EXHIBIT 4.2
MANAGEMENT CONSULTING AGREEMENT
BETWEEN TECH SOLUTION(S), INC. AND XXX X. XXXXXXX
This Management Consulting Agreement (the "Agreement") is entered into
this 15th day of January 2004 by and between Tech Solution(s), Inc., a Delaware
corporation, having its principal place of business at 0000 Xxx Xxxxx Xxxxx,
Xxxx Xxxxx, Xxxxxxx 00000, (the "Company") and Xxx X. Xxxxxxx, an individual,
with an address at X.X. Xxx 000000, Xxxxx, Xxxxxxx 00000 (the "Consultant"), and
HY-Tech Technology Group, Inc. (also referred to herein as the "Parent") for
purposes of Paragraph 4, and also for guaranteeing the Company's full and timely
performance of the Agreement.
WHEREAS, the Company has engaged the Consultant, and desires to
continue to engage the Consultant, to advise the Company, and the Consultant
desires to accept such engagement, all upon the terms and subject to the
conditions contained in this Agreement, and
WHEREAS, the Parent and its subsidiaries have withdrawn from sales
through its retail stores in all locations except Fort Xxxxx, Florida and
Colorado Springs, Colorado, and the Parties have agreed to service and to
continue selling to the customers of those stores through the Consultant's
company, BCD2000, Inc.
NOW, THEREFORE, the parties hereto, in consideration of the mutual
consideration, and promises contained herein, and intending to be bound, agree
that the above recital is true and correct and further agree as follows:
1. APPOINTMENT. The Company hereby appoints Consultant, and the
Consultant agrees to serve as a consultant to the Company, all upon the terms,
and subject to the conditions of this Agreement.
2. TERM. The term of this Agreement shall begin on the date first set
forth above and shall continue until March 30, 2004.
3. DUTIES OF CONSULTANT. The Consultant shall continue to advise the
Company regarding the technical, functional, business, and marketing aspects of,
and the use of, the e-commerce website located at xxxx://xxx.x-xxxxxx.xxx/ (or
otherwise) which BCD2000, Inc. owns and operates. The Consultant shall render
such advice and assistance as the Company may reasonably request of him pursuant
to such duties and in accordance with the past practices and consulting services
that the Consultant has rendered to the Company over the past approximately
three months prior to the date of this Agreement. The Consultant shall also
agree to offer sales positions and certain administrative independent contractor
positions to selected former employees of the Parent or its subsidiaries, (see
Exhibit A). These individuals shall be paid on a commission basis, unless
otherwise agreed. The sales generated by those individuals, and/or by any
customer of the Company, its Parent or any subsidiary (HYTT Sales), whether
through the BCD2000 or Hy-Tech websites, shall accrue to the benefit of the
Company and shall be included in consolidated results of the Parent. The Company
shall be paid 10% of the gross margin of all HYTT Sales. Nothing contained in
this Agreement shall prohibit or restrain the business of the Consultant, the
business of BCD2000, Inc., or E-company In A Box, Inc.
4. COMPENSATION. The Company and the Parent represent and warrant to
the Consultant that the Company has, prior to execution of this Agreement, been
issued free and clear of all liens, claims, and encumbrances the Shares, as
defined herein. In consideration of, and in full payment for, the entering into
this Agreement, and in lieu of any cash payments from the Company to the
Consultant in connection with his duties contemplated under this Agreement, the
Company hereby agrees to pay Consultant Two Million Eight Hundred Thousand
(2,800,000) shares (the "Shares") of the Company's parent, Hy-Tech Technology
Group, Inc.'s (the "Parent"), a Delaware corporation, common stock, $.001 par
value per share. The Company is a wholly owned subsidiary of the Parent. The
Parent has issued the Shares to the Company, and the Company shall transfer the
Shares to the Consultant on or before Friday, January 16, 2003 and that prior to
issuance and transfer of the Shares, the Parent shall file a registration
statement on Form S-8 registering all of the Shares with the Securities and
Exchange Commission so that the Consultant shall be permitted to sell such
Shares without the need for another registration or an exemption. The Shares
shall be issued, transferred, and delivered without a restrictive legend, via
FedEx for receipt on or before Friday, January 16, 2003, to Xxx & Xxxxxx
Xxxxxxx, 000 Xxxxx Xxxxx Xxx, Xxxxxxxxx, XX 00000. The Company and the Parent
represent and warrant to the Consultant that the Parent has, and will also have
upon filing, full right and power to prepare and file the Form S-8 covering the
Shares, and such is not, and shall not be, in contravention or breach of any
law, rule, regulation, nor any agreement or understanding, to which the Company
and/or the Parent is subject to or is a party to. The Company and the Parent
represent and warrant to the Consultant that upon transfer to the Consultant and
also upon the registration of the Shares on Form S-8, and thereafter, that the
Shares shall be free and clear of all liens, claims, restrictions, and
encumbrances, whatsoever, and shall also be freely tradable, and not be deemed
restricted nor control shares as such terms are used under the Securities Act of
1933, as amended, and the rules thereunder, and that therefore the Shares may be
sold on the open market at any time and need not be sold subject to the
provisions of Rule 144 under the Securities Act of 1933, as amended.
Furthermore, the Parent's counsel shall instruct its transfer agent to permit
all such transfers, issuances, and deliveries of the Shares contemplated by this
Agreement or as directed by the Consultant, and shall prepare any and all
necessary legal opinions and other documents that the transfer agent may
require. The Consultant shall be responsible for any travel and other related
expenses incurred by Consultant in connection with the performance of his
consulting duties hereunder, unless otherwise approved in writing in advance by
the Company.
5. STATUS AS INDEPENDENT CONTRACTOR. The parties intend and acknowledge
that the Consultant is acting as an independent contractor and not as an
employee of the Company. The Consultant shall have full discretion in
determining the amount of time and activity to be devoted to rendering the
services contemplated under this Agreement and the level of compensation to
Consultant is not dependent upon any preordained time commitment or level of
activity. The Company acknowledges that the Consultant shall remain free to
accept other consulting engagements of a like nature to the engagement under
this Agreement or otherwise. The Company acknowledges that the Consultant may
perform consulting services or other services to similar businesses in the same
markets that the Company operates in (or otherwise), that BCD2000, Inc. will not
be restrained in any manner in terms of its ability to conduct its business, and
that the Company waives any conflict of interest that may result from these
activities. Nothing in this Agreement shall be construed to create any
partnership, joint venture or similar arrangement between the Company and
Consultant or to render either party responsible for any debts or liabilities of
the other.
6. CONFIDENTIALITY.
(a) The Consultant acknowledges that in connection with the
services to be rendered under this Agreement, the Consultant may be provided
with confidential business information of the Company. The Consultant agrees to
keep any information or materials, specifically designated in writing by a
responsible officer of the Company as confidential (for purposes of this
Paragraph 6 (a), the "Confidential Information") in confidence and shall not to
intentionally or knowingly disclose any such Confidential Information to any
person, firm, or other business entity, except if compelled by law or judicial
process, or to those employees, consultants, agents, or independent contractors
of, the Company or Consultant as shall be necessary or advisable for the
carrying out of the purposes of this Agreement and who are under a similar
obligation of confidentiality.
(b) The Company acknowledges that the Consultant is, in
rendering the services to be provided herein, utilizing information and
materials that are proprietary to the Consultant, and/or the businesses the
Consultant is involved in such as BCD2000, Inc. and E-company In A Box, Inc.,
and that this includes, but is not limited to, the information and materials
found at xxxx://xxx.x-xxxxxx.xxx/ (or otherwise), and any webpages in connection
therewith, (for purposes of this Paragraph 6(b), the "Confidential
Information"), such Confidential Information shall be excluding any customer
information provided by the Company in connection therewith, and any marketing
materials provided by the Company thereto, the Company's strategic business
plans, corporate strategy, and the Company's registered trademarks. The Company
acknowledges that any such Confidential Information will remain the property of
the Consultant and the Company shall treat all such information as Confidential
Information of the Consultant and or the Consultant's businesses, as the case
may be, and will not disclose, disseminate, or use, any such Confidential
Information to any person, firm or other business entity except to those
employees, consultants or other independent contractors of the Company or
Consultant as shall be necessary or advisable for the carrying out of the
purposes of this Agreement and who are under a similar obligation of
confidentiality.
7. INDEMNIFICATION. The Company shall indemnify the Consultant for any
loss, damage, expenses, claims or other liabilities (including, without
limitation, attorneys' fees, and costs) resulting from a breach or alleged
breach of any of the representations, and warranties of the Company, or the
failure of the Company to perform any of its obligations, contained in this
Agreement.
8. AMENDMENTS, MODIFICATIONS, WAIVERS, ETC. No amendment, or
modification, to this Agreement, nor any waiver of any term or provision hereof,
shall be effective unless it shall be in a writing signed by the party against
whom such amendment, modification or waiver shall be sought to be enforced. No
waiver of any term or provision shall be construed as a waiver of any other term
or condition of this Agreement, nor shall it be effective as to any other
instance unless specifically stated in a writing conforming with the provisions
of this Paragraph 8.
9. SUCCESSORS AND ASSIGNS. This Agreement shall be enforceable against
successors in interest, if any, to the Company and the Consultant. Neither the
Company nor the Consultant shall assign any of their respective rights or
obligations hereunder without the written consent of the other in each instance.
10. NOTICES. Any notices required or permitted to be given under this
Agreement shall be effective upon receipt at the respective addresses in the
specified above in this Agreement unless the address for notice to either party
shall have been changed by a notice given in accordance with this Paragraph 10.
11. GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the substantive laws of the State of Delaware for contracts
executed therein, and without regard for principals of conflicts of laws.
12. TIME OF ESSENCE. Time is of the essence in this Agreement.
12. ATTORNEYS'S FEES. In the event of any litigation related to, or in
connection with, this Agreement, and the Consultant is the prevailing party, the
Consultant shall be entitled to reasonable attorneys' fees and costs.
IN WITNESS WHEREOF, the parties hereto have set their respective hands
as of the date first above written.
TECH SOLUTION(S), INC.
By: /s/ Xxxx XxXxxx
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Xxxx XxXxxx, President
HY-TECH TECHNOLOGY GROUP, INC. (i.e. the Parent) HEREBY UNCONDITIONALLY
GUARANTEES THE COMPANY'S FULL AND TIMELY PERFORMANCE OF THIS AGREEMENT AND OF
ANY AND ALL OF THE COMPANY'S OBLIGATIONS HEREIN THIS AGREEMENT, AND ALSO JOINS
IN THIS AGREEMENT FOR PURPOSES OF PARAGRAPH 4.
HY-TECH TECHNOLOGY GROUP, INC.
By: /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx,
Chief Executive Officer
/s/Xxx X. Xxxxxxx
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Xxx X. Xxxxxxx
