EXHIBIT 99.1
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement"), dated as of November 5, 2001
(the "Effective Date"), is entered into by and between Armitec, Inc., 0000 X-0
Xxxx Xxxxxxx Xxxxxxx, XX 00000, an Delaware corporation ("AMTI"), and Xxxxxx X.
Xxxxxx, 0000 Xxxxxx Xxx #X Xxxxxxxxx, XX 00000, an individual (the
"Consultant").
W I T N E S S E T H:
WHEREAS, AMTI desires to have the Consultant perform certain services and
to be assured of the Consultant's services on the terms and conditions
hereinafter set forth; and
WHEREAS, the Consultant desires to perform certain services for AMTI: and
is willing to accept such retention by AMTI on those terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, AMTI and the Consultant
agree as follows:
(1) Services. The services ("Services") may include, but are not limited
to, the following:
a. Administration. The Consultant will provide AMTI with
administrative services, including, but not limited to, securities
documentation, general business consulting and additional services as
mutually agreed upon between the parties hereto.
b. Marketing. The Consultant may assist AMTI in the marketing and
advertising of AMTI and its products.
c. Networking. The Consultant may provide certain professional
networking opportunities for AMTI. Such opportunities may include
introductions to, and the formulation and maintenance of relationships
with, key business contacts in the United States and Europe.
d. Miscellaneous. In addition to the services set forth above in
this Section 1, the Consultant may provide additional guidance reasonably
related to the administrative and corporate development of AMTI.
(2) Retention. AMTI hereby retains the Consultant to provide the
Services and the Consultant accepts such retention, upon the terms and subject
to the conditions set forth in this Agreement.
(3) Term. The term of this Agreement shall be for a period of one (1)
year from the Effective Date (the "Term").
(4) Duties. During the Term of this Agreement, the Consultant shall
perform such duties as may be assigned to her from time to time by the President
and Chief Executive officer and/or Board of Directors of AMTI. Notwithstanding
anything herein to the contrary, at all times the relationship of the Consultant
to AMTI shall be that of independent contractors. Consultant shall allocate time
and Consultant's Personnel as it
deems necessary to provide the Services. The particular amount of time may vary
from day to day or week to week. Except as otherwise agreed, Consultant's
monthly statement identifying, in general, tasks performed for AMTI shall be
conclusive evidence that the Services have been performed. Additionally, in the
absence of willful misfeasance, bad faith, negligence or reckless disregard for
the obligations or duties hereunder by Consultant, neither Consultant nor
Consultant's Personnel shall be rendering the Services, including but not
limited to losses that may be sustained in any corporate act in any subsequent
business opportunity undertaken by AMTI as a result of advice provided by
Consultant or Consultants' Personnel.
(5) Consideration. AMTI agrees to pay Consultant a fee for the Services
by way of the delivery by AMTI of 500,000 shares of AMTI's common stock as an
initial fee, these shares shall be delivered within seven (7) days after the
execution hereof. All shares transferred are considered fully earned and
nonassessable as of the date hereof, resulting in Consultant's ownership of the
foregoing shares vesting on the Effective Date. The shares will be registered
with the United States Securities and Exchange Commission on Form S-8.
(6) Expenses. During the Term of this Agreement, and upon submission of
proper invoices, receipts, the Consultant shall be reimbursed by AMTI for all
reasonable business expenses actually and necessarily incurred by the Consultant
on behalf of AMTI in connection with the performance of the Services under this
Agreement.
(7) Representations. The Consultant represents and warrants that he is
not a party to, or bound by, any agreements or commitments, or subject to any
restrictions, including but not limited to agreements related to previous
employment or retention containing confidentiality or non-compete covenants,
which may have a possibility of adversely affecting the performance of her
duties under this Agreement.
(8) Confidentiality. The Consultant acknowledges that as a result of the
performance of her duties under this Agreement, he has and will continue to have
knowledge of, and AMTI to, proprietary and confidential information of AMTI,
including, without limitation, inventions, trade secrets, technical information,
know-how, plans, specifications, methods of operations, financial and marketing
information and the identity of customers and suppliers (collectively, the
"Confidential Information"). Accordingly, the Consultant shall not, at any time,
either during or subsequent to the term of this Agreement, use, reveal, report,
publish, transfer or otherwise disclose any of the Confidential Information to
third parties without the prior written consent of AMTI, except for such
information which is or becomes part of general public knowledge from authorized
sources or information that they are required to disclose by a governmental
agency or law.
(9) Limitation of Liability. IN NO EVENT SHALL CONSULTANT HE LIABLE TO
AMTI UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL,
PUNITIVE, OR SPECIAL DAMAGES, INCLUDING LOST PROFITS, EVEN IF AMTI HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF
CONSULTANT TO AMTI FOR ANY REASON AND UPON ANY CAUSE OF ACTION WHATSOEVER SHALL
BE LIMITED TO THE COMPENSATION THEN PREVIOUSLY PAID TO CONSULTANT BY AMTI OR THE
CORRECTION OF ANY ALLEGED DEFAULT UNDER THIS AGREEMENT AT THE SOLE DISCRETION OF
AMTI.
(10) Miscellaneous.
(a) Entire Agreement. This Agreement sets forth the entire
understanding of the parties and merges and supersedes any prior or
contemporaneous agreements between the parties pertaining to the subject
matter hereof.
(b) Waivers and Modification. No modification of this Agreement or
waiver of any term or condition herein shall be effective unless it refers
to this Agreement, explicitly states that it intends to modify this
Agreement or to waive a term or condition herein, is in writing, and is
signed by both parties hereto. Terms contrary or in addition to the terms
of this Agreement in any document or correspondence shall have no effect
whatsoever unless said document or correspondence meets the aforesaid
conditions. Any waiver of any term or condition of this Agreement, or of
the breach of any covenant, representation, or warranty contained herein,
in any one instance, shall not operate or be deemed to be or construed as
a further or continuing waiver of such term, condition, or breach of
covenant, representation, or warranty, nor shall any failure to exercise,
or delay in exercising, any right, remedy, or power under this Agreement
operate as a waiver thereof, nor shall any single or partial exercise of
any right, remedy, or power under this Agreement preclude any other or
further exercise thereof, or the exercise of any other right, remedy, or
power provided herein or by law or in equity.
(c) Successors and Assigns. Neither party shall have the right to
assign this Agreement, or any rights or obligations hereunder, without the
consent of the other party; provided, however, that upon the sale of all
or substantially all of the assets, business and goodwill of AMTI to
another company, or upon the merger or consolidation of AMTI with another
company, this Agreement shall inure to the benefit of, and be binding
upon, AMTI purchasing such assets, business and goodwill, or surviving
such merger or consolidation, as the case may be, in the same manner and
to the same extent as though such other company were AMTI. Subject to the
foregoing, this Agreement shall inure to the benefit of, and be binding
upon, the parties hereto and their legal representatives, heirs,
successors and permitted assigns.
(d) Severability. If any provision of this Agreement is held to be
invalid or unenforceable by a court of competent jurisdiction, such
invalidity or unenforceability shall not affect the validity and
enforceability of the other provisions of this Agreement and the provision
held to be invalid or unenforceable shall be enforced as nearly as
possible according to its original terms and intent to eliminate such
invalidity or unenforceability.
(e) Continuing Obligations. Rights and obligations theretofore
accruing but not satisfied as of the termination of this Agreement shall
remain in full force and effect until satisfied in accordance with this
Agreement.
(f) Force Majeure. The Consultant shall not be in default to AMTI
under this Agreement for any delay or failure to perform due to causes
beyond Consultant's reasonable control.
(g) Headings. The headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
(h) Communications. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be
deemed to have been given at the time personally delivered or when mailed
in any United States post office enclosed in a registered or certified
postage prepaid envelope and addressed to the addresses set forth below,
or to such other address as any party may specify by notice to the other
party; provided, however, that any notice of change of address shall be
effective only upon receipt.
To AMTI: Armitec, Inc.
0000 X-0 Xxxx Xxxxxxx
Xxxxxxx, XX 00000
Telephone: 000.000.0000
Telecopier: 770.980.9822
To the Consultant: Xxxxxx X. Xxxxxx
0000 Xxxxxx Xxx #X
Xxxxxxxxx, XX 00000
Telephone: 000.000.0000
Telecopier: 909.471.0829
(i) Arbitration. Any controversy or claim arising out of or
relating to this Agreement, or the breach thereof, shall be settled by
arbitration administered by the American Arbitration Association ("AAA")
in accordance with its Commercial Rules (including its Emergency Interim
Relief Procedures] and its supplementary procedures for Securities
Arbitration, and judgment on the award rendered by the arbitrators may be
entered in any court having jurisdiction thereof. The matter shall be
heard in Texas by a panel of three (3) AAA arbitrators, one picked by the
Investor, one picked by the Seller, and the third agreed to by the two
selected arbitrators. The Seller and the investor, for themselves and
their respective successors in interest, hereby irrevocably consent to
such jurisdiction, venue and binding arbitration, and hereby irrevocably
waive any claim of forum nonconveniens or right to change such venue or to
litigate the underlying dispute in court.
(j) Governing Law. This Agreement is made and executed and shall
be governed by the laws of the State of Texas, without regard to the
conflicts of law principles thereof.
(k) No Third-Party Beneficiaries. Each of the provisions of this
Agreement is for the sole and exclusive benefit of the parties hereto and
shall not be deemed to be for the benefit of any other person or entity.
(1) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(m) Contra Proferentem Waived. This Agreement was drafted by the
Consultant. However, all parties to this Agreement have been or have had
the opportunity to be represented by legal counsel, and hereby waive
application of the rule of contract construction which provides that terms
shall be construed against the drafting party.
(n) Independent Contractor. Consultant and Consultant's Personnel
will act as an independent contractor in the performance of its duties
under this Agreement. Accordingly, Consultant will be responsible for
payment of all federal, state, and local taxes on compensation paid under
this Agreement, including income and social security taxes, unemployment
insurance, and any other taxes due relative to Consultant's Personnel, and
any and all business license fees as may be required. This Agreement
neither expressly nor impliedly creates a relationship of principal and
agent, or employee and employer, between Consultant's Personnel and AMTI.
Neither Consultant nor Consultant's Personnel are authorized to enter into
any agreements on behalf of AMTI. AMTI expressly retains the right to
approve, in its sole discretion, each business opportunity introduced by
Consultant, and to make all final decisions with respect to effecting a
transaction or any business opportunity.
(o) No Agency Express or Implied. This Agreement neither expressly
nor impliedly creates a relationship of principal and agent between AMTI
and Consultant, or employee and employer as between Consultant's Personnel
and AMTI.
(p) Termination. AMTI and Consultant may terminate this Agreement
prior to the expiration of the Term upon thirty (30) days written notice
with mutual written consent. Failing to have mutual consent, without.
prejudice to any other remedy to which the terminating party may be
entitled, if any, either party may terminate this Agreement with thirty
(30) days written notice under the following conditions:
(1) By AMTI.
(i) If during the Primary Term of this Agreement or
any Extension Period, Consultant is unable or fails to provide
the Services as set forth herein for thirty (30) consecutive
business days because of illness, accident, or other
incapacity of Consultant's Personnel; or,
(ii) If Consultant willfully breaches or neglects the
duties required to be performed hereunder; or,
(iii) At Company's option without cause upon 30 days
written notice to Consultant; or
(2) By Consultant.
(i) If AMTI breaches this Agreement or fails to make
any payments or provide information required hereunder; or,
(ii) If AMTI ceases business or sells a controlling
interest to a third party, or agrees to a consolidation or
merger of itself with or into another corporation, or
enters into such a transaction outside of the scope of this
Agreement, or sells substantially all of its assets to another
corporation, entity or individual outside of the scope of this
Agreement; or,
(iii) If AMTI subsequent to the execution hereof has a
receiver appointed for its business or assets, or otherwise
becomes insolvent or unable to timely satisfy its obligations
in the ordinary course of, including but not limited to the
obligation to pay the Consultancy Fee; or,
(iv) If AMTI subsequent to the execution hereof
institutes, makes a general assignment for the benefit of
creditors, has instituted against it any bankruptcy proceeding
for reorganization for rearrangement of its financial affairs,
files a petition in a court of bankruptcy, or is adjudicated a
bankrupt; or,
(v) If any of the disclosures made herein or
subsequent hereto by AMTI to Consultant are determined to be
materially false or misleading.
In the event Consultant elects to terminate without
cause or this Agreement is terminated prior to the expiration
of the Term by mutual written agreement, or by AMTI for the
reasons set forth in 1(i) and (ii) above, AMTI shall only be
responsible to pay Consultant for unreimbursed expenses,
Consultancy Fee earned and accrued up to and including
approved upon the effective date of termination. If this
Agreement is terminated by AMTI for any other reason, or by
Consultant for reasons set forth in 2(i) through (v) above,
Consultant shall be entitled to any outstanding unpaid portion
of approved reimbursable expenses, and for the remainder of
the un-expired portion of the applicable term of the
Agreement.
(q) Indemnification. Subject to the provisions herein, AMTI and
Consultant agree to indemnify, defend and hold each other harmless from
and against all demands, claims, actions, losses, damages, liabilities,
costs and expenses, including without limitation, interest, penalties and
attorneys' fees and expenses asserted against or imposed or incurred by
either party by reason of or resulting from any action or a breach of any
representation, warranty, covenant, condition, or agreement of the other
party to this Agreement. AMTI acknowledges and affirms that it will not
request, require or otherwise induce Consultant to become involved in any
activities whatsoever that would result in Consultant violating any
provisions of the Securities Act of 1933, as amended, or the Securities
Exchange Act of 1934, as amended, including, but not limited to, the
provisions of Form S-8, Regulations S-K and S-B, and AMTI agrees to
indemnify and hold harmless Consultant from any violation thereof.
(r) Authority. By signing below, each person executing this
Agreement on behalf of a party hereby personally warrants that said person
has the express authority to so execute this Agreement and bind said party
hereto.
IN WITNESS WHEREOF, each of the parties hereto has duly executed this
Agreement as of the date set forth above.
______________________________ ______________________________
By: Xxxxx Xxxxx By: Xxxxxx X. Xxxxxx
Xxxxx Xxxxx Xxxxxx X. Xxxxxx
President 1000 Xxxxxx Way #C
Armitec, Inc. Xxxxxxxxx, XX 00000
0000 X-0 Xxxx Xxxxxxx
Xxxxxxx, XX 00000
