Exhibit 99.1
Consulting Agreement with Xxxx Xxxxx
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT, dated as of June 11, 2004 (the "Agreement"),
by and between Multimedia Tutorial Services, Inc., a Delaware Corporation (the
"Company") and X. X. Xxxxx (the "Consultant") (individually, a "Party",
collectively, the "Parties").
RECITALS
WHEREAS, the Company has requested of Consultant and the Consultant has
agreed to provide and has previously provided certain strategic, financial and
other general corporate consulting services to the Company.
WHEREAS, in connection with and in consideration for such services, the
Company has agreed to compensate Consultant with shares of common stock of the
Company in lieu of cash payment.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the Parties agree as follows:
1. SERVICES. Consultant agrees to familiarize itself to the extent it
deems appropriate and feasible with the business, operations, properties,
financial condition and prospects of the Company and to perform and provide, as
the Company reasonably and specifically requests, certain strategic, financial,
and other general corporate consulting services to the Company ("Services"),
including but not limited to: (i) identifying prospective strategic partners and
strategic alliances (except reverse mergers designed to take a private company
public); (ii) planning, strategizing and negotiating with potential strategic
business partners; (iii) assisting with business development; (iv) reporting as
to developments concerning the industry which may be relevant or of interest or
concern to the Company or the Company's business; (v) developing strategic
planning issues; (vi) providing management consulting services including:
analyzing historical operational performance, reviewing operational performance
of the Company, making recommendations to enhance the operational efficiency of
the Company; and (vii) consulting on alternatives to enhance the growth of the
Company. NONE OF THE SERVICES PROVIDED BY CONSULTANT HEREIN SHALL INVOLVE
FINANCIAL PUBLIC RELATIONS, INVESTOR RELATIONS OR THE RAISING OF DEBT OR EQUITY
CAPITAL, AND NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED AS TO OBLIGATE OR
REQUIRE THE CONSULTANT TO RAISE DEBT OR EQUITY CAPITAL.
The Parties hereby confirm and acknowledge that the services rendered
by Consultant hereunder: (a) consist and will consist of bona fide services
rendered and to be rendered to Company, (b) are not and will not be in
connection with the offer or sale of securities in capital raising transactions,
and (c) do not and will not promote or maintain a market for the securities of
Company.
2. COMPENSATION.
(i) In consideration of the Services to be provided by the Consultant,
and in lieu of a cash payment, the Company agrees to issue to Consultant 500,000
shares of common stock of the Company.
(ii) In consideration of the Services previously rendered by the
Consultant, and in lieu of a cash payment, the Company agrees to issue to
Consultant 1,000,000 shares of common stock of the Company.
(iii) The Company hereby agrees to register the Shares by filing a Form
S-8 Registration Statement covering the Shares on the date of this Agreement.
Consultant shall take any action reasonably requested by the Company in
connection with registration or qualification of the Shares under federal or
state securities laws.
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(iv) It is expressly understood and agreed that in connection with the
Services to be performed by the Consultant, the Consultant shall be solely
responsible for any and all taxes arising from the consulting fees paid to the
Consultant hereinafter.
3. TERM. Consultant's engagement shall be for a period of Twelve (12)
months ("Term"). Thereafter, the agreement may be terminated by either the
Company or Consultant at any time, with or without cause, upon written notice to
that effect to the other party.
4. INFORMATION. The Company shall furnish Consultant such information
as Consultant reasonably requests in connection with the performance of its
services hereunder (all such information so furnished is referred to herein as
the "Information"). The Company understands and agrees that Consultant, in
performing its services hereunder, will use and rely upon the Information as
well as publicly available information regarding the Company and any potential
partners and that Consultant shall not assume responsibility for independent
verification of any information, whether publicly available or otherwise
furnished to it, concerning the Company or any potential partner, including,
without limitation, any financial information, forecasts or projections,
considered by Consultant in connection with the rendering of its services.
Accordingly, Consultant shall be entitled to assume and rely upon the accuracy
and completeness of all such information and is not required to conduct a
physical inspection of any of the properties or assets, or to prepare or obtain
any independent evaluation or appraisal of any of the assets or liabilities, of
the Company or any potential partner. With respect to any financial forecasts
and projections made available to Consultant by the Company or any potential
partners and used by Consultant in its analysis, Consultant shall be entitled to
assume that such forecasts and projections have been reasonably prepared on
bases reflecting the best currently available estimates and judgments of the
management of the Company or any potential partner, as the case may be, as to
the matters covered thereby.
5. TIMELY APPRAISALS. The Company hereby agrees to use its commercially
reasonable efforts to keep Consultant up to date and apprised of all business,
market and legal developments related to the Company and its operations and
management. Accordingly:
(i) the Company shall provide Consultant with copies of all amendments,
revisions and changes to its business and marketing plans, bylaws, articles of
incorporation, private placement memoranda, key contracts, employment and
consulting agreements and other operational agreements;
(ii) the Company shall promptly notify Consultant of all new contracts
agreements, joint ventures or filings with any state, federal or local
administrative agency, including without limitation the SEC, NASD or any state
agency, and shall provide all related documents, including copies of the exact
documents filed, to Consultant, including without limitation, all annual
reports, quarterly reports and notices of change of events, and registration
statements filed with the SEC and any state agency, directly to Consultant;
(iii) the Company shall also provide directly to Consultant current
financial statements, including balance sheets, income statements, cash flows
and all other documents provided or generated by the Company in the normal
course of its business and requested by Consultant from time to time; and
(iv) Consultant shall keep all documents and information supplied to it
hereunder confidential.
6. REPRESENTATIONS AND WARRANTIES. The Consultant hereby represents and
warrants to the Company that:
(i) he has full legal capacity to enter into this Agreement and to
provide the Services hereunder without violation or conflict with any other
agreement or instrument to which the Consultant is a party or may be bound;
(ii) in the course of performing the Services hereunder, the Consultant
will not infringe the patent, trademark or copyright (collectively,
"Intellectual Property") of any third party;
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(iii) the execution, delivery and performance of this Agreement does
not and will not conflict with, violate or breach its constituent documents or
any agreement (including, without limitation, any other distribution agreement),
decree, order or judgment or any law or regulation to which it is a party or
subject or by which it or any of its properties or assets is bound.
7. RELATIONSHIP OF THE PARTIES. The Consultant shall be an independent
contractor and the Consultant shall not be considered in any manner an employee
of the Company and the relationship of the Company and the Consultant shall not
in any manner create an employer-employee relationship between the parties.
8. RELIANCE ON OTHERS. The Company confirms that it will rely on its
own counsel, accountants and other similar expert advisors for legal,
accounting, tax and other similar advice.
9. NO RIGHTS IN SHAREHOLDERS, ETC. The Company recognizes that
Consultant has been engaged only by the Company, and that the Company's
engagement of Consultant is not deemed to be on behalf of and is not intended to
confer rights upon any shareholder, partner or other owner of the Company or any
other person not a party hereto as against Consultant or any of its affiliates
or any of their respective directors, officers, agents, employees or
representatives. Unless otherwise expressly agreed, no one other than the
Company is authorized to rely upon the Company's engagement of Consultant or any
statements, advice, opinions or conduct by Consultant. Without limiting the
foregoing, any opinions or advice rendered to the Company's Board of Directors
or management in the course of the Company's engagement of Consultant are for
the purpose of assisting the Board or management, as the case may be, in
evaluating the Transaction and do not constitute a recommendation to any
shareholder of the Company concerning action that such shareholder might or
should take in connection with the Transaction. Consultant's role herein is that
of an independent contractor; nothing herein is intended to create or shall be
construed as creating a fiduciary relationship between the Company and
Consultant.
10. NO WAIVER. The failure of any of the parties hereto to enforce any
provision hereof on any occasion shall not be deemed to be a waiver of any
preceding or succeeding breach of such provision or of any other provision.
11. ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement
and understanding of the parties hereto.
12. AMENDMENTS. No amendment, modification or waiver of any provision
herein shall be effective unless in writing, executed by each of the parties
hereto.
13. GOVERNING LAW; JURISDICTION. This Agreement shall be construed,
interpreted and enforced in accordance with and shall be governed by the laws of
the State of New York applicable to agreements made and to be performed entirely
therein. In the event that either Party hereto shall take legal action to
enforce any of the provisions of this Agreement, the Parties agree that the
exclusive jurisdiction for such legal action shall be the state courts of New
York or the federal courts residing in the State of New York.
14. BINDING EFFECT. This Agreement shall bind and inure to the benefit
of the Parties, their successors and assigns.
15. NOTICES. Any notice under the provisions of this Agreement shall be
deemed given when received and shall be given by hand, reputable overnight
courier service or by registered or certified mail, return receipt requested,
directed to the addresses set forth above, unless notice of a new address has
been sent pursuant to the terms of this section.
16. UNENFORCEABILITY;SEVERABILITY. If any provision of this Agreement
is found to be void or unenforceable by a court of competent jurisdiction, the
remaining provisions of this Agreement shall, nevertheless, be binding upon the
Parties with the same force and effect as though the unenforceable part had been
severed and deleted.
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17. LITIGATION COSTS. If any legal action or other proceeding is
brought for the enforcement of this Agreement or to remedy its breach, the
prevailing party in such action or proceeding shall be entitled to recover its
actual attorney's fees and other costs incurred in the action or proceeding, in
addition to such other relief to which it may be entitled.
18. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be deemed to be duplicate originals.
IN WITNESS WHEREOF, the Parties hereto have executed this instrument
the date first above written.
Multimedia Tutorial Services, Inc. CONSULTANT
By: /s/ Xxxxx Xxxxxxxx /s/ X.X. Xxxxx
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Xxxxx Xxxxxxxx X. X. Xxxxx
President
