CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made and
entered into as of August 15, 2002 (the "Commencement Date"), by
and between INTERACTIVE OUTDOORS, INC. (the "Company") and
XXXXXXX.XXX, INC. (the "Consultant").
RECITALS
A. The Company desires to avail itself of the experience,
sources of information, advice, and assistance of Consultant.
B. Consultant is willing to make available to the Company
Consultant's experience, sources of information, advice, and
assistance.
NOW, THEREFORE, in consideration of the premises and the
covenants contained herein, the Company and the Consultant agree
as follows:
1. Services. Upon request of the Company, Consultant hereby
agrees to render services to the Company concerning marketing,
public relations, acquisitions, strategic planning, and business
opportunities of the Company or its affiliates, as well as
investment banking and similar services relative to financings
and other material transactions of the Company or its affiliates,
including by way of example and not in limitation of the
generality of the foregoing, (a) assistance and advice with
respect to planning, analyzing, and forecasting long-term
financial outlook and needs, (b) assistance and advice with
respect to locating, arranging, negotiating, analyzing, and
obtaining debt and equity resources, and (c) assistance and
advice with respect to capital market and investor relations
matters (collectively, the "Services").
2. Term of Agreement; Termination. This Agreement shall
commence on the Commencement Date and shall continue until one
year thereafter, unless extended otherwise by written consent of
the parties (the "Term").
Either party may terminate this Agreement upon notice to the
other party if the other party is in breach of its obligations
hereunder and such breach continues for sixty (60) days following
notice thereof from the non-breaching party to the breaching
party. Upon termination of this Agreement, any obligations of
the Company or Consultant shall cease.
3. Compensation. In consideration of Consultant's entering
into this Agreement and in exchange for the services to be
performed pursuant to this Agreement, the Company shall pay
Consultant (i) a fee of the number of shares of the Company's
common stock equal to 8% of the Company's issued and outstanding
common stock as of the effective date of the Registration
Statement, as defined below (the "Shares"), to be issued to the
Consultant (or its designees), and (ii) a warrant (the "Warrant"
and, together with the Shares, the "Consultant Fee") to purchase
100,000 shares of the Company's common stock exercisable at $2.00
per share. The Shares shall be deposited in an escrow account
with a law firm selected by the Consultant and be subject to a
mutually acceptable escrow agreement. The Consultant's right to
the Shares shall vest in four equal amounts beginning as of the
date of this Agreement with the remainder vesting in the same
amounts every thirty (30) days from such date until fully vested.
4. Registration Rights. (a) The Company agrees to cooperate
with Consultant in filing a registration statement to register
all of the Shares (as so filed or amended, the "Registration
Statement"), pursuant to the Securities Act of 1933, as amended,
and the Company further agrees that, after the Registration
Statement is declared effective, it will thereafter maintain the
effectiveness of such registration until the earlier of (i) two
(2) years after the effective date of the Registration Statement
or (ii) the date on which the Consultant has sold or otherwise
transferred all of the Shares. Consultant agrees to cooperate
with the Company in filing the Registration Statement, in filing
any subsequent amendments thereto and in responding to any
Securities and Exchange Commission comments or questions
regarding the same at no additional cost to the Company.
(b) In addition to the registration rights
referred to in the preceding provisions of Section 4(a),
effective after the expiration of the effectiveness of the
Registration Statement, the Consultant shall have piggy-back
registration rights with respect to the Shares then held by the
Consultant (collectively, the "Remaining Shares") until the date
on which the Consultant has sold all of the Shares, subject to
the conditions set forth below. If, at any time after the
expiration of effectiveness of the Registration Statement, the
Company participates (whether voluntarily or by reason of an
obligation to a third party) in the registration of any shares of
the Company's stock (other than a registration on Form S-4 or
Form S-8), the Company shall give written notice thereof to the
Consultant and the Consultant shall have the right, exercisable
within ten (10) business days after receipt of such notice, to
demand inclusion of all or a portion of the Consultant's
Remaining Shares in such registration statement. If the
Consultant exercises such election, the Remaining Shares so
designated shall be included in the registration statement at no
cost or expense to the Consultant (other than costs or
commissions which would be borne by the Consultant under the
terms of the Registration Rights Agreement were the Shares deemed
to be Registrable Securities under that agreement).
Notwithstanding the foregoing, the piggy-back registration rights
granted to the Consultant hereunder are subject to the right of
any future holder of registration rights to specifically exclude
any other securities of the Company from being included on a
registration statement filed for the benefit of such holder,
provided, that such exclusion shall exclude any other securities
of the Company that are not subject to registration rights which
specifically provide for such securities to be in the subject
registration statement."
5. Additional Compensation. In addition to the Consultant
Fee, the Company shall pay Consultant a retainer fee of $20,000,
payable in two $10,000 installments due upon the 30th day
following the effective date of the Registration Statement and on
the subsequent 30th day thereafter. Additionally, in the event
the Consultant directly or indirectly originates any transactions
contemplated by Section 1 hereof during the Term, the Company
shall pay fees to the Consultant to be mutually agreed upon.
6. Independent Contractor. At all times during the term of
this Agreement, Consultant is and shall be an independent
contractor in providing the Services hereunder, with the sole
right to supervise, manage, operate, control, and direct the
performance incident to the Services. Nothing contained in this
Agreement shall be deemed or construed to create a partnership or
joint venture, to create the relationships of employee/employer
or principal/agent, or otherwise create any liability whatsoever
as partner, joint venturer, employer, employee, principal, or
agent for either the Company or Consultant with respect to the
indebtedness, liabilities, or obligations of each other or of any
other person or entity.
7. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be
personally delivered, delivered by facsimile or courier service,
or mailed, certified with first class postage prepaid, to the
addresses set forth below:
(a) If to the Company, to:
Interactive Outdoors, Inc.
00 Xxxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Xx.
Facsimile Number: (000) 000-0000
Phone Number: (000) 000-0000
with a copy to:
Law Offices of Xxxxxx X. Xxxxxxxx, Esq., Ltd.
000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Facsimile Number: (000) 000-0000
Phone Number: (000) 000-0000
(b) If to Consultant, to:
Xxxxxxx.xxx, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx
Facsimile Number: (000) 000-0000
Phone Number: (000) 000-0000
Each such notice shall be deemed to have been given (whether
actually received or not) on the date of actual delivery thereof,
if personally delivered or delivered by facsimile transmission
(if receipt is confirmed at the time of such transmission by
telephone or facsimile machine-generated confirmation), or on the
third day following the date of mailing, if mailed in accordance
with this Section, or on the day specified for delivery to the
courier service (if such day is one on which the courier service
will give normal assurances that such specified delivery will be
made). Any notice, request, demand, or other communication given
otherwise than in accordance with this Section shall be deemed to
have been given on the date actually received. Any party may
change its address for purposes of this Section by giving written
notice of such change to all other parties in the manner
hereinabove provided.
8. Liability of Consultant. Consultant assumes no
responsibility under this Agreement other than to perform the
Services in good faith, and Consultant will not be responsible
for any consequences whatsoever that result from any action of
the Company in following or declining to follow any advice or
recommendation of Consultant, it being acknowledged and agreed by
the Company that Consultant's services provided under this
Agreement are consulting only and any and all decision-making
regarding the Company, including without limitation whether or
not to follow any advice by Consultant, is solely the
responsibility of the Company. Consultant will not be liable to
the Company except by reason of acts constituting bad faith of
Consultant or willful misfeasance or reckless disregard of its
duties. The parties hereto recognize and agree that the
effectiveness of the Services and the success of any actions
undertaken by Consultant in connection therewith are not
guaranteed or warranted by Consultant in any respect whatsoever.
9. Confidential Information.
(a) Anything herein to the contrary notwithstanding, the
Company will not intentionally provide Consultant with any
material non-public information, unless both (i) advising
Consultant in writing prior to such disclosure that the
information about to be provided constitutes material non-public
information and whether, when and by what means the Company
intends to make such information public and (ii) Consultant, in
its sole and absolute discretion, agrees in writing to receive
such information. In furtherance of the foregoing, and not in
limitation thereof, Consultant may agree in writing to receive
such information on the condition that the Company comply with
Regulation FD promulgated by the Securities and Exchange
Commission as if the provisions regarding Confidential
Information were not included in this Agreement and the
Consultant were not subject to any confidentiality requirements
(written, oral, implied, anticipated or otherwise) with respect
to such information.
(b) Provided Consultant has agreed to receive material non-
public information with respect to the Company in the manner
provided in subparagraph (a) of this Section 7 or the Company has
advised Consultant that the information to be provided is not
material non-public information with respect to the Company,
Consultant acknowledges that certain information that may be
disclosed to Consultant by the Company may be confidential,
proprietary, and secret in character. Consultant agrees that
such information will (i) be kept confidential by Consultant,
(ii) not be used by Consultant in any way detrimental to the
Company, and (iii) not be used other than in furtherance of the
Services to be provided under this Agreement.
(c) The term "Confidential Information" means any
information or knowledge that is not generally known to the
public that is disclosed or made known to the Consultant directly
or indirectly during the term of this Agreement (regardless of
the form in which communicated and including all notes,
memoranda, records, analyses, test results, surveys, applications
for governmental approvals, and other documents and items that
were prepared by the Consultant, other employees of the Company,
or other persons or entities acting at the behest of or in
conjunction with the Company that incorporate, embody, reflect,
describe, or otherwise relate to, in whole or in part, the oral
or written information made known to the Consultant).
Notwithstanding the foregoing, no item of information otherwise
included in the definition of "Confidential Information" shall be
deemed Confidential Information to the extent that it (i) is or
becomes publicly available through no fault or breach of this
Agreement, (ii) is disclosed in a non-confidential capacity by
the party which would have had the right to assert that such
information was Confidential Information, (iii) is lawfully
obtained or could be lawfully obtained from third parties without
breaching any provision of any non-disclosure agreement, (iv) is
information which is previously known or is developed by the
recipient independently of the disclosing party or (v) must be
disclosed pursuant to or as required or directed by law or by a
court or other tribunal of competent jurisdiction. "Confidential
Information" also does not include any business, industry or
other analysis previously made or subsequently developed by
Consultant that is not specific to the business activities of the
Company.
(d) The Company acknowledges that Confidential Information
is not necessarily material non-public information regarding the
Company and that the Consultant may, in good faith, determine
that any one or more items of Confidential Information,
individually or in the aggregate, do not constitute material non-
public information with respect to the Company.
10. Binding Effect. This Agreement shall be binding upon
Consultant and the Company and their respective successors,
assigns, and representatives.
11. Assignment. Except as contemplated by Section 3 hereof,
neither this Agreement nor the rights and obligations hereunder
may be assigned by operation of law or otherwise without the
express consent of the other party (which consent may be granted
or withheld in the sole and absolute discretion of such other
party).
12. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE
WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION
OR RULE (WHETHER OF THE STATE OF DELAWARE OR ANY OTHER
JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY
JURISDICTION OTHER THAN THE STATE OF DELAWARE.
13. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced
under any law or public policy, all other terms and provisions of
this Agreement will nevertheless remain in full force and effect.
Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties
hereto will negotiate in good faith to modify this Agreement so
as to effect the original intent of the parties as closely as
possible in an acceptable manner.
14. Counterparts. This Agreement may be executed in a number of
identical counterparts, each of which, for all purposes, is to be
deemed an original, and all of which constitute, collectively,
one agreement; but in making proof of this Agreement, it shall
not be necessary to produce or account for more than one such
counterpart.
15. Amendment. Neither this Agreement nor the rights and
obligations hereunder may be assigned by operation of law or
otherwise without the express written consent of the nonassigning
party (which consent may be granted or withheld in the sole and
absolute discretion of such party).
16. Entire Agreement. This Agreement (including any Exhibits
hereto and the documents delivered pursuant hereto) constitutes
the entire agreement of the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and
undertakings, both written and oral, among the parties hereto
with respect to the subject matter.
17. Headings. The various titles of the paragraphs, captions,
headings, and arrangements herein are used solely for
convenience, shall not be used for interpreting or construing any
word, clause, paragraph, or subparagraph of this Agreement, and
do not in any way affect, limit, amplify, or modify the terms
hereof.
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first above written.
THE COMPANY:
INTERACTIVE OUTDOORS, INC.
By: ____________________________________
Name: ______________________________
Title: _______________________________
CONSULTANT:
XXXXXXX.XXX, INC.
By:
____________________________________
Name:______________________________
Title:_______________________________
