corporation, the surviving
corporation may, but shall not be so obligated to, tender to the Grantee an
option to purchase a number of shares of capital stock of the surviving
corporation equal to the number of Option Shares then issuable upon exercise of
the Option, and such new option or options for shares of the surviving
corporation shall contain such terms, conditions and provisions as shall be
required substantially to preserve the rights and benefits of the Option and
this Agreement.
(a) Entire Agreement. This Agreement and the Consulting Agreement contain
----------------
the entire agreement between the Parties, and may not be waived,
amended, modified or supplemented except by agreement in writing
signed by the Party against whom enforcement of any waiver, amendment,
modification or supplement is sought. Waiver of or failure to exercise
any rights provided by this Agreement and the Consulting Agreement in
any respect shall not be deemed a waiver of any further or future
rights.
A-3
15. Miscellaneous.
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(b) Governing Law. This Agreement shall be construed under the
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internal laws of the State of New York, and the Parties agree that the
exclusive jurisdiction for any litigation or arbitration arising from this
Agreement shall be in New York City, N.Y.
(c) Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but which when
taken together shall constitute one agreement.
(d) Severability. If one or more provisions of this Agreement are
------------
held to be unenforceable under applicable law, such provision(s) shall be
excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision were excluded and shall be enforceable in
accordance with its terms.
(Signature Page Follows)
A-4
IN WITNESS WHEREOF the Parties hereto have executed this Agreement as of the
date set forth below.
Date: OPTIONEE:
---------------------------------
----------------------------------------
Xxxx Xxxxxxx
Address for Notices:
X.X. Xxx 0000
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Xxxxxxx, Id.
------------
83340
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COMPANY:
----------------------------------------
By:
------------------------------------
Name:
Title:
EXHIBIT B
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OPTION EXERCISE SCHEDULE
$1,000.00 immediately upon registration and delivery of shares
IN WITNESS WHEREOF the Parties hereto have executed this Agreement as of the
date set forth below.
Date: OPTIONEE:
---------------------------------
----------------------------------------
Xxxx Xxxxxxx
Address for Notices:
X.X. Xxx 0000
Xxxxxxx, Xx.
00000
COMPANY:
----------------------------------------
By:
------------------------------------
Name:
Title:
A-5
NEW EXHIBITS -
1.
AGREEMENT BETWEEN GATEWAY D.B.A. THE RIGHT SOLUTION
AND
AMERICAN FIRE RETARDANT CORP
WHEREAS, this agreement (the "Agreement") is made as of May 15, 2003 by and
between American Fire Retardant Corp., (the "Client") a Nevada corporation,
located at 0000 Xxx Xxxxxx, Xx Xxxxx, XX 00000 (hereinafter referred to as
"Client") and Gateway d.b.a. The Right Solution, a Nevada corporation located at
0000 Xxxxxxx Xxxx, Xxxxx 00, xxx Xxx Xxxxx (the "Company") and their assignees,
nominees, heirs and assigns.
WHEREAS COMPANY renders professional sales and marketing and the related
administrative support services to their business clientele, have certain
knowledge, expertise, information, contacts and associations with persons and
entities who might be interested in providing distribution, sales and
merchandising opportunities and/or providing other business and revenue
generating opportunities, and desire to act as consultants to provide such
services.
WHEREAS COMPANY occupies its own facilities and has warehousing and
distribution capacity.
WHEREAS Client desires to engage the services of COMPANY to perform, (by
and through their associates, agents, employees, and associated entities,) some
or all of the herein-described services on behalf of Client. COMPANY and Client
agree that COMPANY will provide such services upon the terms and conditions
herein below provided.
NOW, THEREFORE, with mutual acknowledgement of the receipt of sufficient
consideration, the parties, intending to be legally bound hereby, agree as
follows:
I. SERVICES
Client hereby engages COMPANY, and COMPANY agrees to use their reasonable
best efforts to provide some or all of the herein-referenced services on behalf
of Client and/or any associated entities in connection with any of Client or its
associated entity's Product(s).
Distribution of Client products to include warehousing and shipping of
products. Telemarketing and Sales services to be determined.
II. COMPENSATION TO COMPANY
A. Distribution fee to be determined and agreed to by COMPANY and
Client based on a unit cost and/or shipment cost.
A-6
B. Percentage of sales for providing sales and/or telemarketing
services to be determined and agree to by COMPANY and Client.
C. Payments to COMPANY will be made on a weekly basis. Client will
pay for startup fees associated with services provided but have the
right to approve expenses prior to expenditures.
III. COMPANY'S REPRESENTATIONS AND WARRANTIES
A. COMPANY and Client represent and warrant that they are validly
formed and in good standing as a corporation, organized in accordance
with the applicable federal, state, municipal and local laws,
regulations, orders, rulings and decrees within its place of domicile.
B. Client represents and warrants that it has the requisite
financial resources to meet all of its financial obligations to
COMPANY.
IV. CLIENT OBLIGATIONS
A. CLIENT shall provide COMPANY with true, complete and accurate
information regarding its Product(s). Such information shall also
include sufficient relevant, current and historical business,
financial, and other information necessary for the proper performance
of COMPANY services hereunder. In performing their services hereunder,
COMPANY shall have the right to rely on, utilize and present such
information to potential customers without independent verification
thereof. CLIENT shall cooperate and support COMPANY attempts to
accomplish their objectives under this Agreement, and shall take such
actions and execute such additional instruments as may be reasonably
necessary to implement and carry out the intent and purpose of this
Agreement.
B. Client will have the right to approve any bulk sales and will
establish pricing of all products.
V. INDEMNIFICATION AND ACCOUNTING
A. The Parties agree to indemnify, hold harmless, and defend each
other, their members, officers, shareholders, directors, agents and
employees, at the culpable party's expense for any claim arising out
of any proceeding or suit which may arise out of an alleged breach of
contract or claim of misrepresentation, inaccuracy or incompleteness,
in whatever form, resulting from documentation and/or information
provided in furtherance of this agreement.
A-7
B. COMPANY and Client will provide each other a full and complete
accountings of all revenues received as a result of any Transactions
under this Agreement, (hereinafter referred to as "Accountings").
VI. CONFIDENTIALITY
A. The Company and Client each agree to provide reasonable security
measures to keep information confidential where disclosure to third
parties may be detrimental to the parties. They shall each use their
best efforts to require their principals, employees, agents,
affiliates, subcontractors, and others who will have access to the
information to abide by the confidentiality contemplated by this
Agreement.
B. Except to accomplish the purposes of this Agreement, no party
will disclose, use, or make known, for its or a third party's benefit,
any confidential information, knowledge, or data of any other party,
or any confidential source(s) of any other party, during the term of
this Agreement. Confidential information, knowledge, data, and
confidential sources shall not include any information that is, or
becomes (1) generally known or available by publication or commercial
use, or (2) is known and can be documented to be known by the
recipient party at the time of disclosure and is not subject to
restriction, or (3) is received by the recipient party from a third
party not under any legal obligation to the disclosing party to
maintain such information in confidence.
C. In the event this provision is deemed in any court proceeding too
restrictive to be enforceable, such restriction shall be deemed
reduced to the maximum extent allowable by the court to be found
enforceable.
D. It is expressly agreed by all parties that any limitations herein
relating to the use of the Proprietary Information of the Products
shall be fully enforceable and binding for a period of three (3) years
subsequent to the expiration of the last Transaction under this
Agreement.
VII. MISCELLANEOUS PROVISIONS
A. Modifications. This Agreement may be amended, modified and
supplemented only by written agreement of Client and COMPANY.
B. Waiver of Compliance. Any failure of any party to comply with any
obligation, agreement, or condition herein may be expressly waived in
writing, but such waiver or failure to insist upon strict compliance
with such obligation, covenant, agreement or condition shall not
operate as a waiver or estoppel with respect to, any subsequent or
other failure.
A-8
C. Other Business Opportunities. Each party hereto shall have the
right independently to engage in and receive full benefits from other
business activities as long as the other party is notified in writing
and they are allowed first right of refusal.
D. Publication of Relationship. The parties shall have the right to
publish and/or otherwise disclose in any published announcements,
publicity campaigns, press releases, media, websites, and other
appropriate venues the fact that the Transaction(s) closed hereunder
as long as both parties agree.
E. Notices. Any notices to be given hereunder by any party to any
other may be effected by personal delivery in writing or by mail,
registered or certified, postage prepaid. Notice may also be given
hereunder by electronic transmission (i.e. facsimile and "e-mail,")
provided such electronic transmission is recognized and accepted by
the court in any legal proceeding. Mailed notices shall be addressed
to the addresses supplied by the parties, but any party may change
their address by written notice in accordance with this subsection.
Notices delivered personally and/or by electronic transmission shall
be deemed communicated as of actual receipt; mailed notices shall be
deemed communicated as of five (5) days after mailing.
F. Assignment and Delegation. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted
assigns. No party shall delegate the performance of its duties or
obligations under this Agreement without the prior written consent of
the other parties, except by operation of law.
G. Governing Law. This Agreement and the legal relations between the
parties hereto shall be governed by and construed in accordance with
the laws of the United States, State of Nevada, without regard to
theirs conflict of law doctrine. If any action is instituted to
enforce or interpret any provision of this Agreement, the jurisdiction
and venue shall be in Nevada.
H. Facsimile and Counterparts. This Agreement may be executed by
facsimile, and may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
I. Arbitration, Legal Action and Attorneys' Fees and Costs. If any
legal action arises from this agreement, the parties agree to attempt
resolution first with non-binding arbitration without relinquishing
their legal rights. In any legal action, the prevailing party(s) shall
be entitled to reasonable attorneys' fees and costs in accordance with
the law. This provision shall be construed as applicable to the entire
Agreement.
A-9
J. Survivability. If any part of this Agreement is deemed by a
court of competent jurisdiction to be invalid or unenforceable, that
part shall be severable from the remainder of the Agreement. In the
event that any provision hereof shall be legally unenforceable, the
remaining provisions shall nevertheless be carried into effect.
K. Relationship of the Parties. The parties to this Agreement have
no relationship with each other beyond the relationship expressly
provided for herein. Nothing contained in this Agreement shall be
deemed to create any additional relationships, (i.e. cause any party
to become the partner, agent or legal representative of each other,
nor create any fiduciary relationship between them). Neither party
shall have any authority to act for or to assume any obligation or
responsibility on behalf of any other party, except as otherwise
expressly provided herein.
L. Term of Agreement and Termination. This Agreement shall be
effective upon execution. With respect to any Closed Transaction this
Agreement shall remain in full force and effect.
M. With respect to any prospective Financing, this Agreement may be
terminated prior to the Closing of a pending Transaction "for cause"
at the election of the injured party upon the occurrence of any of the
following events: material misrepresentation or material breach under
this Agreement, (hereinafter individually and collectively referred to
as "Cause"). In such event, the injured party shall give the other
party, in writing, thirty (30) days in which to "cure" the Cause.
Compensation to which COMPANY is entitled shall survive the
termination of this Agreement.
N. Entire Agreement. This Agreement sets forth the entire Agreement
and understanding of the parties hereto in respect to the subject
matter contained herein, and supersedes all prior agreements,
promises, covenants, arrangements, communications, representations or
warranties, whether oral or written, by any party hereto in regard to
the subject matter contained herein.
IN WITNESS WHEREOF, the parties hereto asserting that they have read,
understand and agree to all terms herein, have the authority to execute this
Agreement on behalf of their principal, and have caused this Agreement to be
executed by their duly authorized representatives.
___________________________________________
Xxxx Xxxxxx, President / CEO
COMPANY _______________________________
Date _____________________________________
A-10
_________________________________________________
Xxxxxxx X. Xxxxx Chief Operating Officer/Director
COMPANY _______________________________
Date __________________________________
NEW EXHIBITS -
2.
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made effective as of July
07, 2003, by and between Gateway Distributors ("Gateway"), of 0000 X. Xxxxxxx
Xx., Xxx Xxxxx, Xxxxxx, 00000 and Xxxxxx Xxxxxxxxx ("Xxxxxx"), of 0000
Xxxxxxxxxx Xxxx Xx., Xxxxxxxx, Xxxxxxxxx, 00000.
A. Gateway is engaged in the business of Vitamin and Supplement
Distribution. Xxxxxx will primarily perform the job duties at the
following location: 0000 X. Xxxxxxx Xx., Xxx Xxxxx, Xxxxxx.
B. Gateway desires to have the services of Xxxxxx.
X. Xxxxxx is willing to be employed by Gateway.
Therefore, the parties agree as follows:
1. EMPLOYMENT. Gateway shall employ Xxxxxx as a(n) Account Executive.
Xxxxxx shall provide to Gateway the following services: To promote and sell
products provided by Gateway Distributors and/or the Right Solution. Xxxxxx
accepts and agrees to such employment, and agrees to be subject to the
general supervision, advice and direction of Gateway and Gateway's
supervisory personnel. Xxxxxx shall also perform (i) such other duties as
are customarily performed by an employee in a similar position, and (ii)
such other unrelated services and duties as may be assigned to Xxxxxx from
time to time by Gateway.
2. BEST EFFORTS OF EMPLOYEE. Xxxxxx agrees to perform faithfully,
industriously, and to the best of Blaine's ability, experience, and
talents, all of the duties that may be required by the express and implicit
terms of this Agreement, to the reasonable satisfaction of Gateway. Such
duties shall be provided at such place(s) as the needs, business, or
opportunities of Gateway may require from time to time.
3. COMMISSION PAYMENTS. Gateway will make commission payments to Xxxxxx
based on 15% of Net Profit on total sales of company (Sale price minus Cost
of Goods).
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This commission will be paid semi-monthly on the tenth day and the
twenty-fifth day of the month, each payment corresponding to the
semi-monthly period that ended approximately fifteen days prior to the
payment date.
1. Accounting. Gateway shall maintain records in sufficient detail for
purposed of determining the amount of the commission. Gateway shall
provide to Xxxxxx a written accounting that sets forth the manner in
which the commission payment was calculated.
2. Right to Inspect. Xxxxxx, or Xxxxxx'x agent, shall have the right to
inspect Gateway's records for the limited purpose of verifying the
calculation of the commission payments, subject to such restrictions
as Gateway may reasonably impose to protect the confidentiality of the
records. Such inspections shall be made during reasonable hours as may
be set by Gateway.
3. Death of the Employee. If Xxxxxx dies during the term of this
Agreement, Xxxxxx shall be entitled to payments or partial commission
payments for the period ending with the date of Blaine's death.
1. EXPENSE REIMBURSEMENT. Gateway will reimburse Xxxxxx for
"out-of-pocket" expenses incurred by Xxxxxx in accordance with Gateway's
policies in effect from time to time.
2. RECOMMENDATIONS FOR IMPROVING OPERATIONS. Xxxxxx shall provide
Gateway with all information, suggestions, and recommendations regarding
Gateway's business, of which Xxxxxx has knowledge, that will be of benefit
to Gateway.
3. CONFIDENTIALITY. Xxxxxx recognizes that Gateway has and will have
information regarding the following:
_ inventions
_ products
_ product design
_ processes
_ technical matters
_ trade secrets
_ copyrights
_ customer lists
_ prices
_ costs
_ discounts
_ business affairs
_ future plans
_ issues related to the sale of Company Stock
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and other vital information items (collectively, "Information") which are
valuable, special and unique assets of Gateway. Xxxxxx agrees that Xxxxxx
will not at any time or in any manner, either directly or indirectly,
divulge, disclose, or communicate any Information to any third party
without the prior written consent of Gateway, Xxxxxx will protect the
Information and treat it s strictly confidential. A violation by Xxxxxx of
this paragraph shall be a material violation of this Agreement and will
justify legal and/or equitable relief.
5. CONFIDENTIALITY AFTER TERMINATION OF EMPLOYMENT. The confidentiality
provisions of this Agreement shall remain in full force and effect for a
90-day period after the termination of Blaine's employment. During such
90-day period, neither party shall make pr permit the making of any public
announcement or statement of any kind that Xxxxxx was formerly employed by
or connected with Gateway.
6. EMPLOYEE'S INABILITY TO CONTRACT FOR EMPLOYER. Xxxxxx shall not have
the right to make any contracts or commitments for or on behalf of Gateway
without first obtaining the express written consent of Gateway.
7. BENEFITS. Xxxxxx shall be entitled the employment benefits, including
disability insurance as provided by Gateway's policies in effect from time
to time.
8. TERM/TERMINATION. Blaine's employment under this Agreement shall be
for an unspecified term on an "at will" basis. This Agreement may be
terminated by Gateway upon 30 days written notice, and by Xxxxxx upon 30
days written notice. If Gateway shall so terminate this Agreement, Xxxxxx
shall be entitled to compensation for 30 days beyond the termination date
of such termination, unless Xxxxxx is in violation of this Agreement. If
Xxxxxx is in violation of this Agreement, Gateway may terminate employment
without notice and with compensation to Xxxxxx only to the date of such
terminations. The compensation paid under this Agreement shall be Blaine's
exclusive remedy.
9. TERMINATION FOR DISABILITY. Gateway shall have the option to
terminate this Agreement, if Xxxxxx becomes permanently disabled and is no
longer able to perform the essential functions of the position with
reasonable accommodation. Gateway shall exercise this option by giving 30
days written notice to Xxxxxx.
10. COMPLIANCE WITH EMPLOYER'S RULES. Xxxxxx agrees to comply with all
of the rules and regulations of Gateway.
11. RETURN OF PROPERTY. Upon termination of this Agreement, Xxxxxx shall
deliver to Gateway all property which is Gateway's property or related to
Gateway's business (including keys, records, notes, data, memoranda,
models, and equipment) that is in Blaine's possession or under Blaine's
control. Such obligation shall be governed by any separate confidentiality
or proprietary rights agreement signed by Xxxxxx.
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12. NOTICES. All notices required or permitted under this Agreement
shall be in writing and shall be deemed delivered when delivered in person
or on the third day after being deposited in the United States mail,
postage paid, address as follows:
Employer:
Gateway Distributors
Xxx Xxxxxx
C.O.O.
0000 X. Xxxxxxx Xxxx
Xxx Xxxxx, Xxxxxx 00000
Employee:
Xxxxxx Xxxxxxxxx
0000 Xxxxxxxxxx Xxxx Xxxx
Xxxxxxxx, Xxxxxxxxx 00000
Such addresses may be changed from time to time by either party by providing
written notice in the manner set forth above.
13. ENTIRE AGREEMENT. This agreement contains the entire agreement of
the parties and there are no other promises or conditions in any other
agreement whether oral or written. This Agreement supersedes any prior
written or oral agreements between the parties.
14. AMENDMENT. This Agreement may be modified or amended, if the
amendment is made in writing and is signed by both parties.
15. SEVERABILITY. If any provision of this Agreement shall be held to be
invalid or enforceable for any reason, the remaining provisions shall
continue to be valid and enforceable. If a court finds that any provisions
for this Agreement is invalid or unenforceable, but that by limiting such
provision it would become valid or enforceable, then such provision shall
be deemed to be written, construed, and enforced as so limited.
16. WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce
any provision of the Agreement shall not be construed as a waiver or
limitation of that party's right to subsequently enforcer and compel strict
compliance with every provision of this Agreement.
17. APPLICABLE LAW. This Agreement shall be governed by the laws of the
State of Nevada.
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NEW EXHIBITS -
3.
PROMISSORY NOTE
$17,500.00 Date: July 03, 2003
For value received, the undersigned Grandma Xxxxxx'x (the "Borrower"), at
0000 X. Xxxxxxx Xxxx, Xxx Xxxxx, Xxxxxx, 00000, promises to pay to the order of
Xx Xxxxxxxxx, (the "Lender"), at 0000 Xxxxxxxxxx Xxxx Xxxx, Xxxxxxxx, Xxxxxxxxx
00000, (or at such other place as the Lender may designate in writing) the sum
of $17,500.00 with interest from August 01, 2003, on the unpaid principal at the
rate of 24.00% per annum.
The unpaid principal and accrued interest shall be payable in monthly
installments of $925.24, beginning on September 01, 2003, and continuing until
August 01, 2005, (the "Due Date"), at which time the remaining unpaid principal
and interest shall be due in full.
All payments on this Note shall be applied first in payment of accrued
interest and any remainder in payment of principal.
The Borrower promises to pay a late charge of $87.00 for each installment
that remains unpaid more than 10 day(s) after its Due Date. This late charge
shall be paid as liquidated damages in lieu of actual damages, and not as a
penalty.
If any payment obligation under this Note is not paid when due, the
remaining unpaid principal balance and any accrued interest shall become due
immediately at the option of the Lender.
The Borrower reserves the right to prepay this Note (in whole or in part)
prior to the Due Date with no prepayment penalty.
If any payment obligation under this Note is not paid when due, the
Borrower promises to pay all costs of collection, including reasonable attorney
fees, whether or not a lawsuit is commenced as part of the collection process.
This Note is secured by a Merchant Account currently used by Grandma
Xxxxxx'x Specialty Foods, dated July 03, 2003. The Lender is not required to
rely on the above security instrument and the assets secured therein for the
payment of this Note in the case of default, but may proceed directly against
the Borrower.
If any of the following events of default occur, this Note and any other
obligations of the Borrower to the Lender, shall become due immediately, without
demand or notice:
E. the failure of the Borrower to pay the principal and any accrued
interest in full on or before the Due Date;
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F. the death of the Borrower or Lender;
G. the filing of bankruptcy proceedings involving the Borrower as a
debtor;
H. the application for the appointment of a receiver for the
Borrower;
I. the making of a general assignment for the benefit of the
Borrower's creditors;
J. the insolvency of the Borrower;
K. a misrepresentation by the Borrower to the Lender for the purpose
of obtaining or extending credit.
In addition, the Borrower shall be in default if there is a sale, transfer,
assignment, or any other disposition of any assets pledged as security for the
payment of this Note, or if there is default in any security agreement which
secures this Note.
If any one or more of the provisions of this Note are determined to be
unenforceable, in whole or in part, for any reason, the remaining provisions
shall remain fully operative.
All payments of principal and interest on this Note shall be paid in the
legal currency of the United States. The Borrower waives presentment for
payment, protest, and notice of protest and nonpayment of this Note.
No renewal or extension of this Note, delay in enforcing any right of the
Lender under this Note, or assignment by Lender of this Note shall affect the
liability or the obligations of the Borrower. All rights of the Lender under
this Note are cumulative and may be exercised concurrently or consecutively at
the Lender's option.
This Note shall be construed in accordance with the laws of the state of
Nevada.
Borrower:
Grandma Xxxxxx'x Specialty Foods
By: __________________________________
Xxxx Xxxxxx
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NEW EXHIBITS -
4.
PROMISSORY NOTE
$200,000.00 Date: July 03, 2003
For value received, the undersigned Gateway Distributors (the "Borrower"),
at 0000 X. Xxxxxxx Xxxx, Xxx Xxxxx, Xxxxxx, 00000, promises to pay to the order
of Los Cabos Freedom Movement L.L.C. (the "Lender"), at X.X. Xxx 000, Xxxxxxx,
Xxxxxxxxx 00000, (or at such other place as the Lender may designate in writing)
the sum of $200,000.00 with interest from August 01, 2003, on the unpaid
principal at the rate of 8.00% per annum.
Unpaid principal after the Due Date shown below shall accrue interest at a
rate of 12.00% annually until paid.
The unpaid principal and accrued interest shall be payable in monthly
installments of $1,672.88, beginning on September 01, 2003, and continuing until
August 01, 2023, (the "Due Date"), at which time the remaining unpaid principal
and interest shall be due in full.
All payments on this Note shall be applied first in payment of accrued
interest and any remainder in payment of principal.
The Borrower promises to pay a late charge of $100.00 for each installment
that remains unpaid more than 30 day(s) after its Due Date. This late charge
shall be paid as liquidated damages in lieu of actual damages, and not as a
penalty.
If any payment obligation under this Note is not paid when due, the
remaining unpaid principal balance and any accrued interest shall become due
immediately at the option of the Lender.
The Borrower reserves the right to prepay this Note (in whole or in part)
prior to the Due Date with no prepayment penalty.
If any payment obligation under this Note is not paid when due, the
Borrower promises to pay all costs of collection, including reasonable attorney
fees, whether or not a lawsuit is commenced as part of the collection process.
This Note is secured by a All assets, inventory, accounts receivable and
equipment of Grandma Xxxxxx'x Specialty Foods, dated July 03, 2003. The Lender
is not required to rely on the above security instrument and the assets secured
therein for the payment of this Note in the case of default, but may proceed
directly against the Borrower.
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If any of the following events of default occur, this Note and any other
obligations of the Borrower to the Lender, shall become due immediately, without
demand or notice:
E. the failure of the Borrower to pay the principal and any accrued
interest in full on or before the Due Date;
F. the death of the Borrower or Lender;
G. the filing of bankruptcy proceedings involving the Borrower as a
debtor;
H. the application for the appointment of a receiver for the
Borrower;
I. the making of a general assignment for the benefit of the
Borrower's creditors;
J. the insolvency of the Borrower;
K. a misrepresentation by the Borrower to the Lender for the purpose
of obtaining or extending credit.
In addition, the Borrower shall be in default if there is a sale, transfer,
assignment, or any other disposition of any assets pledged as security for the
payment of this Note, or if there is default in any security agreement which
secures this Note.
If any one or more of the provisions of this Note are determined to be
unenforceable, in whole or in part, for any reason, the remaining provisions
shall remain fully operative.
All payments of principal and interest on this Note shall be paid in the
legal currency of the United States. The Borrower waives presentment for
payment, protest, and notice of protest and nonpayment of this Note.
No renewal or extension of this Note, delay in enforcing any right of the
Lender under this Note, or assignment by Lender of this Note shall affect the
liability or the obligations of the Borrower. All rights of the Lender under
this Note are cumulative and may be exercised concurrently or consecutively at
the Lender's option.
This Note shall be construed in accordance with the laws of the state of
Nevada.
Signed this ____ day of ____________, ____ at _________________, ______________.
Borrower:
Gateway Distributors
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NEW EXHIBITS -
5.
CONSULTING AGREEMENT
--------------------
This agreement is made this 17th day of July, 2003 between
THE RIGHT SOLUTIONS GATEWAY at 0000 Xxxx Xxxxxxx Xxxx, Xxxxx 00, Xxx Xxxxx,
Xxxxxx 00000, hereinafter referred to as RSG. Phone number (000) 000-0000.
And
Xxxx X. Xxxxxx at 0000 Xxxx Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000,
hereinafter referred to as Xxxxxx. Phone number (000) 000-0000.
RSG agrees to retain Xxxxxx, and Xxxxxx has agreed to provide certain
consulting services on the terms and conditions set out below.
RESPONSIBILITIES OF XXXXXX:
----------------------------
Xxxxxx will help RSG create an integrated prospecting and recruiting system
with specific prospecting and recruiting tools customized specifically for RSG.
Xxxxxx will consult with RSG on all aspects of their business as well as
create and implement important strategies regarding all aspects of what it
takes to cause prospecting and recruiting. It will include a 24-hour, 7 day
a week system that is designed and dedicated specifically to help RSG
distributors prospect and recruit on both its products, and its income
opportunity.
This consulting, prospecting and recruiting system shall include:
a) A 10 to 15 minute recruiting script for an audiocassette/CD
to be used for powerful prospecting. Xxxxxx will arrange for
professional voice and be at the studio to direct that professional to
create the kind of inflection and sound on the tape that is desired.
b) Sample, short scripts for distributors to use when handing
out the cassette and when calling back respondents to the new
prospecting tools.
c) Short scripts for distributors to use when following up on
prospects they have given or sent the prospecting tape to.
d) A 10 to 15 minute ?closing? script to be used for
pre-recorded message to be used by distributors to bring prospects to
a decision. It will be designed specifically to close the sale on both
the
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products AND the business opportunity. It will gently, but powerfully,
hard sell prospects on the products, auto-ship and the income
opportunity as well as give them the three choices of packages to buy
so that when the call is over all the distributor has to say to the
prospect is, ?So, what do you want to do?? Or ?Which choice do you
want to start with??
e) Three powerful, attention getting letters to be used for
prospecting and recruiting by distributors. One will be designed to
accompany the recruiting cassette that goes to people they already
know, another will be designed to accompany the cassette to go to
those they don?t know and the third one will be a letter that can be
sent out by itself inviting prospects to request the cassette.
f) An income projection for the consultant based on 6 and 12
months of using Xxxxxx?s system and RSG?s compensation plan. With your
help and knowledge of the Right Solutions comp plan I will create
realistic, believable, not pie in the sky, income projections with
just a 2% success rate, showing potential income after just 6 and 12
months of faithfully using the prospecting system I create. This
always excites distributors into action because it is so believable.
g) Design hard-hitting, attention getting, 4-color Post Cards
for prospecting.
h) Sell and train your existing distributors on using the
system I create for you in up to five live seminars and up to 30
conference calls. Who better than the author, of the new recruiting
system with years of proof that it works, as well as extensive
credentials, to tell your distributors, new or old, about the system
and excite and motivate them to use it on a massive scale? I will also
pass my abilities on to you and any person you so designate as well as
any of the leaders in the field who want to get and stay serious about
making money through proper prospecting and massive recruiting.
i) 90 Days of unlimited consulting which will include but is
not be limited to:
C Spending time with the owners to learn about, and
become indoctrinated on, the flavor, feel and culture of RSG
including the compensation plan and any other things pertinent to
creating powerful business building tools.
C Analyze and make recommendations on making sure all
existing brochures letters, website pages and any other
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marketing materials past, present or future are designed to sell
the opportunity and/or the products or both.
C Help define what should go into the three
packages/business builder kits.
C Unlimited consulting on any and all other aspects of
the RSG business opportunity as needed.
C Consult with RSG on how to leverage what I am doing for
the company to help make PR with the market makers of their
stock.
RESPONSIBILITIES OF RSG
-------------------------
1. In exchange for Xxxxxx?s services listed above, RSG shall pay Xxxxxx
the sum of one hundred and four thousand dollars ($104,00.00) in US funds.
This amount is to be paid as follows:
Upon the signing of this agreement and on or before Friday the 18th of July
2003, RSG shall purchase from Xxxxxx one thousand each of the following:
1,000 Learn To Earn cassette programs
1,000 How to Use The Conquering Force Within You cassette program
1,000 Bonus Tapes
1,000 The DNA of Success Books
1,000 9 Reports For Your Success
1,000 Monthly Ezine subscription to the ?Z? Report (Included at no charge)
Payments for the above items shall be as follows: Eight thousand, six
hundred and sixty six dollars, ($8,666.00) in US funds is due and payable on
July 18, 2003. The balance of ninety five thousand three hundred and thirty
four dollars ($95,334.00) shall be paid to Xxxxxx in eleven equal, weekly
payments of eight thousand six hundred and sixty six dollars ($8,666.00) each.
Said payments to be made on or before the following dates:
July 25, 2003, August 1, 2003, August 8, 2003, August 15, 2003, August 22,
2003, August 29, 2003, September 5, 2003, September 12, 2003, September 19,
2003, September 26, 2003 and October 3, 2003.
ALL PAYMENTS MUST BE MADE IN ONE OF THE FOLLOWING FORMS:
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1) Certified check made out to Xxxx X. Xxxxxx. If a certified
check is sent it must be sent via overnight delivery.
2) Wire transfer to Xxxxxx?s bank account. If wire transfer,
use the following banking information:
Receiving Bank Information
ARAPAHOE BANK AND TRUST
0000 Xxxx Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000 XXX
Account Name: Z Distributing, Inc.
Account Number: 0000000
Routing Number for Wire Transfer: 107 00
1957
2. Xxxxxx shall order and send the 1,000 of each product as described
above once all of the payments as outlined in Responsibilities of RSG ( 1 )
above have been paid in full. Xxxxxx will advance product earlier to provide
startup needs from his inventory if necessary.
3. RSG shall use commit to use Xxxxxx to train at the above five
mentioned seminars and conference calls between the date of this agreement and
March of 2004. The schedule for all such seminars and conference calls must be
agreed upon by both Xxxxxx and RSG.
RSG shall pay all of Xxxxxx?s expenses relating to the above services
listed and identified as ( a ) thorough ( i ) including, but not
limited to, professional voice, studio time for recording of the
prospecting cassette, production of prospecting cassettes/CDs, graphic
artists for post cards etc., design layout etc., all travel expenses
including non restricted round trip airfare (via United Airlines where
possible), car rental and gas, lodging, meals, airport parking etc. as
well as long distance calls, conference calls etc. If any travel is
required out of the continental US or Canada, airfare shall include
round trip in business class. All expenses must be pre-approved by the
Company.
ACT OF GOD:
-----------
If, due to an act of God or other cause beyond the control of Xxxxxx or
RSG, any agreed upon consulting, conference call or training presentation cannot
be given at the time, place and upon the terms agreed to, and if a satisfactory
substitute or alternate date cannot be arranged, neither Xxxx Xxxxxx or RSG
shall have claim for damages.
RSG understands and accepts that this consulting agreement with Xxxxxx is
not an exclusive agreement and that Xxxxxx may have other clients for which he
provides the same or similar services.
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This contract will be construed according to the laws of the State of
Nevada and any disputes arising here from will be litigated in its courts.
If payment under the terms of this contract is not made when due, RSG
agrees to pay all costs of collection including attorneys fees and 1.5% per
month on all amounts past due.
This contract sets forth the entire understanding and agreement and is not
subject to amendment or supplemental agreement except in writing and duly
executed by both parties. This agreement shall be valid and binding only when
signed by both an authorized agent for RSG and Xxxx X. Xxxxxx.
Signed
_________________________________ Date ___________________
Xxxx X. Xxxxxx
Signed
Gateway Distributors, Ltd, d.b.a. The Right Solution
_________________________________ Date ___________________
Xxxx Xxxxxx President / CEO
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