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EXHIBIT 10.22
CONSULTING AGREEMENT
1. Parties
1.1. This consulting agreement (this "Agreement") is made and entered
into effective as of January 3, 2000 (the "Effective Date") by and between
Peachtree FiberOptics, Inc. (the "Company"), a Delaware corporation, with its
principal office located at 0000 XXX Xxxxxxxxx, Xxxxx 000, Xxxx Xxxxx Xxxxxxx,
Xxxxxxx 00000, and Xxxxxxx X. Xxxxxxxx (the "Consultant"), a Turks and Caicos
resident, whose address is PBM ARAWAK House, Front Street, Grand Turk, Turks and
Caicos Islands, British West Indies.
2. Recitals
2.1. The Company is a leading Internet "Financial Opportunities
Exchange" that offers visitors to its website a broad complement of financial
services, proprietary business development tools, searchable databases and daily
news in one universally accessible location. The Company is actively seeking to
identify target companies as acquisition candidates and increase its public
awareness worldwide. The Company's current acquisition and marketing efforts
have been directed primarily to the US market, and wishes to increase those
efforts worldwide.
2.2. The Consultant has developed meaningful contacts with a
significant number of B2B and B2C Internet companies located primarily in
western Europe, and to a lesser extent in eastern Europe and Asia, that offer
financial and business services that may be synergistically compatible with
those the Company offers and proposes to offer.
2.3. The Company wishes to engage the services of the Consultant as an
independent contractor (i) to identify and evaluate possible acquisition
candidates and marketing opportunities for the Company, primarily in western
Europe, but also in eastern Europe, Asia and other markets worldwide, and (ii)
to consult with the Company on its expansion into those markets, all on the
terms and subject to the conditions set forth in this Agreement.
2.4. The Consultant is willing to accept this engagement, on the terms
and subject to the conditions set forth in this Agreement.
3. Engagement
3.1. ENGAGEMENT. The Company hereby engages the services of the
Consultant (i) to identify possible acquisition candidates and marketing
opportunities for the Company, primarily in western Europe, but also in eastern
Europe, Asia and other markets worldwide, and (ii) to consult with the Company
on its expansion into those markets, for the Term set forth below.
3.2. TERM. The term of this engagement shall be for the one year period
beginning on January 3, 2000, and ending on December 31, 2001 (the "Term"),
unless sooner terminated as provided in paragraph 7.1 below.
3.3. RELATIONSHIP. The relationship between the Company and the
Consultant created by this Agreement is that of independent contractors, and the
Consultant is not and shall not be deemed to be an employee of the Company for
any purpose.
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3.4. SERVICES. The services that the Consultant shall render to the
Company under this Agreement (the "Services") are and shall be limited to the
following:
(a) The Consultant shall, from time to time as the Company may
request, solely for the Company's benefit and not for the benefit of any
third party, advise and consult with the Company's board of directors (the
"Board") and executive officers regarding (i) the Company's merger and
acquisition strategies, including the identification and evaluation of
targets in Europe, Asia and other non-US markets, and (ii) the Company's
marketing strategies for increasing user awareness of the Company's
services in those markets.
(b) If requested by the Board, the Consultant will prepare and
deliver to the Board the following documents (collectively, the
"Opinions"): (i) a formal valuation (the "Valuation") of the target and, if
requested by the Board, a valuation of any non-cash consideration being
offered for the target; (ii) an opinion (the ("Fairness Opinion") as to the
fairness from a financial point of view of the target to the Company's
minority stockholders. If requested by the Board, the Consultant shall also
prepare summaries of the Opinions, which the Company may include in any
circulation regarding its acquisition of the target.
(c) The Consultant shall prepare the Opinions in accordance with
his professional judgment, and the Opinions shall comply with applicable
securities laws requirements. The Consultant and his legal counsel shall
consult with the Board and its legal counsel at the request of either with
respect to any legal matters related to a proposed Opinion prior to its
delivery. Any advice or opinions (including the Opinions) to be delivered
by the Consultant shall be made subject to and based upon such limitations,
qualifications and reservations as the Consultant, in his judgment, deems
necessary or prudent under the circumstances.
(d) The Company shall not cause, permit or allow any of the
Opinions or other oral or written opinions or advice rendered by the
Consultant under this Agreement to be reproduced or published, or furnished
to or used by any third party, in whole or in part, without the
Consultant's prior written consent (except as may be required by applicable
securities laws, and then only after consultation with the Consultant).
Such consent shall extend only to the disclosure of the specific Opinion in
the particular document as described in the consent, and will not extend to
any subsequent disclosure in any other document. Any document prepared by
or on behalf of the Company or the Board that contains or refers to any
Opinion or portion thereof shall be provided to the Consultant and his
legal counsel for review prior to its use, and shall be in form and
substance satisfactory to the Consultant and his legal counsel. The
Consultant shall have no responsibility for any such disclosure or
document, except for his Opinions or summaries thereof prepared by him.
(e) The Consultant shall be entitled at any time to withdraw,
amend or supplement any Opinion in the event that he reasonably concludes
that there has been a material change in the factors upon which that
Opinion is based and, that, as a result thereof, there has been a material
change in the Valuation following the dates thereof and prior to the
completion of the Company's acquisition of the target.
3.5. NO CAPITAL RAISING SERVICES. The Services do not include
consulting with or advising or assisting the Company, in any manner with in
connection with the offer or sale of securities in any capital-raising
transaction, or to directly or indirectly promote or maintain a market for any
of the Company's securities.
3.6. LOCATION. The Company and the Consultant intend that the Services
shall be rendered primarily from the Consultant's offices, in Turks & Cacios,
and in any event outside of the United States, and that the Services may be
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rendered by telephone and by encrypted, secure e-mail communication. The
Consultant shall not be required to perform any services in the United States,
or in any manner that would subject the Consultant's Fee define in paragraph 4.1
below to US federal or state income taxation. The Consultant shall, if requested
by the Company and at the Company's expense, attend meetings of the Company's
board of directors (the "Board") not more frequently than quarterly, provided
that the Company shall have provided the Consultant with an opinion of tax
counsel satisfactory to the Consultant that doing so will not subject the
Consultant's Fee to US federal income taxation. The Consultant shall be
reasonably available by telephone to consult with the Board at regular and
special meetings thereof.
3.7. TIME; NON-EXCLUSIVE. The Consultant shall devote as much time to
the performance of the Services as is reasonably necessary, but the Consultant
shall not required to devote any fixed number of hours or days to the
performance of the Services. The Company recognizes that the Consultant has and
will continue to have other clients and business, and agrees that this
engagement is non-exclusive.
3.8. SUPPORT STAFF AND FACILITIES. The Consultant shall furnish his own
support staff, office, telephone, and other facilities and equipment necessary
to the performance of the Services, and the Company shall not be required to
provide the Consultant with any such staff, facilities or equipment.
4. The Consultant's Fee and Expenses.
4.1. THE CONSULTANT'S FEE. (a) For the period January 3, 2000 through
April 30, 2000, the Company shall issue and deliver to the Consultant, as a fee
for his Services under this Agreement (the "Consultant's Stock Fee"), 36,250
shares of the Company's common stock ("Common Stock") each calendar month, up to
a total of 145,000 shares (the "Shares"). The Consultant's Stock Fee shall
accrue and be fully earned as of the last calendar day of each month, with any
partial months being prorated in the event of the termination of this Agreement
prior to April 30, 2000. The Company shall file a registration statement with
respect to the Shares on Form S-8 (the "Registration Statement") with the
Securities and Exchange Commission (the "SEC").
(b) For the period May 1, 2000, through December 31, 2000, the
Company shall pay the Consultant the sum of $350 per hour for his Services under
this Agreement (the "Consultants Cash Fee"), payable monthly, within 30 days
after receipt of the Consultant's invoice therefor.
4.2. OFFSET; WITHHOLDING; TAXES. The Company shall pay the Consultant's
Stock Fee and Cash Fee to the Consultant without offset, deduction or
withholding of any kind or for any purpose. The Consultant shall pay any
federal, state and local taxes payable by him with respect to the Consultant='
Stock and Cash Fees, and shall indemnify the Company against and hold it
harmless from any such taxes.
4.3. EXPENSES. Except for expenses incurred in attending meetings of
the Board as set forth in paragraph 3.6 above, the Consultant shall pay all
expenses incurred by him in connection with his performance of the Services
under this Agreement, except for such expenses as the Company shall expressly
agree in writing to pay.
5. Representations, Warranties and Covenants:
5.1. The Company represents and warrants to and covenants with the
Consultant that:
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(a) INCORPORATION, GOOD STANDING, AND DUE QUALIFICATION. The
Company is a corporation duly incorporated, validly existing and in good
standing under the laws of the jurisdiction of its incorporation; has the
corporate power and authority to own its assets and to transact the
business in which it is now engaged and proposes to be engaged in; and is
duly qualified as a foreign corporation and in good standing under the laws
of each other jurisdiction in which such qualification is required.
(b) CORPORATE POWER AND AUTHORITY. The execution, delivery and
performance by the Company of this Agreement, including the issuance of the
Shares have been duly authorized by all necessary corporate action and do
not and will not (i) require any consent or approval of the Company's
stockholders; (ii) contravene the Company's charter or bylaws; (iii)
violate any provision of any law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award presently in effect having
applicability to the Company; (iv) result in a breach of or constitute a
default under any agreement or other instrument to which the Company is a
party.
(c) LEGALLY ENFORCEABLE AGREEMENT. This Agreement is, and the
Option, when delivered under this Agreement will be, legal, valid and
binding obligations of the Company, enforceable against it in accordance
with their respective terms, except to the extent that such enforcement may
be limited by applicable bankruptcy, insolvency and other similar laws
affecting creditors' rights generally.
(d) THE SHARES. The Shares are duly and validly authorized, and
when issued will be fully paid and nonassessable.
5.2. The Consultant represents and warrants to and covenants with the
Company that:
(a) The Consultant is an accredited investor as defined in SEC
Rule 501(a).
(b) The Consultant has such knowledge and experience in financial
and business matters that he is capable of evaluating the merits and risks
of his election to receive the Consultant's Fee in the form of the Shares,
rather than in cash.
6. Conditions Precedent.
6.1. The Consultant's obligation to perform this Agreement is
subject to the conditions precedent that the Company shall have filed the
Registration Statement and issued and delivered the Shares to the
Consultant pursuant thereto.
7. Termination.
7.1. This Agreement may be terminated prior to the expiration of
the Term:
(a) By the Company at any time by giving the Consultant written
notice of its election to do so; or
(b) By the Consultant by giving the Company written notice of its
election to do so, if any representation or warranty of the Company
contained in this Agreement is materially inaccurate as of the Effective
Date, or if the Company (i) has breached any warranty, covenant or other
provision of this Agreement in any material respect; or (ii) has committed
an unlawful act or gross negligence or willful misconduct in the
performance of this Agreement.
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8. General Provisions.
8.1. ENTIRE AGREEMENT; MODIFICATION; WAIVERS. This Agreement contains
the entire agreement of the parties, and supersedes any prior agreements with
respect to its subject matter. There are no agreements, understandings or
arrangements of the parties with respect to the subject matter of this Agreement
that are not contained herein. This Agreement shall not be modified except by an
instrument in writing signed by the parties. No waiver of any provision of this
Agreement shall be effective unless made in writing and signed by the party
making the waiver. The waiver of any provision of this Agreement shall not be
deemed to be a waiver of any other provision or any future waiver of the same
provision.
8.2. NOTICES. All notices given under this Agreement shall be in
writing, addressed to the parties as set forth below, and shall be effective on
the earliest of (i) the date received, or (ii) on the second business day after
delivery to a major international air delivery or air courier service (such as
Federal Express or Network Couriers):
IF TO THE COMPANY: IF TO THE CONSULTANT:
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xXxxxxxx.xxx, Inc. Xx. Xxxxxxx X. Xxxxxxxx
0000 XXX Xxxxxxxxx, Xxxxx 000 XXX XXXXXX House
Palm Beach Gardens, Florida 33410 Front Street, Grand Turk
Attention: Xx. Xxxxxxx Xxxxxxx, CEO Turks and Caicos Islands
British West Indies
8.3. DISPUTE RESOLUTION. Any controversy or claim arising out of or
relating to this Agreement (whether in contract or tort, or both) shall be
determined by binding arbitration at Grand Turk, Turks and Caicos Islands, in
accordance with the Commercial Arbitration Rules of the International Chamber of
Commerce, by a panel of three arbitrators, one chosen by each of the parties and
the third by the two so chosen. If the two arbitrators cannot agree on a third,
then the third shall be appointed in accordance with such rules. The prevailing
party in any arbitration proceeding shall be awarded reasonable attorneys fees
and costs of the proceeding. The arbitration award shall be final, and may be
entered in and enforced by any court having jurisdiction.
8.4. LAW GOVERNING. This Agreement shall be construed and enforced in
accordance with the laws of the Turks & Caicos Islands; provided, however, if
any provision of this Agreement is unenforceable under the laws of the Turks and
Caicos Islands but is enforceable under the laws of the State of Florida, then
the laws of the State of Florida shall govern the construction and enforcement
of that provision.
8.5. BINDING EFFECT. This Agreement shall be binding on, and shall
inure to the benefit of the parties and their respective successors in interest.
8.6. CONSTRUCTION, COUNTERPARTS. This Agreement shall be construed as a
whole and in favor of the validity and enforceability of each of its provisions,
so as to carry out the intent of the parties as expressed herein. Heading are
for the convenience of reference, and the meaning and interpretation of the text
of any provision shall take precedence over its heading. This Agreement may be
signed in one or more counterparts, each of which shall constitute an original,
but all of which, taken together shall constitute one agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement on May 5,
2000, effective as of the Effective Date.
THE COMPANY: THE CONSULTANT:
xXxxxxxx.xxx, Inc. Xxxxxxx X. Xxxxxxxx
By: /s/ XXXXXXX XXXXXXX /s/ XXXXXXX XXXXXXXX
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Xxxxxxx Xxxxxxx, CEO
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