EXHIBIT 10.1
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CONSULTING AGREEMENT
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THIS AGREEMENT is made this 9th day of March 1999, between X. X. Xxxx Inc., a
California corporation (hereinafter "XXXX"), and XXXXXXXXXX.XXX, Inc., a Florida
corporation (hereinafter "TMAN").
RECITALS
A. TMAN wishes to retain XXXX to provide advisory/business
development services.
X. XXXX is willing to provide such services as are more fully
described herein.
NOW THEREFORE, in consideration of the mutual promises contained herein, it is
agreed as follows:
1. FURNISHING OF INFORMATION BY TMAN: TMAN shall furnish to XXXX information
such as copies of disclosure and filing materials, financial statements,
business plans, promotional information and background of TMAN's officers
and directors ("Information Package"). TMAN shall update the Information
Package on a continuous basis. TMAN understands that the sole purpose for
providing XXXX with the Information Packages is for utilization in a
management advisory service capacity. XXXX is not obligated to assess the
financial viability of TMAN. XXXX can only rely on, and assume the
accuracy of the Information Package provided.
2. REPRESENTATIONS AND WARRANTIES OF TMAN: TMAN represents that all
information included in the Information Package furnished to XXXX shall
disclose all material facts in order for XXXX to perform appropriate due
diligence and shall not omit any facts necessary to make statements on
behalf of TMAN. The parties warrant to each other that they each have
full power and authority to execute this Agreement for and on behalf of
themselves and/or their respective companies.
3. COVENANTS OF TMAN: TMAN covenants and warrants that any information
submitted shall be truthful, accurate, in compliance with all copyright
and all other applicable laws and regulations and will not be submitted
in connection with any improper or illegal acts or deeds.
4. DUTIES: Based on the Information Package, XXXX will perform the services
and for a period of time more fully described in Exhibit "A" pursuant to
the terms hereof, which services shall include XXXX performing management
advisory services on behalf of TMAN in introducing it to multiple
business opportunities.
5. RELATIONSHIP OF THE PARTIES: XXXX and TMAN shall each appoint a
designated representative. Said designated representative shall be the
contact person for all matters relating to this service Agreement.
6. COMPENSATION: As remuneration for services performed pursuant to this
Agreement, a 25,000 shares of free-trading common stock of TMAN will be
issued to XXXX, as well as an additional 25,000 restricted shares of TMAN
common stock, according to the terms outlined in Exhibit A.
a. It is understood and agreed by the Parties that the above
compensation should be handled in a timely manner upon execution
of this Agreement. The stock certificates will be shipped to
XXXX within thirty (30) days from both parties signing this
Agreement.
b. The restricted shares acquired under this Agreement shall be
registered no later than the anniversary date of the Agreement,
or by way of a Piggyback Registration, whichever is earlier.
These restricted common shares fall under the registration
requirements pursuant to Rule 144 of the Securities Act.
c. This represents the entire Agreement between XXXX and TMAN with
regards to compensation. No cash compensation shall be made to
XXXX by TMAN for any expenses incurred by XXXX on behalf of
TMAN, pursuant to this Agreement.
7. ASSUMPTION OF LIABILITY AND INDEMNIFICATION: TMAN assumes and claims all
responsibility and liability for the content of all information
disseminated on behalf of TMAN which has been approved by TMAN. TMAN
shall indemnify and hold XXXX harmless from and against all demands,
claims or liability arising for any reason due to the context of
information disseminated on behalf of TMAN. This indemnity shall include
any costs incurred by XXXX including, but not limited to, legal fees and
expenses incurred both in administrative proceedings, at trial and
appellate levels, in settlement of claims and payment of any judgement
against XXXX. XXXX will also be held responsible for any material
omissions or inaccuracies caused by any of their employees or agents
with regard to TMAN, and XXXX will indemnify TMAN for any actions
brought against TMAN resulting from such omissions or inaccuracies which
were directly or indirectly caused by XXXX relevant to this Agreement.
8. FORCE MAJEURE: If XXXX'x performance of this Agreement or any obligation
hereunder is prevented, restricted, or interfered with by causes beyond
its reasonable control including, but not limited to, acts of God, fire
explosion, vandalism, cable out, storm, or other similar occurrence, any
law, order, regulation, direction, action or request of the United States
(or any governments) or state or local governments or of any one or more
said governments, or of any civil or military authority or by national
emergency, insurrection, war strike, lookout or work stoppage or other
labor difficulties, supplier failure shortage, breach or delay, then XXXX
shall be excused from such performance on a day-to-day basis to the
extent of such restriction or interference. XXXX shall use reasonable
efforts under the circumstances to avoid or remove such causes or
nonperformance and shall proceed to perform with reasonable dispatch
whenever such causes are removed.
9. TERMINATION FOR CAUSE: Both parties further agree that either party may
terminate this Agreement without recourse if one of the parties is found
to be in violation of rules promulgated by any United States regulatory
agency or of any state regulatory agency. TMAN also has the same recourse
if XXXX fails to use the information provided and approved by TMAN.
Illegal activity shall include but not be linked to: the release of false
press releases or the payment of any securities or money to brokers. In
the event of such action, XXXX will be entitled to retain only a
pro-ration of any compensation paid.
10. ASSIGNMENT AND DELEGATION: Neither party may assign any rights or
delegate any duties hereunder without the other party's express prior
written consent. This Agreement shall benefit solely the named parties
and no other person shall claim, directly or indirectly benefit
hereunder, express or implied, as a third party beneficiary or otherwise.
Wherever in this Agreement a party is named or referred to, the
successors (including heirs and personal representative of individual
parties) and permitted assigns of such party shall be deemed to be
included, and all agreements, promises, covenants and stipulations in
this Agreement shall be binding upon and inure to the benefit of their
respective successors and permitted assigns.
11. NON-CIRCUMVENTION: TMAN further agrees:
(a) That any information leading to the identification of buyer,
seller, agent, associate, contact, investor, lender, parallel
company or corporation or their representative, or any entity that
has or is about to supply or purchase, or act as agent, or contact
in any business opportunity sales or purchase, either directly, or
indirectly through either party, shall be considered the permanent
account or trade secret of the introducing Party, and the
disclosing Party shall be notified of and included in any future
sales, dealings, or commission agreements with the identified
person, firm, corporation or business opportunity or trade secret,
by separate agreement added to and made a part of this agreement.
(b) It is agreed that the introduction of prospective business
opportunities will be documented by letter, telex, fax or other
written instrument and the notified Party shall have ten (10)
business days from the date thereof to advise the disclosing Party
in writing, addressed to the disclosing Party's address below,
whether or not the other party is already conducting negotiations
with said person, firm, corporation or business opportunity or
trade secret.
(c) Both Parties agree not to circumvent the other in any dealings one
may have with the other, and agree to protect the confidentiality
of the information disclosed by the other in all present and
future dealings. No disclosure of the identity of a party
introduced by one party to the other shall be made, unless it is
expressly authorized in writing by the introducing Party.
(d) This Section (11) will survive the expiration of this Agreement
for a period of one (1) year from the date of its signing.
12. ENTIRE AGREEMENT: This writing contains the entire agreement of the
parties with respect to the subject matter hereof, superseding all prior
agreements, understandings, representations and warranties. No
representations were made or relied upon by either party, other than
those expressly set forth. Furthermore, TMAN understands that XXXX makes
no guarantees, assurances or representations in regard to the results of
its management advisory services. No agent, employee or other
representative of either party is empowered to alter any of the above
terms, unless done in writing and signed by an executive officer of the
respective parties.
13. SEVERABILITY: If any provision of this Agreement is held invalid,
unenforceable or void, the remainder of the Agreement shall not be
affected thereby and shall continue in full force and effect.
14. CONTROLLING LAW AND VENUE: This Agreement's validity, interpretation and
performance shall be controlled by and construed under the laws of the
State of Florida. The proper venue and jurisdiction shall be the Circuit
Court in Orange County, Florida.
15. PREVAILING PARTY: In the event of the institution of any legal
proceedings or litigation, at the trial level or appellate level, with
regard to this Agreement, the prevailing party shall be entitled to
receive from the non-prevailing party all costs, reasonable attorney's
fees and expenses.
16. FAILURE TO OBJECT NOT A WAIVER: The failure of either party to this
Agreement to object to, or to take affirmative action with respect to any
conduct of the other which is in violation of the terms of this Agreement
shall not be construed as a waiver of the violation or breach, or of any
future violation, breach or wrongful conduct.
17. NOTICES: All notices or other documents under this Agreement shall be in
writing and delivered personally or mailed by certified mail, postage
prepaid, addressed to the appropriate representative as follows:
XXXX: X.X. Xxxx, Inc.
000 X Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxx Xxxx, President
TMAN: XXXXXXXXXX.XXX
0000 Xxxxxxxxx Xxxxxxx Xxxxx #00
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxxxxx, CEO
18. HEADINGS: Headings in this Agreement are for convenience only and shall
not be used to interpret or construe its provisions.
19. TIME: For all intents and purposes, time is of the essence with this
matter. Transmission of faxed signatures are acceptable with hard copy to
follow. Once signed by XXXX and faxed back to TMAN will deem this
Agreement to be in full force and effect.
EXHIBIT "A"
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SPECIFIC XXXX SERVICES TO TMAN
DUTIES:
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During the term of this Agreement, XXXX shall consult with TMAN concerning
corporate/business development; those services to include, but not be limited
to:
1. The dissemination of information regarding the business of TMAN to
XXXX'x network of brokers;
2. Introducing TMAN to others who can affect and enhance the price
and volume of TMAN's publicly traded shares through strategic
alliance with either themselves and/or their organizations.
TERMS:
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The term of this Consulting Agreement shall be for a twelve (12) month period
commencing on the date hereof with a six (6) month minimum, subject to a
performance review by TMAN, and will continue thereafter until terminated by
TMAN with a thirty (30) day written notice to XXXX.
IN WITNESS WHEREOF, this Agreement is executed as of the date first above
written.
XXXXXXXXXX.XXX, INC. X. X. XXXX, INC.
By: /s/ Xxxx Xxxxxxxxxxx By: /s/ Xxxxx Xxxx
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Xxxx Xxxxxxxxxxx as CEO Xxxxx Xxxx as President
