Exhibit 10.1
INDEPENDENT CONTRACTOR/ CONSULTING AGREEMENT
This Agreement is made and entered this 12th day of February, 2001, between
American Commerce Solutions, Inc. (Client), having its primary place of business
at 0000 Xxxxxxx Xxxxx, Xxxxxx, Xxxxxxx, 00000 and Xxxxx X. Xxxxxxx XX
(Consultant) having its primary place of business at 0000 Xxxxxxxxxx Xxxx.,
Xxxxx 000, Xxxxxxxxx, XX 00000.
RECITALS
WHEREAS, Client is a holding company having subsidiaries engaged in a number of
diverse business activities, and;
WHEREAS, Consultant is in the business of providing general consulting,
strategic business planning, and assisting with mergers and acquisitions', and;
WHEREAS, in the operation of Client's business, Client is in need of the
services which, Consultant provides and wishes to enter into a business
arrangement with Xxxxx X. Xxxxxxx XX to provide such services, and;
WHEREAS, the Consultant works for its Clients on a non-exclusive basis.
NOW THEREFORE, in consideration of the premises, mutual promises, obligations,
representations, and warranties, the parties agree as follows:
TERM OF AGREEMENT:
This Agreement will become effective on February 12, 2001 and will continue in
effect for a period of twelve (12) months unless terminated earlier pursuant to
the terms of this Agreement.
SERVICES OF THE INDEPENDENT CONTRACTOR/ CONSULTANT
Consultant agrees to provide strategic planning to Client. The Consultant will
provide such consulting services and advice pertaining to the Client's business
affairs as the Client may from time to time reasonably request. Without limiting
the generality of the foregoing, Consultant will assist the Client in
developing, studying and evaluating merger and acquisitions, prepare analytical
reports and studies thereon when advisable, and assist in negotiations and
discussions pertaining thereto. Consultant may, from time to time provide other
services such as introduction to companies interested in potential merger or
acquisition. The Consultant will be entitled to additional compensation under
such terms as may be agreed to by the parties.
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RELATIONSHIP OF THE PARTIES:
It is the express intention that the Consultant be an independent contractor and
not an employee, agent, joint venture, or partner of the Client. Consultant
shall not have the right to commit Client to any binding agreement.
RIGHT TO ACCEPT:
The right to accept any merger or acquisition, or any other such transaction the
Consultant may introduce the Client to, is solely that of the Client.
CONFIDENTIALITY:
The Parties hereto agree that any and all individuals and/or information, trade
secrets, know-how or other proprietary rights revealed or divulged by any of the
parties hereto to any other parties hereto, is privileged and confidential
information which may not be used or communicated by the receiving party without
the prior written consent of the communicating party. Information not previously
known to the receiving party, relating to the identification of clients, and/or
potential clients and/or names of individuals are to be considered stock in the
trade of the disclosing party. The receiving party shall notify the disclosing
party of any such previously known contacts within five (5) business days of
such disclosure. Evidence of such previously known contact must be available.
Disclosure of such information protected herein shall constitute a breach of the
Agreement. This does not apply to information that was learned outside this
Agreement or is generally known by the public.
COMPENSATION:
Compensation of the Consultant by the client shall be 500,000 shares of freely
tradable stock. Compensation is earned on a ratable basis when Consultant
provides any services listed above or when Consultant completes additional tasks
that Client may request from time to time. Payment by the Consultant to outside
contractors for assistance in the completions of tasks defined in this Agreement
shall be deemed earned when paid. Consultant will provide to Client the name,
address, telephone numbers and all other contact information where the shares
have been placed.
TERMINATION:
Notwithstanding any other provision of this Agreement, either party may
terminate this Agreement at any time by giving thirty (30) days notice to the
other party. Upon termination, Client shall be responsible for any and all
payment of out of pocket expenses previously approved Client for services due
under the scope of this Agreement. Shares not used for payment of outside
services to the Consultant or not earned by the Consultant for failure to
perform will be returned to the Client immediately upon the receipt or issuance
of the termination notice.
Termination on Occurrence of Stated Events. This Agreement shall terminate
automatically upon the condition of bankruptcy or insolvency of either party and
or for non-payment under the terms of this Agreement. In the event of
non-payment, notice shall be given in writing as described herein, and the
Client shall have 20 business days to correct such default.
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GENERAL PROVISIONS
FURTHER ACTS:
Each party agrees to perform any further acts and execute and deliver any
further documents that may be reasonably necessary to carry out the provisions
and intent of this Agreement.
ENTIRE AGREEMENT:
This Agreement contains the entire understanding of the parties hereto with
respect to the subject matter contained herein and may be amended only by a
written instrument signed by the parties affected thereby, or their respective
successors or assigns. This Agreement cancels or supercedes all prior
agreements, if any, oral or written between the Consultant and Client.
SEVERABILITY:
If any portion of this Agreement shall be held invalid, such invalidity shall
not affect the other provisions hereof, and to this extent, the provisions of
this Agreement are intended to be and shall be deemed severable.
NOTICES:
Any notice or other communication required or permitted under this Agreement
shall be sufficiently given if sent by registered mail, postage prepaid and
return receipt requested, to the address of the parties set forth in the first
paragraph of this Agreement or such addresses as may have been provided in like
manner to both parties to this Agreement. Any notice that is sent by mail under
this Agreement shall be considered received on the date on which it is actually
delivered to the premises of the party to whom it is properly addressed, such
date to be conclusively evidenced by the date of the return receipt.
GOVERNING LAW:
This Agreement shall be construed in accordance with and governed by the laws of
the state of Florida.
ASSIGNMENT:
No party to this Agreement may assign this Agreement or its rights or
obligations hereunder without written consent of the other.
ARBITRATION:
Any controversy, claim, misunderstanding, course of action, matter in question,
breach, disagreement, dispute, or other related matter arising out of, or
related to this Agreement, or the relationship between the parties, shall be
decided by mandatory binding arbitration before the American Arbitration
Association, of Florida. In such arbitration, the parties shall be entitled to
the full discovery rights accorded to litigants under the laws of Florida. The
prevailing party shall be entitled to recover all costs and expenses incurred,
including reasonable attorney's fees, related costs, and any advanced
arbitration expenses.
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INDEMNIFICATION:
Consultant will indemnify and hold harmless Client and its officers, directors,
agents and employees against any expenses which may be incurred by the Client as
a result of statements made by Consultant which are inaccurate or misleading or
failure by Consultant to state facts, which are necessary to be stated in order
to make statements made not misleading.
USE OF EMPLOYEES OF CONTRACTOR.
Consultant may, at its own expense, use any employee or subcontractors as they
deem necessary to perform the services required of Consultant by this Agreement.
Client may not control, direct or supervise Consultant's employees or
subcontractors in the performance of those services.
INTRODUCTIONS.
Should Consultant introduce Client to heretofore unknown merger/acquisition
candidates and Client closes on an introduced transaction, Consultant shall
receive at closing a fee to be determined on a case by case basis.
COOPERATION.
Client shall comply with all reasonable requirements of Consultant and provide
access to all documents reasonably necessary for the performance of Consultant's
duties under this Agreement.
COUNTERPARTS.
This Agreement may be executed simultaneously 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.
HEADINGS.
The headings of this Agreement are inserted solely for the convenience of
reference and are not part of, nor are they intended to govern, limit or aid in
the construction of any term or provision hereof.
PRONOUNS.
All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine or neuter, singular or plural, as the identity of the
person, persons, entity or entities may require.
WAIVER.
No waiver of any of the provisions of this Agreement shall be deemed, or shall
constitute a waiver of any other provision, nor shall any waiver constitute a
continuing waiver. No waiver shall be binding unless executed in writing by the
party making the waiver.
ACKOWLEDGEMENT CONCERNING COUNSEL.
Each party acknowledges that it had the opportunity to employ separate and
independent counsel of its own choosing in connection with this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
By: /s/ Xxxxx X. Xxxxxxx XX
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Xxxxx X. Xxxxxxx, XX
Date: February 12, 2001
American Commerce Solutions, Inc.
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Title: President
Date: February 12, 2001
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