Exhibit 10.1
CONSULTING AGREEMENT
This consulting agreement (the "Agreement"), made effective as of July
2nd, 2003 will confirm the understanding between Siricomm Inc., and its
affiliates and/or subsidiaries (collectively, the "Company") and CLX &
Associates, (`Consultant"), pursuant to which the Company has retained
Consultant in connection with (i) short and long term strategic planning; (ii)
short term crisis management; (iii) short and long term marketing; (iv) meeting
with/selecting qualified companies for joint business ventures; (v) contracting
and interviewing qualified accounting firms and legal counsel; (vi) recruitment
selection of key executives and staff; (vii) internet and website design; and
(viii) recommending and identifying of board members, with all such services
(the "Services") on the terms and subject to the condition set forth herein.
1. Retention. The Company hereby retains Consultant to provide the
Services. Consultant shall devote time and effort, as Consultant deems
necessary to provide the Services.
2. Further Agreements. This Agreement does not constitute any agreement
express or implied, on the part of Consultant or the Company or any
commitment by Consultant, or by the Company to engage Consultant to
underwrite, purchase, place, or cause the placement of any securities
or indebtedness or to advise the Company or negotiate on behalf of the
Company in connection with any sale of any securities or its business
or assets or in connection with any merger, consolidation or similar
transaction.
3. Compensation. Company will pay consultant for the services 200,000
shares of free trading stock.
4. Termination. The term of this Agreement shall be 6 months.
5. Indemnity. The Company agrees to indemnify the Indemnified Persons
(as defined in Schedule as set forth in Schedule A hereto, which
Schedule A is incorporated herein and made a part hereof.
6. Representations and Warranties of the Company. In addition to any
representations and warranties for which provision is made in any other
agreement between the Company and Consultant, the Company represents
and warrants to Consultant that at the commencement of the Services and
at the time of the provision of the Services during the term of this
Agreement:
(a) The Company will furnish Consultant and its agents and counsel
with all information concerning the Company that Consultant
and its agents reasonably deem appropriate and agrees to
provide Consultant and its agents with reasonable access to
the Company's officers, directors, accountants, counsel,
consultants and other appropriate agents and representatives.
The Company acknowledges the Consultant and its agents may
rely upon the completeness and accuracy of information and
data furnished to any of them by or on behalf of the Company
and that the Company will use its best efforts to ensure that
such information will not contain any untrue statement of a
material fact or omit to state a material fact necessary to
make the statements made therein, in light of the
circumstances under which they were made, not misleading.
(b) All payments of compensation to Consultant shall not cause the
Company to violate any law or regulation applicable to the
Company and that in the event payment is in the form of
securities or instruments convertible to securities, each
registration statement, preliminary and final prospectus
required to be filed or previously filed with the Securities
and Exchange Commission (the "Commission") pursuant to the
Securities Act of 1933, as amended, and each document required
to be filed or previously filed with the Commission pursuant
to the provisions of the Securities Exchange Act of 1934, as
amended, pertaining to any such securities or instruments
convertible into securities and each appendix, attachment,
amendment, or supplement to any of the foregoing and all
related documents, including but not limited to each related
letter of transmittal will not, and no other report, filing,
document, release or communication mailed, delivered,
published, or filed by or on behalf of the Company will,
contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made
therein, in light of the circumstances under which they were
made, not misleading; and
(c) This Agreement had been, and the Services contemplated hereby
at the time of the commencement and consummation thereof,
shall be duly authorized by the Company.
7. Certain Other Covenants of the Company. Other than to the Company's
representatives, the Company agrees that no advice or recommendations
rendered or summarized, excerpted from or otherwise referred to without
Consultant's prior written consent. In addition, other than to the
Company's representatives, Consultant may not be otherwise referred to
by the Company without Consultant's prior written consent or unless
required by law.
8. Survival of Certain Provisions. The compensation provisions
contained in paragraph 3 above, the indemnity contained in paragraph 5
hereof and the representations and warranties of the Company contained
in paragraph 6 hereof and this paragraph 8 shall remain operative and
in full force and effect regardless of (i) any investigation made by or
on behalf of Consultant, or by or on behalf of any Indemnified Person
(as such is defined in Schedule A hereto), and (ii) any termination or
expiration of this Agreement, and shall be binding upon, and shall
inure to the benefit of, any successors, assigns, heirs and personal
representatives of the Company, Consultant, and any and all Indemnified
Persons.
9. Notices. Notice given pursuant to any of the provisions of this
Agreement shall be in writing and shall be mailed or delivered (i) to
the Company at : 0000 Xxxxx Xxxx., Xxxxx 000, Xxxxxx, XX 00000 and (ii)
CLX & Associates, 0000 Xxxxx Xxx, Xxxxx, XX 00000.
10. Construction. This Agreement, including Schedule A hereto,
incorporates the entire understanding of the parties and supersedes all
previous agreements and shall be governed by, and constructed in
accordance with, the laws of the State of Florida as applied to
contracts made and performed in such State. The Company and Consultant
each hereby irrevocably submits to the exclusive jurisdiction of the
Federal and Florida State courts located in Miami-Dade County, Florida
in connection with any suit, action, or proceeding related to this
Agreement or any of the matters contemplated hereby, irrevocably waives
any defense of lack of personal jurisdiction and irrevocably agrees
that all claims in respect of any such suit, action or proceeding may
be heard and determined in any such court. The Company and Consultant
each irrevocably waives, to the fullest extent it may effectively do so
under applicable law, any objection which it may now or hereafter have
to the laying of venue of any such suit, action or proceeding brought
in any such court and any claim that any such suit, action or
proceeding brought in any such court had been brought in an
inconvenient forum. Each Indemnified Person (as defined in Schedule A
to this Agreement) is intended to be a third party beneficiary of the
provisions of paragraph 5 hereof and Schedule A. All obligations of the
Company hereunder and under Schedule A shall be joint and several
obligations of the Company and its affiliates and subsidiaries.
11. Severability. Any determination that any provision of this
Agreement (including any provision of Schedule A) may be, or is
unenforceable shall not affect the enforceability of the remainder of
this Agreement (including Schedule A)
12. Headings. The paragraph headings in this Agreement have been
inserted as a matter of convenience of reference and are not part of
this Agreement.
13. Counterparts. This Agreement may be executed in two or more
counterparts and by facsimile, each of which shall be deemed an
original, but all of which shall constitute one and the same
instrument.
14. Third Party Beneficiaries. This Agreement has been and is made
solely for the benefit of the Company and Consultant (including other
Indemnified Persons for purposed of paragraph 5 hereof and Schedule A
only) and Schedule A hereof and their respective successors and
assigns, and no other person shall acquire or have any right under or
by virtue of this Agreement.
15. Modification. This Agreement may not be modified or amended except
in writing, duly executed by the parties hereto. If the foregoing terms
correctly set forth our agreement, please confirm this by signing and
returning to Consultant a duplicate copy of this letter. Thereupon,
this letter, as signed in counterpart, shall constitute our agreement
on the subject matter herein.
CLX & Associates Inc.
By: /s/ Xxxxxx Xxxxxxxxxx
--------------------------------
Xxxxxx Xxxxxxxxxx, President
Confirmed and agreed to as of the date first above written:
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
Schedule A
Indemnity
This Schedule A is a part of and is incorporated into that certain
consulting agreement (the "Consulting Agreement" and together with this Schedule
A, the "Agreement"), Siricomm Inc., (collectively, the "Company") and CLX &
Associates, ("Consultant"). Capitalized terms used herein without definition
shall have the meanings ascribed to them in the Letter Agreement.
The Company agrees to indemnify and hold harmless Consultant, his
affiliates and their respective directors, officers, agents, and employees
(Consultant and each such entity or person are an "Indemnified Person" from and
against any losses, claims, damages, judgments, assessments, costs, and other
liabilities (collectively "Liabilities"), and will reimburse each Indemnified
Person for all reasonable fees and reasonable expenses (including the reasonable
fees and reasonable expenses of counsel at trial and on appeal (collectively,
"Expenses") as they are incurred in an investigating, preparing, pursuing, or
defending any claim, action, proceeding or investigation, whether or not in
connection with pending or threatened litigation and whether or not any
indemnified person is a party (collectively, "Actions"), caused by, arising out
of or in connection with the Company's breach of this Agreement including, but
not limited to the breach of any representation, warranty or term contained in
the Consulting Agreement, or services rendered or to be rendered by any
Indemnified Person pursuant to the Consulting Agreement. The Company will not be
responsible for any Liabilities or Expenses of any Indemnified Person that are
determined by a judgment of a court of competent jurisdiction which is no longer
subject to appeal or further review to have resulted solely from the gross
negligence, bad faith or willful misconduct of an Indemnified Person in
connection with any of the Services referred to in the Consulting Agreement. The
Company also agrees to reimburse each Indemnified Person for all Expenses as
they are incurred in connection with enforcing such Indemnified Person's rights
under this Agreement (including, without limitation, its rights under this
Schedule A) and the Consulting Agreement.
Upon receipt by an Indemnified Person of actual notice of an Action
against such Indemnified Person with respect to which indemnity may be sought
under this Agreement, such Indemnified Person shall promptly notify the Company
in writing; provided that failure so to notify the Company shall not relieve the
Company from any liability which the Company may have on account of this
indemnity or otherwise, except to the extent the Company shall have been
materially prejudiced by such failure. The Company shall, if requested by
Consultant or at the Company's option, assume the defense of any such Action
including the employment of counsel selected by the Company that is reasonably
satisfactory to Consultant. Notwithstanding the Company's option to assume a
defense of an Indemnified Person, any Indemnified Person shall have the right to
employ separate counsel in any such Action and participate in the defense
thereof, with the fees and expenses of such counsel shall be at the expense of
the Company. The Company shall not be liable for any settlement of any Action
effected without its prior written consent (which shall not be unreasonably
withheld). In addition, the Company will not, without prior written consent of
Consultant, settle, compromise or consent to the entry of any judgment in or
otherwise seek to terminate any pending or threatened Action in respect of which
indemnification or contribution may be sought hereunder (whether or not any
Indemnification Person is party thereto) unless such settlement, compromise,
consent or termination includes an unconditional release of each Undefined
Person from all Liabilities arising out of such Action.
The Company also agrees that no Indemnified Person shall have any
liability (whether direct or indirect, in contract or tort or otherwise) to the
company for or in connection with Services rendered or to be rendered by the
Indemnified Person pursuant to this Agreement. The transactions contemplated
hereby or any Indemnified Person's actions or inactions in connection with any
such Services except for Liabilities competent jurisdiction which is no longer
subject to appeal or further review to have resulted solely from the gross
negligence, bad faith, or willful misconduct of an Indemnified Person in
connection with such Services.
The reimbursement and indemnity obligations of the Company set forth
herein shall apply to any modification of this Agreement and the Consulting
Agreement and shall remain in full force and effect regardless of any
termination of, or the completion of any Indemnified Person's Services under or
in the connection with, this Agreement and the Consulting Agreement.
