1
EXHIBIT 10.1
CONSULTING AGREEMENT
This Agreement is made effective December 9, 2000 by and between
Orion Technologies, Inc. ("CLIENT "), and Xxxxxxx Xxxxxx ("CONSULTANT").
Now, Therefore in consideration of the mutual promises, covenants and
agreements contained herein, and for other good and valuable consideration,
the receipt and adequacy of which is expressly acknowledged, CONSULTANT and
CLIENT agree as follows:
CLIENT hereby retains CONSULTANT to assist CLIENT in enhancing its strategic
Internet business development. CONSULTANT, with CLIENT's approval, will assist
CLIENT in the following areas (the "Consulting Services"):
1. Strategic Alliances - CONSULTANT will assist CLIENT in identifying
and implementing online strategic alliances in order to link with
synergistic web sites and derive additional web traffic.
1. Web Site Consulting - CONSULTANT will assist CLIENT in optimizing
CLIENT'S web site including the creation and implementation of
submission forms to generate the maximum number of new prospects and
clients.
1. Targeted Marketing - CONSULTANT will design and implement customized
advertising and marketing programs in order to enhance CLIENT's brand
recognition.
1. Partnerships - CONSULTANT will assist CLIENT with identifying and
establishing corporate partnerships with target Fortune 500 companies
in order to establish and enhance brand credibility.
CONSULTANT will provide periodic reports to CLIENT regarding the Consulting
Services and consult with CLIENT on the status of the Consulting Services from
time to time on request.
II. COMPENSATION
CONSULTANT will receive directly from CLIENT, within 14 days of executing this
agreement, 225,000 shares of the CLIENT's common stock (the "shares"). Of the
225,000 shares, CLIENT will register 100,000 with the Securities and Exchange
Commission utilizing Form S-8 or any other form CLIENT determines to use to
register such shares. The remaining 125,000 shares of CLIENT's stock to be
delivered to CONSULTANT will not be registered and will therefore be
restricted as to resale. It is understood and agreed between CLIENT and
CONSULTANT that the non-registered shares of CLIENT that CONSULTANT is to
receive are for CONSULTANT's own account and not for distribution and may only
be resold by
13
2
CONSULTANT in conformity with then existing exemptions from the registration
requirements of the Securities Act of 1933 and the certificate evidencing such
shares will contain a restrictive Legend to such effect. It is further
understood and agreed that CLIENT will use commercially reasonable efforts to
assist CONSULTANT to enable CONSULTANT to avail himself of any appropriate
exemption(s) from the registration requirements of the Securities Act of 1933,
particularly Rule 144, to enable CONSULTANT to sell his shares after meeting
whatever requirements are imposed under existing law before the shares may be
resold.
CONSULTANT shall be responsible for all out of pocket expenses unless
pre-approved, in writing, by CLIENT including travel expenses, third party
expenses, filing fees, copy and mailing expenses that CONSULTANT may incur.
III. TERM OF AGREEMENT, EXTENSIONS AND RENEWALS
This Consulting Agreement and CONSULTANT's obligation to continue providing
Consulting Services, as defined herein, shall remain in full force and effect
for one year from the date on which this agreement is executed by both
CONSULTANT and CLIENT. CLIENT may terminate this Consulting Agreement at any
time upon written notice to CONSULTANT.
IV. CLIENT REPRESENTATIONS AND INDEMNIFICATION
The CLIENT represents that all information provided to assist CONSULTANT in
the performance of CONSULTANT's duties under this Agreement shall be true and
correct. CLIENT shall disclose all material facts and shall not omit any facts
necessary to make statements made by CLIENT not misleading. CLIENT
acknowledges that CONSULTANT, in the performance of his obligations under this
Agreement, will be relying on the accuracy of information provided to him by
CLIENT and that persons dealing with CONSULTANT will also be relying on said
information. CLIENT hereby agrees to assume responsibility and liability for
the accuracy and completeness of information prepared by CLIENT and
disseminated on behalf of CLIENT by CONSULTANT which is later claimed to be
false and/or misleading in any material respect. CONSULTANT shall not
disseminate any materials or information on behalf of CLIENT without the prior
consent of CLIENT.
CLIENT further represents that the transactions regarding the issuance of its
stock pursuant to this Agreement are in compliance with existing federal
securities laws and regulatory requirements.
The execution and delivery of this Agreement does not, and the consummation of
the transactions contemplated hereby will not, violate any provision of
CLIENT's Articles of Incorporation or Bylaws. CLIENT represents that it has
taken all actions required by law, its Articles of Incorporation, or otherwise
to authorize the execution and delivery of this Agreement and the shares of
CLIENT's common stock to be delivered to CONSULTANT pursuant to the terms of
this Agreement; and that the person(s) executing this Agreement on behalf of
the CLIENT have full power, authority, and the legal right to execute same.
This Agreement constitutes a valid and binding obligation of the CLIENT.
14
3
The CLIENT agrees to indemnify, defend and hold the CONSULTANT, its officers,
employees, representatives and agents harmless against all claims,
proceedings, suits or other matters that are or might be asserted against
CONSULTANT, its officers, employees, representatives and agents by reason of
CONSULTANT's performance rendered pursuant to this Agreement on behalf of
CLIENT and the CLIENT agrees to pay the CONSULTANT's reasonable attorneys'
fees and expenses in connection with CONSULTANTS defense in any such matters;
provided that the CONSULTANT was acting within the scope of this Agreement and
was not grossly negligent in the performance of his duties hereunder.
V. CONSULTANT IS NOT AN AGENT OR EMPLOYEE
CONSULTANT's obligations under this Agreement consist solely of the Consulting
Services described herein. In no event shall CONSULTANT be considered the
agent of CLIENT or otherwise represent or bind CLIENT. For purposes of this
Agreement, CONSULTANT is an independent contractor. All final decisions with
respect to acts of CLIENT or its affiliates, whether or not made pursuant to
or in reliance on information or advice furnished by CONSULTANT hereunder,
shall be those of CLIENT or such affiliates and CONSULTANT shall, under no
circumstances, be liable for any expense incurred or loss suffered by CLIENT
as a consequence of such actions or decisions.
CONSULTANT is responsible for all taxes imposed on CONSULTANT as a result of
the receipt of the shares.
The CLIENT recognizes that CONSULTANT now renders or may in the future render
consulting services to other companies which may or may not conduct business
and activities similar to the CLIENT. CONSULTANT shall not be required to
devote his full time and attention to the performance of his duties under this
agreement, but shall devote only so much of his time and attention as shall be
reasonably necessary for such purposes.
VI. MISCELLANEOUS
Amendment. This Agreement may be amended or modified at any time and in any
manner but only by an instrument in writing executed by the parties hereto.
Waiver. All the rights and remedies of either party under this Agreement are
cumulative and not exclusive of any other rights and remedies provided by law.
No delay or failure on the part of either party in the exercise of any right
or remedy arising from a breach of this Agreement shall operate as a waiver of
any subsequent right or remedy arising from a subsequent breach of this
Agreement. The consent of any party where required hereunder to any act or
occurrence shall not be deemed to be a consent to any other act or occurrence.
Assignment. Neither party to this Agreement may assign any right or
obligation created by this Agreement without the prior written consent of
the other.
Notices. Any notice or other communication required or permitted by this
Agreement must be in writing and shall be deemed to be properly given when
delivered in person to an officer of the
15
4
other party, when deposited in the United States mails for transmittal by
certified or registered mail, postage prepaid, or when deposited with a public
telegraph company for transmittal or when sent by facsimile transmission,
charges prepaid provided that the communication is addressed.
In the case of CLIENT to: Orion Technologies, Inc.
0000 00xx XX
Xxxxxxxxxx XX, 00000
Attn: Xxxxx Xxxxxxxx
In the case of CONSULTANT to: 00000 Xxxxxxxxx Xxxx #000
Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Headings and Captions. The headings of paragraphs are included solely for
convenience. If a conflict exists between any heading and the text of this
Agreement, the text shall control.
Entire Agreement. This instrument and the exhibits to this instrument contain
the entire Agreement between the parties with respect to the transaction
contemplated by the Agreement. This Agreement may be executed in any number of
counterparts but the aggregate of the counterparts together constitute only
one and the same instrument.
Effect of Partial Invalidity. In the event that any one or more of the
provisions contained in this Agreement shall for any reason be held to be
invalid, illegal, or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provisions of this Agreement,
but this Agreement shall be constructed as if it never contained any such
invalid, illegal or unenforceable provisions.
Binding effect. This Agreement shall be binding upon the parties hereto and
their respective heirs, successors and assigns.
Arbitration. Any controversy or claim arising out of or relating to the terms
of this Agreement, or otherwise related to the compliance by either party with
its obligations hereunder, shall be settled by binding arbitration in
Washington, D.C. The arbitration shall be conducted by JAMS/Endispute, whose
rules applicable to commercial disputes shall be in force, and judgment on the
award rendered by the arbitrator(s) may be entered by any court having
jurisdiction thereof. Any party to this Agreement may submit to arbitration
any controversy or claim hereunder. The parties hereto agree that Washington,
D.C. is the proper venue for the arbitration of any dispute among the parties
hereto.
Controlling Law. The validity, interpretation and performance of this
Agreement shall be controlled by and construed under the laws of the District
of Columbia, without regard to conflicts of laws principles.
Attorney's Fees. If any action at law or in equity, including an action for
declaratory relief, is brought to enforce or interpret the provisions of this
Agreement, the prevailing party shall be
16
5
entitled to recover actual attorney's fees from the other party. The
attorney's fees may be ordered by Arbitration of any action described in this
paragraph.
Time is of the Essence. Time is of the essence for each and every provision
hereof.
Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original and all of which taken together shall be but
a single instrument. For purposes of this Agreement only, facsimile signatures
shall be considered original signatures.
IN WITNESS WHEREOF, the parties have executed this agreement as of the day and
year written.
CONSULTANT
/s/ Xxxxxxx Xxxxxx
------------------
Xxxxxxx Xxxxxx
Date:12/9/00
The CLIENT
By:/s/ A. Xxxxx Xxxxxxxx
---------------------
Title: President and CEO
Date:12/9/00
17
