EXHIBIT 10
CONSULTING AGREEMENT
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is made and entered into
this _1st ay of October, 2000 between Inc.ubator Capital, Inc. (the "Company"),
a Delaware corporation, and Xxxxxx Xxxxxx (the "Consultant").
In consideration of and for the mutual promises and covenants contained
herein, and for other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties agree as follows:
1. Purpose. Company hereby engages Consultant as an independent consultant (and
not as an agent, employee, partner or joint venturer) during the term specified
hereinafter to render consulting advice to Company upon the terms and conditions
as set forth herein.
2. Term. This Agreement will be effective for a period of twelve (12) months,
commencing on the date of this Agreement (the "Term"), provided that the Company
may terminate this Agreement at any time for any reason upon 30 days' prior
written notice to the Consultant; provided that the provisions of Sections 4 and
11-17 inclusive will survive termination of this Agreement.
3. Duties of Consultant.
(a) During the Term, Consultant will provide the Company with such consulting
advice as is reasonably requested by Company with respect to with respect to
financial planning and the development of a business plan as is reasonably
requested by Company. In performance of these duties, Consultant will provide
Company with the benefits of its reasonable judgment and efforts. Consultant's
duties will include, but will not necessarily be limited to the following:
(i) Advice regarding the existing and possible alternative financial structures
for the Company;
(ii) Advice regarding the formulation of business and financing goals and plans;
(iii) Advice concerning strategic issues, including alliance partnerships and
joint ventures;
(iv) Advice concerning short and long range financial planning;
(v) Advice regarding the implementation of the Company's goals and plans; and
(vi) Use of Consultant's reasonable best endeavors to comply with all reasonable
requests of the Company in relation to the performance of the duties of the
Consultant hereunder.
(b) In connection with rendering its advice hereunder, Consultant and its
employees and agents will be given reasonable access to Company's officers,
premises and records.
(c) Company acknowledges that Consultant's advice pursuant hereto does not and
will not constitute any guarantee or other assurance as to the ability of the
Company to accomplish any specific goals or plans of Company.
(d) Company acknowledges that Consultant retains the right to provide consulting
advice to other parties. Nothing herein contained will be construed to limit or
restrict Consultant in conducting such business with respect to others, or in
rendering advice to others or conducting any other business. During the Term the
Consultant will not, however, provide consulting advice in favor of any other
parties engaged in the same business as the Company without prior written
consent of the Company, other than to affiliates of the Company.
4. Compensation.
In consideration for Consultant agreeing to provide and providing the consulting
services to be rendered pursuant to this Agreement, the Company agrees, subject
to the applicable requirements of federal and state law of the United States and
of any regulatory authority therein, to issue to Consultant, 2,500,000 shares
[representing 9.9%] (the "Shares") of the Company's common stock. The Shares
will be issued to Consultant promptly following the execution of this Agreement
and the effectiveness of a Registration Statement on Form S-8 covering the
Shares, but in no event later than two weeks following the date hereof.
5. Expenses. The Company will pay or promptly reimburse Consultant for the
out-of-pocket expenses, including expenses for travel, lodging, and meals, which
(a) are incurred by Consultant in connection with the performance of services
under this Agreement, (b) the Company either (i) authorizes in advance and
confirms in writing or (ii) subsequently determines, in its sole discretion, to
be reasonable under the circumstances, (c) are identified in an invoice
submitted to the Company, and (d) are supported by receipts for individual
expense items of Twenty-Five Dollars ($25) or more.
6. Proprietary Information. Consultant agrees that, except as appropriate to
carry out its duties under this Agreement or as required by law (in the opinion
of Consultant's counsel), it will not use or disclose, without the Company's
prior consent, any information furnished or disclosed (whether before or after
the date hereof) to Consultant by the Company or its employees, agents or
representatives, including without limitation any of the Company's trade secrets
or other proprietary information or information concerning the Company's current
and any future proposed operations, services or products; provided that
Consultant's obligations of nonuse and nondisclosure under this provision will
not be deemed to restrict the use and/or disclosure of information that (a) is
or becomes publicly known or within the public domain without a breach of this
agreement, (b) Consultant can establish was known to it prior to its receipt
thereof, or (c) has been or is subsequently disclosed to Consultant by a third
person who is not under an obligation of confidence to the Company or any of its
affiliates.
7. Representations and Warranties of the Company. The Company represents and
warrants to Consultant as follows:
(a) The Company is a corporation duly incorporated, validly existing, and in
good standing under the laws of the State of Delaware and has all corporate
power and authority, and all corporate authorizations, necessary to enable it to
enter into this Agreement and carry out the transactions that are the subject of
this Agreement.
(b) This Agreement is a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms.
(c) When issued as provided in this Agreement, the Shares will be duly and
validly issued, fully paid and nonassessable, free and clear of any liens or
encumbrances, and will be free of restrictions on transfer.
(d) When issued as provided in this Agreement, the Shares will have been
registered with the Securities and Exchange Commission and qualified in the
State of California under the California Corporate Securities Laws of 1968, as
amended, or exempt from such qualification.
8. Representations and Warranties of the Company. The Consultant represents and
warrants to the Company that this Agreement is a valid and binding agreement of
the Consultant, enforceable against the Consultant in accordance with its terms.
9. Assignment. This Agreement and the rights hereunder may not be assigned by
either party (except by operation of law) without prior written consent of the
other party, but, subject to the foregoing limitation, this Agreement will be
binding upon and inure to the benefit of the respective successors, assigns and
legal representatives of the parties.
10. Notices and Other Communications. Any notice or other communication required
or permitted to be given under this Agreement must be in writing and will be
deemed effective when delivered in person or transmitted by a facsimile process
(with a prompt written confirmation) or, if outside the hours of 9:00 a.m. to
5:00 p.m. on any business day in the jurisdiction of the addressee, will be
deemed to be given at 9:00 a.m. on the next business day, or on the third
business day after the day on which mailed from within the United States of
America, to the following addresses (or to any other address subsequently
specified by the person to whom the notice or other communication is sent):
If to the Company:
Inc.ubator Capital, Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention:
Facsimile Number:
If to the Consultant:
Xxxxxx Xxxxxx
c/o Fontenelle LLC
000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx, Manager
Facsimile Number: (000) 000-0000
With a copy to:
Xxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx & Xxxxx
00000 X. Xxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile Number: (000) 000-0000
For the purposes of this Agreement, "business day" will refer to a day
in which trading banks are open for business.
11. Captions. The headings of the sections of this Agreement are intended solely
for convenience of reference and are not intended and will not be deemed for any
purpose whatever to modify or explain or place any construction upon any of the
provisions of this Agreement.
12. Attorneys' Fees. In the event any party hereto will institute an action to
enforce any rights hereunder, the prevailing party in such action will be
entitled, in addition to any other relief granted, to reasonable attorneys' fees
and costs.
13. Entire Agreement. This Agreement, together with the Warrant, constitute the
entire agreement between the parties hereto pertaining to the consulting
relationship of the parties and supersede all prior and contemporaneous
agreements and understandings of the parties, and there are no representations,
warranties or other agreements between the parties in connection with the
subject matter hereof except as specifically set forth herein. No supplement,
modification, amendment, waiver or termination of this Agreement will be binding
unless executed in writing by the parties hereto. No waiver of any of the
provisions of this Agreement will be deemed or will constitute a waiver of any
provision hereof (whether or not similar), nor will waiver constitute a
continuing waiver.
14. Indemnification by the Company and the Consultant.
(a) Consultant hereby agrees to indemnify and save Company and hold
Company harmless in respect of all causes of actions, liabilities, costs,
charges and expenses, loss and damage (including consequential loss) suffered or
incurred by the Company (including legal fees) arising from any willful or
grossly negligent act or omission of the Consultant or its employees, servants
and agents and /or arising from any material breach by Consultant or any of its
employees, servants and agents of any of the terms and conditions imposed on the
Consultant pursuant to this Agreement.
(b) Company hereby agrees to indemnify and save Consultant and hold
Consultant harmless in respect of all causes of actions, liabilities, costs,
charges and expenses, loss and damage (including consequential loss) suffered or
incurred by the Consultant (including legal fees) arising from any willful or
grossly negligent act or omission of the Company or its employees, servants and
agents and/or arising from material breach by Company or any of its employees,
servants and agents of any of the terms and conditions imposed on the Company
pursuant to this Agreement.
(c) No party will be liable to any other party hereunder for any claim
covered by insurance, except to the extent that the liability of such party
exceeds the amount of such insurance coverage. Nothing in this clause (c) will
be construed to reduce insurance coverage to which any party may otherwise be
entitled.
15. Severability. If any provision or portion of a provision of this Agreement
is held to be invalid, illegal or unenforceable under applicable law, that
provision or portion will be excluded from this Agreement, but only to the
extent of such prohibition or unenforceability, and the balance of the Agreement
will be interpreted as if that provision or portion were so excluded, and will
be enforceable in accordance with its terms.
16. Governing Law. This Agreement will be governed by, and construed under, the
laws of the State of California as applied to agreements among California
residents entered into and to be performed entirely within California.
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17. Counterparts. This Agreement may be executed in counterparts. All of such
counterparts will constitute one and the same agreement. The Company and
Consultant agree that facsimile signatures of this Agreement will be deemed a
valid and binding execution of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
this day and year first above written.
Company: Xxx.xxxxxx.xxx, Inc.
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Chief Executive Officer
Consultant:
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
