EXH 10.41
CONSULTING AGREEMENT
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This Consulting Agreement (the "Agreement") is made and entered into this 10th
day of March 2003, by and between Stockbroker Associates Corporation, a Delaware
corporation ("Consultant" or "SAC") whose principle place of business is 0000 X
Xxxxxxxx Xxxx Xxxxx 000 Xxx Xxxxx, XX 00000 and Phone1Globalwide, Inc., a
Delaware corporation ("Client") whose principle place of business is 000 Xxxxx
Xxxxxxxx Xxxxxxxxx, 00xx Xxxxx, Xxxxx, XX 00000.
RECITALS
A. Consultant is engaged in the business of providing various consulting
and public relations services for and on behalf of clients whose
equity securities are publicly traded, including interactions with
broker/dealers, strategic communication programs, industry awareness,
marketing, and corporate fulfillment.
B. Client is a company with a class of equity securities that are
publicly traded on one or more markets or exchanges and Client desires
to retain Consultant as an independent consultant upon the terms and
conditions hereinafter set forth.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises and agreements set forth
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties agree as follows:
I. CONSULTING AND PUBLIC RELATION SERVICES
Client hereby retains Consultant as an independent consultant to Client and
Consultant hereby accepts and agrees to such retention. Subject to the terms and
conditions of this Agreement, Consultant shall provide to Client such services
of an advisory and consultative nature, as more fully described below, so as to
develop market awareness, inform the brokerage community about Client and its
operations, provide financial public relations and communicate promotional
matters related to Client and its business (the "Consulting Services").
The Consulting Services which Consultant shall provide to Client are on a best
efforts basis. Consultant makes no representation, warranty or guarantee of any
particular outcome or success by reason of the Consulting Services or that the
Consulting Services will benefit Client. In performing the Consulting Services,
Consultant will:
a. Gather all publicly available information relating to Client
and confer with officers and directors of Client in an
effort to fully understand such information and the nature
of Client's business operations.
b. Consolidate and/or "repackage" the information obtained into
appropriate form for dissemination.
c. Distribute information concerning Client to registered
representatives of broker/dealer, and other persons, who
Consultant determines, in its sole discretion, are capable
of lawfully and effectively disseminating such information
to the general public.
d. Make available to the investment community, information
concerning Client through the Internet on a website
developed and maintained by Consultant.
II. TIME, MANNER AND PLACE PERFORMANCE
Consultant provides services similar to those provided for herein to other
publicly traded companies. Client agrees that Consultant does not and shall not
be required to devote its full time and efforts to Client. Consultant shall
devote such time to Client as is reasonable and necessary to provide the
Consulting Services to Client. Consultant shall be available for advice and
counsel to the officers and directors of Client at such reasonable and
convenient times and places as may mutually be agreed upon.
III. TERM OF THE AGREEMENT
The Term of this Agreement shall commence on the date hereof and shall continue
until the earlier of one year from the date hereof or until Client's securities
are approved for listing on the American Stock Exchange (AMEX) or NASDAQ stock
market (the "Term"). Thereafter, the Term of this Agreement shall continue on a
month-to-month basis and may be terminated effective the last day of the month
in which either party gives at least ten (10) days' prior written notice to the
other that it is terminating this Agreement. Notwithstanding the foregoing, the
Term shall be subject to prior termination as provided in Section XI of this
Agreement.
IV. COMPENSATION
In consideration of the Consulting Services to be provided to Client by
Consultant, Client hereby agrees to compensate Consultant at the rate of $75,000
per month, payable monthly, in advance. Notwithstanding the foregoing, Client
shall pay Consultant $225,000 at the time of execution of this Agreement,
receipt of which is hereby acknowledged, representing advance payment of the
first three months' of Consultant's services under this Agreement. Subject to
prior termination as provided in Section XI, commencing March 10, 2003, and
continuing on or before the same day of each month
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thereafter during the Term of this Agreement, Client shall pay Consultant the
$75,000 monthly fee.
V. EXPENSES
Client shall reimburse Consultant on demand for all extraordinary expenses and
other disbursements, including but not limited to, travel, entertainment,
mailing, printing and postage incurred by Consultant on behalf of Client in
connection with the performance of the Consulting Services pursuant to the
Agreement. Expenses and disbursements shall have Client's prior approval in
writing.
VI. WORK PRODUCT
Client acknowledges that in the course of performing under this Agreement,
Consultant, Consultant will be contacting various persons about Client. It is
agreed that Consultant retains all intellectual property rights with respect to
such contact list (the "Contact List") and all material specifically created or
developed by Consultant in connection with the Consulting Services performed for
Client (the "Materials"). Consultant hereby grants Client the right to use the
Materials (but not the Contact List) after their distribution solely for the
purpose of promoting Client to existing and prospective investors, but the
Contact List and Material shall be and remain the physical and intellectual
property of Consultant and all proprietary rights thereto shall remain with
Consultant. Consultant may not use any Materials bearing the name, trade marks,
logos or other proprietary marks of Client, except for the benefit of Client in
accordance with this Agreement, or with the prior written consent of Client.
VII. DISCLOSURE OF INFORMATION
In connection with the Consulting Services, Consultant may gain access to
Confidential Information (as hereinafter defined) of Client and/or its
affiliates. Confidential Information includes information communicated orally,
in writing, by electronic or magnetic media, by visual observation, or by other
means, and may be marked confidential or proprietary, or bear a marking of like
import, or which Client or its affiliate states to be Confidential or
proprietary, or which would logically be considered confidential or proprietary
under circumstances of its disclosure known to Consultant.
Consultant acknowledges and understands that (i) Confidential Information
provides Client and its affiliates with a competitive advantage (or that could
be used to the disadvantage of Client and its affiliates by a competitor), (ii)
Client and its affiliates have a continuing interest in maintaining the
confidentiality of Confidential Information and (iii) Client and its affiliates
have a compelling business interest in preventing unfair competition stemming
from the use or disclosure of Confidential Information. Moreover, Consultant
acknowledges that customers of Client and/or its affiliates entrust Client and
its affiliates with responsibility for acquiring knowledge relating to aspects
of their customers' businesses, with the expectation that Client and its
affiliates will hold all such knowledge, including in some cases the fact that
they are doing business with Client and
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its affiliates, and the specific transactions in which they are engaged, in the
strictest confidence ("Customer Confidences").
For purposes hereof, "Confidential Information" includes, but is not limited to
information pertaining to business plans, joint venture agreements, licensing
agreements, network configuration, financial information, contracts, customers,
Customer Confidences, personal information about employees and the terms of
their relationships with Client, products, trade secrets, specifications,
designs, plans, drawings, software, data, prototypes, processes, methods,
research, development or other information relating to the business activities
and operations of Client and/or its affiliates.
Consultant agrees to keep Confidential Information confidential and, except as
authorized by Client or its affiliate, in writing, Consultant shall not,
directly or indirectly, use Confidential Information for any reason except to
perform its obligations under this Agreement. No other rights or licenses, to
trademarks, inventions, copyrights, patents or any other intellectual property
rights are implied or granted under this Agreement or by the conveying of
Confidential Information to Consultant.
Consultant shall restrict disclosure of Confidential Information to its own
employees with a "need to know" (i.e., employees that require the Confidential
Information to perform their responsibilities in connection with this Agreement)
and not disclose it to any other person or entity without the prior written
consent of Client or its affiliate. Consultant shall use Confidential
Information only for purposes of performing under this Agreement, and shall
advise those employees who access the Confidential Information of their
obligations with respect thereto. Further, Consultant shall copy Confidential
Information only as necessary, and ensure that all confidentiality notices are
reproduced in full on such copies.
The restrictions in this Section shall not apply to any Confidential Information
if Consultant can demonstrate that the Confidential Information:
a. is or becomes available to the public through no breach of this
Agreement;
b. was previously known by Consultant without any obligation to hold it
in confidence;
c. is received from a third party free to disclose such information
without restriction;
d. is independently developed by Consultant without the use of the
Confidential Information;
e. is approved for release by written authorization of Client;
f. is required by law or regulation to be disclosed, but only to the
extent and for the purposes of such required disclosure; or
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g. is disclosed in response to a valid order of a court or lawful request
of a governmental agency, but only to the extent of and for the
purposes of such order or request, provided that Consultant notifies
Client of the order or request ten days prior to disclosure and
permits Client and/or its affiliate to seek an appropriate protective
order.
VIII. NATURE OF RELATIONSHIP
Nothing in this Agreement shall render any party a general partner of the other.
Except as set forth in this Agreement neither party is nor shall be a general
agent for the other and neither party is given authority to act on behalf of the
other. Consultant is retained by Client in an independent capacity and
Consultant shall not enter into any agreement or incur any obligation on behalf
of Client without its prior written consent.
IX. CONFLICT OF INTEREST
This Agreement is non-exclusive. Consultant shall be free to perform services
for other companies and persons. Consultant will use its best efforts to avoid
conflicts of interest. Client agrees that it shall not be a conflict of interest
that Consultant devotes time and resources to companies and persons other than
Client. In the event that Consultant believes a conflict of interest arises
which may affect the performance of the Consulting Services for Client,
Consultant shall promptly notify Client of such conflict. Upon receiving such
notice, Client may terminate this Agreement pursuant to Section XI.
X. INDEMNIFICATION
a. Client agrees to indemnify and hold harmless Consultant and each
officer, director and controlling person of Consultant against any
losses, claims, damages, liabilities and/or expenses (including any
legal or other expenses reasonably incurred in investigating or
defending any action or claim in respect thereof) to which Consultant
or such officer, director or controlling person may become subject,
including under the Securities Act of 1933 as amended (the "Securities
Act") or the Securities Exchange Act, as amended (the "Exchange Act"),
to the extent caused by (i) actions of Client, (ii) the Information
Package, (iii) Client SEC Reports (as hereinafter defined), (iv)
materials provided to Consultant by Client for use by Consultant in
its performance under this Agreement or (v) the breach of any
representation, warrant or covenant of Client under this Agreement.
b. Consultant agrees to indemnify and hold Client and each officer,
director and controlling person of Client against any loses, claims,
damages, liabilities and/or expenses (including any legal or other
expenses reasonability incurred in investigating or defending any
action or claim in respect thereof) to which Client or such officer,
director or controlling
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person may become subject, including under the Securities Act or the
Exchange Act, to the extent caused by (i) actions of Consultant or its
agent (s) or (ii) the breach of any representation, warrant or
covenant of Consultant under this Agreement.
XI. TERMINATION
Notwithstanding Section III of this Agreement, this Agreement may be terminated:
a. By Client upon 15 days prior written notice to Consultant for any
reason or for no reason. Any compensation earned by Consultant under
this Agreement through the termination date shall be paid by Client to
Consultant.
b. By Client, immediately upon notice to Consultant if (i) Consultant
performs acts or services in violation of any law, rule, regulation,
policy or order of any federal or state regulatory agency, or (ii)
Consultant distributes information not provided to it or authorized in
writing by Client which contains material misrepresentations or
material omissions.
c. By Consultant upon 10 days prior written notice to Client in the
event;
(1) Client fails to timely pay any compensation or expense
reimbursement to Consultant within seven days of when due,
(2) Client requests Consultant to perform acts or services in
violation of any law, rule, regulation, policy or order of any
federal or state regulatory agency,
(3) Client provides information to Consultant for public
distribution, which contains material representations or material
omissions,
(4) Client distributes to the public information containing material
misrepresentations or omissions, or
(5) Client is engaging in conduct in violation of any law, including
rules, regulations, orders and policies of any federal or state
regulatory agency.
In the event of termination by Consultant pursuant to the provisions of
this subparagraph, all earned but unpaid compensation up to the date of
termination shall be paid by Client to Consultant.
XII. REPRESENTATIONS, WARRANTIES AND COVENANTS
a. Client represents and warrants to SAC that:
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(1) Organization. Client is a corporation duly organized, validly
existing and in good standing under the laws of the State of its
incorporation and it is duly qualified to do business as a
foreign corporation in each jurisdiction in which it owns or
leases property or engages in business.
(2) Formal Action. Client has the corporate power and authority to
execute and deliver this Agreement and to perform each of its
obligations hereunder and this Agreement has been duly approved
by Client's Board of Directors. (3) Valid and Binding Agreement.
This Agreement has been duly executed and delivered by Client and
is the valid and binding obligation of Client enforceable against
it in accordance with its terms, except as enforcement may be
limited by principles of equity and laws generally affecting the
rights of creditors.
(4) No Violation. The execution, delivery and performance of this
Agreement does not and will not violate any provisions of the
charter or bylaws of Client or any agreement to which Client is a
party or any applicable law or regulation or order or decree of
any court, arbitrator or agency of government and no action of,
or filing with, any governmental or public body or authority is
required in connection with the execution, delivery or
performance of this Agreement.
(5) Accuracy of Information. The information furnished in writing by
Client to SAC regarding the business, operations, financial
condition, including financial statements, business plans and
biographical information regarding Client's directors and
officers (collectively referred to as the "Information Package")
is complete and accurate in all material respects and does not
contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the
circumstances under which they were made not misleading.
(6) SEC Reports. Client is required to file reports under Section
12(g) of the Exchange Act of 1934. Client has filed all reports
required to be filed by it under the Exchange Act (the "Client
SEC Reports") and, to the best of Client's knowledge, Client SEC
Reports filed prior to the date hereof do not misrepresent a
material fact, omit a material fact or fail to state a fact
necessary to make the statements made therein, in light of the
circumstances under which they are made, not misleading.
b. SAC represents and warrants to Client that:
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(1) Organization. SAC is a corporation duly organized, validly
existing and in good standing under the laws of the State of its
incorporation and it is duly qualified to do business as a
foreign corporation in each jurisdiction in which it owns or
leases property or engages in business.
(2) Formal Action. SAC has the corporate power and authority to
execute and deliver this Agreement and to perform each of its
obligations hereunder and, to the extent required, this Agreement
has been duly approved by SAC's Board of Directors.
(3) Valid and Binding Agreement. This Agreement has been duly
executed and delivered by SAC and is the valid and binding
obligation of SAC enforceable against it in accordance with its
terms, except as enforcement may be limited by principles of
equity and laws generally affecting the rights of creditors.
(4) No Violation. The execution, delivery and performance of this
Agreement does not and will not violate any provisions of the
charter or bylaws of SAC or any agreement to which SAC is a party
or any applicable law or regulation or order or decree of any
court, arbitrator or agency of government and no action of, or
filing with, any governmental or public body or authority is
required in connection with the execution, delivery or
performance of this Agreement.
(5) Licenses and Permits. SAC has all requisite licenses and permits
in order for it to perform the Consulting Services and receive
its compensation under this Agreement.
c. Client hereby covenants and agrees with SAC that:
(1) The information to be provided by Client to SAC under this
Agreement will be true, complete and accurate in all material
respects, and will not misrepresent a material fact, omit a
material fact or fail to state a fact necessary to make the
statements made therein, in light of the circumstances under
which they are made, not misleading.
(2) Client SEC Reports will comply with the requirements of the
Exchange Act, will be true, complete and accurate in all material
respects, will not misrepresent a material fact, omit a material
fact or fail to state a fact necessary to make the statements
made therein, in light of the circumstances under which they are
made, not misleading.
(3) Client agrees to promptly advise SAC in writing of any condition,
event, circumstance or act that would make any of the information
contained in Client SEC Reports or the Information Package or in
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any report or other document prepared by SAC for and on behalf of
Client (to the extent known to Client), misleading in any
material respect. Client hereby agrees that SAC and its
directors, officers, agents and employees may rely on the
Information Package and on all other information furnished by
Client until SAC is advised in writing by an authorized
representative of Client, or otherwise becomes aware, that the
information being relied upon by SAC is inaccurate or incomplete
in any material respect.
(4) SAC Reliance on Client's Full Disclosure. Client will provide, or
cause to be provided, to SAC all financial and other information
reasonably requested by SAC for the purpose of rendering its
services pursuant to this Agreement. Client recognizes and
confirms that SAC will use such information in performing the
services contemplated by this Agreement without independently
verifying such information and that SAC does not assume any
responsibility to Client for the accuracy or completeness of such
information. The persons executing this Agreement on behalf of
Client certify that there is no fact known to them which
materially and adversely affects or may (so far as Client's
senior management can now reasonably foresee) materially and
adversely affect the business, properties, condition (financial
or other) or operations of Client which has not been set forth in
Client SEC Reports or otherwise in written form delivered by
Client to SAC.
d. SAC hereby covenants and agrees with Client that:
(1) Consultant will comply with all applicable laws and rules and
regulations of the Securities and Exchange Commission and all
other laws, rules and regulations to which its activities are
subject. In performing its services, Consultant will not use "fax
blasting", "e-spam" or other similar methods of mass contact.
(2) Consultant will not enter into an agreement or understanding,
written or oral, that binds Client to any third party.
(3) Consultant will not divulge Confidential Information without the
prior written consent of Client.
(4) Consultant will cease disseminating any information concerning
Client, (a) known by Consultant to be inaccurate in any material
respect, or (b) which Client directs Consultant to cease
disseminating.
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(5) Consultant will not disseminate any information about Client not
contained in a Client SEC Report or the Information Package,
except to the extent authorized in writing by Client.
(6) Consultant will not post any information on its Web site
concerning Client unless such information is contained in a
Client SEC Report, or Client has provided its prior written
consent.
(7) Neither Consultant nor any of its officers, directors, employees
or agents shall, directly or indirectly, buy, sell or otherwise
engage in trading activities with respect to Client's securities.
(8) Neither Consultant nor any of its officers, directors, employees
or agents shall recommend the purchase or sale of securities of
Client to the general public. The foregoing shall not preclude
Consultant from recommending the purchase of Client's securities
to licensed brokers and/or dealers provided that (A) any such
recommendation is accompanied or preceded by full written or
electronic disclosure about Client, (B) disclosure of
Consultant's compensatory arrangements with Client is made at the
time the recommendation is made and (C) the broker and/or dealer
is advised that the recommendation is that of Consultant, not
Client, is based upon Consultant's analysis of the Company
following its review of the Client SEC filings, and is not based
upon confidential or non-public information.
(9) In the event Consultant receives a request for information
concerning Client from a member of the general public,
Consultant's sole activities shall consist of forwarding written
information, consistent with the terms and conditions of this
Agreement, along with a referral to a licensed securities
professional whom the inquirer can contact for further
information. Neither Consultant nor any of its officers,
directors, employees or agents shall accept any form or
compensation or remuneration in connection with such referral.
XIII. NOTICES
Any notices required or permitted to be given under this Agreement shall be
sufficient if in writing and delivered via FAX, to the FAX number set forth
below, or if sent by registered or certified mail, return receipt requested, to
the address set forth below.
a. If to Consultant:
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Stockbroker Associates Corporation
0000 X Xxxxxxx Xxxx Xxx 00-000
Xxx Xxxxx, XX 00000
Fax: (000) 000 0000
b. If to Client:
Phone1Globalwide, Inc.
Xxxxx Xxxxxxxxx
000 Xxxxx Xxxxxxxx Xxxxxxxxx
00xx Xxxxx, Xxxxx 0000
Xxxxx, XX 00000
Fax: (000) 000 0000
XIV. ASSIGNMENT
Neither party to this Agreement may assign its rights or obligations hereunder
without the prior written consent of the other party to this Agreement.
XV. APPLICABLE LAW
This Agreement shall be interpreted and construed in accordance with and
pursuant to the laws of the State of Nevada.
XVI. ARBITRATION
Any controversy or claim arising out of or related to this Agreement, or the
breach thereof, shall be settled by arbitration administrated by the American
Arbitration Association under its Commercial Arbitration Rules, with the
arbitration proceeding and any hearing thereon be held (a) in Las Vegas, Nevada,
in the event any such proceeding is initiated by Client and (b) in Miami,
Florida, in the event such proceeding is initiated by Consultant. Judgment on
the award rendered by the arbitrator (s) may be entered in any court having
jurisdiction thereof.
XVII. SEVERABILITY
The provisions contained herein are severable and in the event any of them shall
be held invalid, the Agreement shall be interpreted as if such invalid
provisions were not contained herein.
XVIII. ENTIRE AGREEMENT
This entire Agreement constitutes and embodies the entire understanding and
agreement of the parties and supersedes and replaces all prior understandings,
agreements and negotiations of the parties. This Agreement may not be modified,
except in writing and signed by all parties hereto.
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XIX. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall constitute
and be deemed an original, but both of which taken together shall constitute to
one and the same document.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Agreement the day and year first above written.
CONSULTANT:
STOCKBROKER ASSOCIATES CORPORATION
By: /s/ Xxxxxxx Xxxx
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Xxxxxxx Xxxx, CEO
CLIENT:
PHONE1GLOBALWIDE, INC.
By: /s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx, CEO
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