EXHIBIT 10.3:
CORPORATE CONSULTING AGREEMENT
THIS AGREEMENT ("AGREEMENT") DATED APRIL 1, 2003 IS BY AND BETWEEN
FLEXXTECH CORPORATION, (THE "COMPANY"), A NEVADA CORPORATION LOCATED AT 00
XXXXXXXXXX XX., XXXXX 000X, XXXXXX, XX AND DUTCHESS ADVISORS, LTD. (THE
"CONSULTANT"), A NEW YORK CORPORATION LOCATED AT 000 XXXXXX XX., 0xx XXXXX,
XXXXXX, XX.
WHEREAS, the Company is a publicly traded entity currently seeking to merge with
or acquire other entities with substantive operations.
WHEREAS, Consultant is engaged in the business of advising publicly-traded
companies in the areas of business development.
WHEREAS, the Company desires to obtain the benefits of Consultant's experience
and know-how, and accordingly, the Company has offered to engage Consultant to
render consulting and advisory services to the Company on the terms and
conditions hereinafter set forth;
WHEREAS, Consultant desires to accept such engagement upon such terms and
conditions hereinafter set forth.
NOWTHEREFORE in consideration of the foregoing, the parties agree as
follows:
SECTION 1. SERVICES RENDERED
Consultant shall;
(i) Assist the Company with its capitalization and restructuring.
(ii) Assist the Company with its business development by seeking
potential business partners, candidates for joint ventures,
mergers and acquisitions or qualified persons to join the
Company's board of directors.
SECTION 2. COMPENSATION
For services rendered under Section 1, Consultant shall be paid the following,
by the Company:
(a) CONSULTING FEES. In consideration for the availability of Consultant during
the term hereunder and the services rendered pursuant to this Agreement,
promptly upon execution of this Agreement, the Company shall;
(i) Pay to Consultant, the sum of three thousand dollars per month
($3,000) for non accountable expenses ("Retainer") for months 1-12. The Retainer
shall increase to five thousand dollars ($5,000) per month for months 13-24.
Payment of nine thousand dollars ($9,000) for the first three months is due upon
execution of this Agreement. Payment for the remaining months shall be due by
the fifth business day of each month and payable in the form of corporate check
or wire transfer.
(ii) Issue to Consultant seven hundred thousand (700,000) fully paid
and non-assessable shares of Common Stock of the Company (the "Shares").
(b) REIMBURSEMENT OF EXPENSES. The Company shall reimburse Consultant for those
reasonable and necessary out-of-pocket expenses (including but not limited to
travel, transportation, lodging, meals etc.) which have been approved by the
President of the Company prior to their incurrence and which have been incurred
by Consultant in connection with the rendering of services hereunder. Any
reimbursement to be made by the Company pursuant to this Section shall be made
following submission to the Company by Consultant of reasonable documentation of
the expenses incurred.
SECTION 3. RELATIONSHIP OF PARTIES
This Agreement shall not constitute an employer-employee relationship.
It is the intention of each party that Consultant shall be an independent
contractor and not an employee of the Company. All compensation paid to
Consultant shall constitute earnings to Consultant and be classified as normal
income. The Company shall not withhold any amounts therefrom as U.S. federal or
state income tax withholding, or as employee contribution to Social Security or
any other employer withholding applicable under state or federal law.
SECTION 4. TERM
The term of this Agreement shall be twenty four (24) months commencing
on the date and year first above written.
SECTION 5. EXCLUSIVITY
The Company shall deem Consultant to be its exclusive advisor for
services performed as outlined under SECTION 1. of this Agreement. The Company
also agrees it will not retain other agents, brokers, bankers, consultants,
advisors, finders or other parties for the purpose of performing any of those
services as outlined under SECTION 1. of this Agreement, unless waived in
writing, by Consultant.
SECTION 6. TERMINATION
This Agreement may be terminated by either party with cause only, and
only under the following circumstances; when either party (i) knowing and
willfully breaches any term(s) of this Agreement, or (ii) knowing and willfully
commits any act(s) related to the normal conduct of business which are unlawful,
or any serious criminal action as promulagated pursuant to local, state or
federal law.
Termination of the Agreement does not relieve the Company of its
obligation to remunerate Consultant pursuant to the terms of this Agreement, and
the Shares issued to Consultant and the Fund upon execution of this Agreement
shall be non-refundable. Upon termination, any outstanding remuneration due
Consultant for services rendered shall be paid within 3 (three) business days
following termination.
SECTION 7. INDEMNIFICATION
(a) In consideration of Consultant' execution and delivery of the this
Agreement in addition to all of The Company's other obligations under this
Agreement, The Company shall defend, protect, indemnify and hold harmless
Consultant and all of its officers, directors, employees and direct or indirect
investors and any of the foregoing person's agents or other representatives
(including, without limitation, those retained in connection with the
transactions contemplated by this Agreement) (collectively, the "CONSULTANT
INDEMNITEES") from and against any and all actions, causes of action, suits,
claims, losses, costs, penalties, fees, liabilities and damages, and expenses in
connection therewith (irrespective of whether any such Indemnitee is a party to
the action for which indemnification hereunder is sought), and including
reasonable attorneys' fees and disbursements (the "CONSULTANT INDEMNIFIED
LIABILITIES'), incurred by any Indemnitee as a result of, or arising out of, or
relating to (i) any misrepresentation or breach of any representation or
warranty made by The Company in this Agreement or any other certificate,
instrument or document contemplated hereby or thereby (ii) any breach of any
covenant, agreement or obligation of The Company contained in this Agreement or
any other certificate, instrument or document contemplated hereby or thereby,
(iii) any cause of action, suit or claim brought or made against such Indemnitee
by a third party and arising out of or resulting from the execution, delivery,
performance or enforcement of this Agreement or any other certificate,
instrument or document contemplated hereby or thereby, except insofar as any
such misrepresentation, breach or any untrue statement, alleged untrue
statement, omission or alleged omission is made in reliance upon and in
conformity with written information furnished to Consultant by The Company. To
the extent that the foregoing undertaking by The Company may be unenforceable
for any reason, The Company shall make the maximum contribution to the payment
and satisfaction of each of the Consultant Indemnified Liabilities which is
permissible under applicable law. The indemnity provisions contained herein
shall be in addition to any cause of action or similar rights Consultant may
have, and any liabilities Consultant may be subject to.
(b) In consideration of The Company's execution and delivery of the this
Agreement and in addition to all of the Consultant' other obligations under this
Agreement, Consultant shall defend, protect, indemnify and hold harmless The
Company and all of its subsidiaries, shareholders, officers, directors and
employees and any of the foregoing person's agents or other representatives
(including, without limitation, those retained in connection with the
transactions contemplated by this Agreement) (collectively, the "THE COMPANY
INDEMNITEES") from and against any and all actions, causes of action, suits,
claims, losses, costs, penalties, fees, liabilities and damages, and expenses in
connection therewith (irrespective of whether any such The Company Indemnitee is
a party to the action for which
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indemnification hereunder is sought), and including reasonable attorneys' fees
and disbursements (the "THE COMPANY INDEMNIFIED LIABILITIES'), incurred by any
The Company Indemnitee as a result of, or arising out of, or relating to (i) any
misrepresentation or breach of any representation or warranty made by Consultant
in the Agreement or any other certificate, instrument or document contemplated
hereby or thereby, (ii) any breach of any covenant, agreement or obligation of
Consultant contained in the Agreement or any other certificate, instrument or
document contemplated hereby or thereby, (iii) any cause of action, suit or
claim brought or made against such The Company Indemnitee by a third party and
arising out of or resulting from the execution, delivery, performance or
enforcement of the Agreement or any other certificate, instrument or document
contemplated hereby or thereby, and except insofar as any such
misrepresentation, breach or any untrue statement, alleged untrue statement,
omission or alleged omission is made in reliance upon and in conformity with
written information furnished to The Company by Consultant. To the extent that
the foregoing undertaking by Consultant may be unenforceable for any reason,
Consultant shall make the maximum contribution to the payment and satisfaction
of each of the The Company Indemnified Liabilities which is permissible under
applicable law. The indemnity provisions contained herein shall be in addition
to any cause of action or similar rights The Company may have, and any
liabilities The Company may be subject to.
(c) Indemnification Procedure. Any party entitled to indemnification under
this Section (an "INDEMNIFIED PARTY") will give written notice to the
indemnifying party of any matters giving rise to a claim for indemnification;
provided, that the failure of any party entitled to indemnification hereunder to
give notice as provided herein shall not relieve the indemnifying party of its
obligations under this Section except to the extent that the indemnifying party
is actually prejudiced by such failure to give notice. In case any action,
proceeding or claim is brought against an indemnified party in respect of which
indemnification is sought hereunder, the indemnifying party shall be entitled to
participate in and, unless in the reasonable judgment of counsel to the
indemnified party a conflict of interest between it and the indemnifying party
may exist with respect to such action, proceeding or claim, to assume the
defense thereof with counsel reasonably satisfactory to the indemnified party.
In the event that the indemnifying party advises an indemnified party that it
will contest such a claim for indemnification hereunder, or fails, within thirty
(30) days of receipt of any indemnification notice to notify, in writing, such
person of its election to defend, settle or compromise, at its sole cost and
expense, any action, proceeding or claim (or discontinues its defense at any
time after it commences such defense), then the indemnified party may, at its
option, defend, settle or otherwise compromise or pay such action or claim. In
any event, unless and until the indemnifying party elects in writing to assume
and does so assume the defense of any such claim, proceeding or action, the
indemnified party's costs and expenses arising out of the defense, settlement or
compromise of any such action, claim or proceeding shall be losses subject to
indemnification hereunder. The indemnified party shall cooperate fully with the
indemnifying party in connection with any settlement negotiations or defense of
any such action or claim by the indemnifying party and shall furnish to the
indemnifying party all information reasonably available to the indemnified party
which relates to such action or claim. The indemnifying party shall keep the
indemnified party fully apprised at all times as to the status of the defense or
any settlement negotiations with respect thereto. If the indemnifying party
elects to defend any such action or claim, then the indemnified party shall be
entitled to participate in such defense with counsel of its choice at its sole
cost and expense. The indemnifying party shall not be liable for any settlement
of any action, claim or proceeding effected without its prior written consent.
Notwithstanding anything in this Section to the contrary, the indemnifying party
shall not, without the indemnified party's prior written consent, settle or
compromise any claim or consent to entry of any judgment in respect thereof
which imposes any future obligation on the indemnified party or which does not
include, as an unconditional term thereof, the giving by the claimant or the
plaintiff to the indemnified party of a release from all liability in respect of
such claim. The indemnification required by this Section shall be made by
periodic payments of the amount thereof during the course of investigation or
defense, as and when bills are received or expense, loss, damage or liability is
incurred, within ten (10) Business Days of written notice thereof to the
indemnifying party so long as the indemnified party irrevocably agrees to refund
such moneys if it is ultimately determined by a court of competent jurisdiction
that such party was not entitled to indemnification. The indemnity agreements
contained herein shall be in addition to (a) any cause of action or similar
rights of the indemnified party against the indemnifying party or others, and
(b) any liabilities the indemnifying party may be subject to.
SECTION 8. GOVERNING LAW
Any controversy, claim or dispute arising from the interpretation of
this Agreement, or breach thereof, shall settled by arbitration in the County of
Suffolk, Commonwealth of Massachusetts in accordance with the rules of the
American Arbitration Association there in effect, except that the parties
thereto shall have any right to discovery as would permitted by the Federal
Rules of Civil Procedure. The prevailing Party shall be entitled to
reimbursement of actual costs and attorney's fees from the arbitration and the
decision of the Arbitrator(s) shall be final.
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SECTION 9 ASSIGNABILITY.
This Agreement and the rights and obligations of the
parties hereto shall bind and inure to the benefit of
Consultant and its legal representatives and heirs and the
Company and any successor or successors of the Company by
reorganization, merger, or consolidation and any assignee of
all or substantially all of its business and properties, but,
except as to any such legal representatives or heirs of
Consultant or successor or assignee of the Company, neither
this Agreement nor any rights or benefits hereunder may be
assigned by the Company or the Executive. Nothing in this
Agreement, express or implied, is intended to or shall confer
upon any other person any right, benefit or remedy of any
nature whatsoever under or by reason of this Agreement.
SECTION 10. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement of the Company and the
Consultant as to the subject matter hereof, superseding all prior written and
prior or contemporaneous oral understanding or agreements, including any
previous agreements, or understandings with respect to the subject matter
covered in this Agreement. This Agreement may not be modified or amended, nor
may any right be waived, except by a writing which expressly refers to this
Agreement, states that it is intended to be a modification, amendment, or waiver
and is signed by both parties in the case of a modification or amendment or by
the party granting the waiver. No course of conduct or dealing between the
parties and no custom or trade usage shall be relied upon to vary the terms of
this Agreement. The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
BY FLEXXTECH CORPORATION:
______________________________________
Xxxx Xxxxxxx
President
BY DUTCHESS ADVISORS, LTD.:
______________________________________
Xxxxxxx X. Xxxxxxxx
Senior Partner
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