EXHIBIT 10.9
CONSULTING AGREEMENT
THIS AGREEMENT, made and entered into, and effective this 16th day of
August, 2006 (the "Effective Date"), by and between SOS RESOURCE SERVICES INC.,
A FLORIDA CORPORATION with its principal place of business at 000 X. Xxxx
Xxxxxx, Xxxx Xxxxxxxxx, XX 00000 (hereinafter referred to as "Consultant"), and
INCOMM HOLDINGS, CORP. with its principal place of business at 0000 Xxxx
Xxxxxxxxxx Xxxx., Xxxxx 000, Xxxx Xxxxxxxxxx, Xxxxxxx 00000 (hereinafter
referred to as "Corporation").
WITNESSETH:
WHEREAS, the Corporation is desirous of retaining the Consultant for
the purpose of corporate planning; and
WHEREAS, Consultant desires to provide such consulting services for the
Corporation as an independent contractor, with the understanding that he shall
not be required to devote his full time to the business of the Corporation and
shall be free to pursue other personal and business interests.
NOW, THEREFORE, in consideration of the premises, the mutual convenants
of the parties herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by each of the parties
hereto, it is agreed as follows:
1. CONSULTING ARRANGEMENT
1.1 CONTRACT FOR SERVICES. The Corporation hereby contracts for the
Services of Consultant and Consultant agrees to perform such duties and
responsibilities and to render advice and consulting services as may be
requested by the Corporation from time to time during the term of the consulting
arrangement in connection with the Corporation's business throughout the world
("Consulting Arrangement"). Consultant shall use his best efforts to keep the
Corporation informed of all corporate business opportunities which shall come to
his attention and appear beneficial to the Corporation's business so that the
Corporation can obtain the maximum benefits from Consultant's knowledge,
experience, and personal contacts.
1.2 CONSULTANT SHALL:
(a) ADVICE. Render advice and consulting services as may be requested
by the Corporation during the term of the Agreement in connection with the
Company's business throughout the world, specifically, Latin America and the
United States;
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(b) INFORMATION. Use best efforts to keep the Company informed of all
corporate business opportunities which shall come to his attention and appear
beneficial to the Company's business;
(c) COMPETITION. Advice, insights and consulting on competitive
conditions within the industry in Latin America and the U.S., their impact on
InComm and recommendations as to potential options and solutions in relation to
the market;
(d) INTRODUCTIONS. Introduction of InComm to other companies and/or
individuals in contemplation of strategic partnerships and relationships for
InComm so that InComm can obtain the maximum benefits from Consultant's
knowledge, experience, and personal contacts;
(e) SALES. Assist in the domestic and international sales efforts as
directed by Company when developing and implementing customer specific
solutions.
1.3 PROHIBITED SERVICES. The services to be rendered by the Consultant to
the Corporation shall under no circumstances include, directly or indirectly,
the following: (i) Any activities which could be deemed by the Securities and
Exchange Commission to constitute investment banking or any other activities
required by the Consultant to register as a broker-dealer under the Securities
Exchange Act of 1934; (ii) Any activities which could be deemed to be in
connection with the offer or sale of securities in a capital-raising
transaction; or (iii) Any market making or promotional activities regarding or
involving the Company's common stock.
2. RELATIONSHIP BETWEEN PARTIES. During the term of the Consulting Arrangement,
Consultant shall be deemed to be an independent contractor. He shall be free to
devote his time, energy and skill to any such person, firm or company as he
deems advisable except to the extent he is obligated to devote his time, energy
and skill to the Corporation pursuant to the terms of this Agreement. Consultant
shall not be considered as having an employee status vis-a-vis the Corporation,
or by virtue of the Consulting Arrangement being entitled to participate in any
plans, arrangements or distributions by the Corporation pertaining to or in
connection with any pension, stock, bonus, profit sharing, welfare benefits, or
similar benefits for the regular employees of the Corporation. The Corporation
shall not withhold any taxes in connection with the compensation due Consultant
hereunder, and Consultant will be responsible to the payment of any such taxes
and hereby agrees to indemnify the Corporation against nonpayment thereof.
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3. COMPENSATION FOR THE CONSULTING ARRANGEMENT
3.1 RESTRICTED SHARES. As full consideration and deemed earned for the
Consulting Services to be provided by the Consultant during this Agreement, the
Corporation will assign to Consultant, 3,000,000 (three million) restricted
shares of the company, Tradequest International, Inc.
3.3 REGISTRATION RIGHTS. Consultant shall have full piggyback registration
rights on any registration that is filed by the Corporation.
3.4 EXPENSES. Consultant shall be responsible for its own expenses
incurred during the term of the Agreement with the Corporation, unless otherwise
described in writing by both parties and approved by the Corporation.
4. TERM OF CONSULTING ARRANGEMENT. The Consulting Arrangement shall begin
effective as the Effective date of this Agreement and shall continue for a
period of 12 (twelve) months, (the "Consulting Period").
5. CONFIDENTIALITY COVENANTS.
5.1 ACKNOWLEDGEMENTS BY THE CONSULTANT. The Consultant acknowledges that:
(a) during the Consulting Period and as a part of his Consulting
Arrangement, the Consultant will be afforded access to Confidential Information
(as defined below);
(b) public disclosure of such Confidential Information could have an
adverse effect on the Corporation and its business.
5.2 AGREEMENTS OF THE CONSULTANT. In consideration of the compensation and
benefits to be paid or provided to the Consultant by the Corporation under this
Agreement, the Consultant covenants as follows:
(a) Confidentiality.
(i) During and following the Consulting Period, the Consultant
will hold in confidence the Confidential Information and will not
disclose it to any person except with the specific prior written
consent of the Corporation or except as otherwise expressly permitted
by the terms of this agreement.
(ii) Any trade secrets of the Corporation will be entitled to
all of the protections and benefits under Florida Statutes and common
law and any other applicable law. If any information that the
Corporation deems to be a trade secret is found by a court of competent
jurisdiction not to be a trade secret for purposes of this Agreement,
such information will, nevertheless, be considered Confidential
Information for the purposes of this Agreement. The Consultant hereby
waives any requirement that the Corporation submits proof of the
economic value of any trade secret or post a bond or other security.
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(iii) None of the foregoing obligations and restrictions
applies to any part of the Confidential Information that the Consultant
demonstrates was or became generally available to the public other than
as a result of a disclosure by the Consultant.
(iv) The Consultant will not remove from the Corporations
premises (except to the extent such removal is for purposes of the
performance of the Consultants duties at home or while traveling, or
except as otherwise specifically authorized by the Corporation, any
document, record, notebook, plan, model, component, device, or computer
software or code, whether embodied in a disk or in any other form
(collectively, the "Proprietary Items"). The Consultant recognizes
that, as between the Corporation and the Consultant, all of the
Proprietary Items, whether or not developed by the Consultant, are the
exclusive property of the Corporation. Upon termination of the
Agreement by either party, or upon the request of the Corporation
during the Consulting Period, the Consultant will return to the
Corporation all of the Proprietary Items in the Consultants possession
or subject to the Consultants control, the Consultant shall not retain
any copies, abstracts, sketches, or other physical embodiment of any of
the Proprietary Items.
5.3 DISPUTES OR CONTROVERSIES. The Consultant recognizes that should a
dispute or controversy arising from or relating to this Agreement be submitted
for adjudication to any court, arbitration panel, or other third party, the
preservation of the secrecy of Confidential Information may be jeopardized. All
pleadings, documents, testimony, and records relating to any such adjudication
will be maintained in secrecy and will be available for inspection by the
Corporation, the Consultant, and their respective attorneys and experts, who
will agree in advance and in writing, to receive and maintain all such
information in secrecy, except as may be limited by them in writing.
5.4 DEFINITIONS.
(a) For the purposes of this Section 5, "Confidential Information"
shall mean any and all:
(i) trade secrets concerning the business and affairs of the
Corporation, product specifications, data, know-how, formulae,
compositions, processes, designs, sketches, photographs, graphs,
drawings, samples, inventions and ideas, past, current, and planned
research and development, current and planned manufacturing or
distribution methods and processes, customer lists, current and
anticipated customer requirements, price lists, market studies,
business plans, computer software and programs (including object code
and source code), computer software and database technologies, systems,
structures, and architectures (and related formulae, compositions,
processes, improvements, devices, know-how, inventions, discoveries,
concepts, ideas, designs, methods and information, and any other
information, however documented, that is a trade secret within the
meaning of Chapter 688, Florida Statutes:
(ii) information concerning the business and affairs of the
Corporation (which includes historical financial statements, financial
projections and budgets, historical and projected sales, capital
spending budgets and plans, the names and backgrounds of key personnel,
personnel training and techniques and material, however documented; and
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(iii) notes, analysis, compilations, studies, summaries, and
other material prepared by or for the Corporation containing or based,
in whole or in part, on any information included.
6. NON-COMPETITION AND NON-INTERFERENCE
6.1 ACKNOWLEDGMENTS BY THE CONSULTANT. The Consultant acknowledges that:
(a) the services to be performed by him under this Agreement are of a
special, unique, unusual, extraordinary, and intellectual character;
(b) the Corporation's business is international in scope and its
products are marketed throughout the world;
(c) the Corporation competes with other business that is or could be
located in any part of the world;
(d) the provisions of this Section are reasonable and necessary to
protect the Corporations business.
6.2 COVENANTS OF THE CONSULTANT. In consideration of the acknowledgments
by the Consultant, and in consideration of the compensation and benefits to be
paid or provided to the Consultant by the Corporation, the Consultant covenants
the he MAY NOT, directly or indirectly:
(a) during the Consulting Period, except in the course of his
Consulting Arrangement hereunder, and during the Post-Consulting Period (as
defined below), engage or invest in, own, manage, operate, finance, control, or
participate in the ownership, management, operation, financing, or control of,
be employed by, associated with, or in any manner connected with, lend the
Consultants name or any similar name to, lend Consultant credit to or render
services or advice to, any business whose products or activities compete in
whole or in part with the products or activities of the Corporation anywhere in
the United States; provided, however, that the Consultant may purchase or
otherwise acquire up to (but not more than) one percent of any class of
securities of any enterprise (but without otherwise participating in the
activities of such enterprise) if such securities are listed on any national or
regional securities exchange or have been registered under Section 12(g) of the
Securities Exchange Act of 1934;
(b) whether for the Consultants own account or for the account or any
other person, at any time during the Consulting Period and the Post-Consulting
Period, solicit business of the same or similar type being carried on by the
Corporation, from any person known by the Consultant to be a customer of the
Corporation, whether or not the Consultant had personal contact with such person
during and by reason of the Consultants Consulting Arrangement with the
Corporation;
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(c) whether for the Consultant's own account or the account of any
other person:
(i) at any time during the Consulting Period and the
Post-Consulting Period, solicit, employ, or otherwise engage as any
employee, independent contractor, or otherwise, any person who is or
was an employee of the Corporation at any time during the Consulting
Period or in any manner induce or attempt to induce any employee of the
Corporation to terminate his Consulting Arrangement with the
Corporation;
(ii) at any time during the Consulting Period and for one (1)
year thereafter, interfere with the Corporation's relationship with any
person, including any person who at any time during the Consulting
Period was an employee, contractor, supplier, or customer of the
Corporation; or
(d) at any time during or after the Consulting Period, disparage the
Corporation or of its shareholders, directors, officers, employees, or agents.
For purposes of the Section 6.2, the term "Post-Consulting Period means
the one year period beginning on the date of termination of the Consultant's
Consulting Arrangement with the Corporation.
If any covenant in this Section 6.2 is held to be unreasonable,
arbitrary, or against public policy, such covenant will be considered to be
divisible with respect to scope, time and geographic area, and such lesser
scope, time, or geographic area, or all of the them, as a court of competent
jurisdiction may determine to be reasonable, not arbitrary, and not against
public policy, will be effective, binding and enforceable against the
Consultant. The period of time applicable to any covenant in this Section 6.2
will be extended by the duration of any violation by the Consultant of such
covenant.
7. NOTICES. All notices, consents, waivers, and other communications under this
Agreement must be in writing and will be deemed to have been duly given when;
(a) delivered by hand ( with written confirmation of receipt);
(b) sent by facsimile (with written confirmation of receipt), provided
that a copy is mailed by registered mail, return receipt requested, or;
(c) when received by the addressee, if sent by a nationally recognized
overnight delivery service (receipt requested), in each case to the appropriate
addresses and facsimile numbers set forth below (or to such other addresses and
facsimile numbers as a party may designate by notice to the other party):
If to the Corporation: InComm Holdings, Corp.
0000 Xxxx Xxxxxxxxxx Xxxx.
Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx, Chairman & CEO
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If to the Consultant: SOS Resources Services Inc.
000 X. Xxxx Xxxxxx
Xxxx Xxxxxxxxx, XX 00000
Attn: Xxxxxxxxx Xxxxx, President
8. BINDING EFFECT. This Agreement shall extend to, shall inure to the benefit
of and shall be binding upon all the parities hereto and upon all their
respective heirs, successors and representatives.
9. ENTIRE AGREEMENT. This Agreement, including the agreements incorporated by
reference, contains the entire Agreement among the parties hereto with respect
to the matters contemplated hereby and supersedes all prior agreements and
undertakings between the parties with respect to such matters. This Agreement
may not be amended, modified or terminated in whole or in part, except in
writing, executed by each of the parties hereto.
10. INDEMNIFICATION. Consultant hereby agrees to hold harmless and indemnify
Corporation from and against any and all loss, damage, expense, and costs
(including reasonable attorneys fees incurred in connection with the same)
incurred by Corporation as a result of Consultant's breach of any covenant or
agreement made herein.
11. SPECIFIC PERFORMANCE. The Consultant acknowledges that his obligations
hereunder are unique, and that it would be extremely impractical to measure the
resulting damages if he should default in his obligations under this Agreement.
Accordingly, in the event of the failure by Consultant to perform his
obligations hereunder, which failure constitutes a breach hereof by him, the
Corporation may, in addition to any other available right or remedies, xxx in
equity for specific performance and, in connection with any such suit, the
Consultant expressly waives the defense therein that the Corporation has an
adequate remedy at law.
12. SEVERABILITY. Should any part of any provision of this Agreement be declared
invalid by a court of competent jurisdiction, such decision or determination
shall not affect the validity of any remaining portion of such provision or any
other provision and the remainder the of Agreement shall remain in full force
and effect and shall be construed in all respects as if such invalid or
unenforceable provision or portion thereof were not contained herein. In the
event of a declaration of invalidity, the provision or portion thereof declared
invalid shall not necessarily be invalidated in its entirety, but shall be
observed and performed by the parties of the Agreement to the extent such
provision is valid and enforceable.
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13. SECTION HEADINGS. The section headings contained herein are for convenience
of reference only and shall not be considered any part of the terms of this
Agreement.
14. CHOICE OF LAW. This Agreement shall be interpreted and performed in
accordance with the laws of the State of Florida, and the parties agree,
notwithstanding the principles of conflicts of law, that the internal laws of
the State of Florida shall govern and control the validity, interpretation,
performance, and enforcement of this Agreement. Venue for any action under this
Agreement shall rest in Miami-Dade County Florida.
IN WITNESS WHEREOF, Consultant has hereunto put his hand, and the
Corporation has caused this instrument to be executed in its corporate name by
its duly authorized officer, all as of the day and year first above written.
CONSULTANT CORPORATION
SOS Resource Services Inc. InComm Holdings, Corp.
Xxxxxxxxx Xxxxx, President Xxxx Xxxxxxx, Chairman & CEO
By: /s/ Xxxxxxxxx Xxxxx By: /s/ Xxxx Xxxxxxx
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